
    The State vs. Duncan and Trott.
    When an indictment is found by a grand jury, one of whom is disqualified, it is void and of no effect.
    An indictment is void if one of the grand jurors by whom it was found was neither a freeholder nor house holder.
    The disqualification of one of the grand jurors finding an indictment may be taken advantage of by plea in abatement, before the general issue is pleaded.
    The defendants were indicted for gaming in Warren county. They pleaded in abatement to the indictment, that Lewis Thomas, one of the grand jury, who found the indictment, was not a freeholder or householder.— This plea was demurred to by the attorney general. The demurrer was overruled, and the plea sustained by the circuit court. From the judgment of the circuit court, overruling the demurrer, the attorney general prosecuted a writ of error to this court.
    
      J. B. M’Cormick, for the State.
    There will probably not be more than one point of difficulty presented by the record in this cause.
    A bill of indictment was found against the defendants for unlawful gaming, at the January term, 1833, of Warren circuit court. At the July term, 1833, the', defendants appeared and filed a plea in abatement, stating that Thomas, one of the grand jurors who found said bill, was neither a. freeholder nor householder in the county of Warren.
    The attorney general demurred; defendants joined in ■demurrer; the court overruled the demurrer and quashed the indictment.
    This, it is believed, was error. Blackstone lays it. down that the grand jurors should be free holders. 4 Black. 302.
    Chitty, in his Treatise on Criminal Law, says, “it is perfectly clear that all persons sitting upon the grand inquest must be good and lawful men, by which it is intended they must be liege subjects of the king, neither aliens nor persons outlawed,” &c. t Chit. 307. And if a man thus disqualified should serve upon the grand jury, the indictment may be avoided. But it is believed no case can be found where it was ever decided that a want of afreehold estate in the grand juror could be pleaded in abatement, or that the indictment could be quashed for that cause.
    A freehold estate was a necessary qualification for a grand juror before the act of 1779, passed in North-Carolina; so that the several acts passed on this subject, up to 1809, were but declaratory of the law as it stood before. In 1809, the qualification in this state was reduced to that of a householder.
    The mode of appointing a grand jury is pointed out by the several acts of North Carolina and Tennessee. The constitution of this state protects every freeman from a criminal accusation in the courts of justice, except by presentment or indictment; but the subject of qualifications of the jurors, and the mode of selecting the grand jurors, was left open for legislation.
    The legislature has, from time to time, given directions to the courts upon this subject. The county court shall appoint twenty-six freeholders, or householders, &c. out of which not more than thirteen shall be taken, for a grand jury.
    The court shall not appoint any one who has a suit in court.
    The court shall not appoint the same person twice in succession, &c.
    The indictment is but an accusation; and when a grand jury has been thus selected, and the court has passed upon them that they are good and lawful men, no averment will be received against the record. The court shall not, at one term, say he is a good and lawful man, and at the next, say he is not, and thus reverse its own 1 J 3 jud gment.
    The court is made the judge of the qualification; and if the court should act corruptly, why, it must answer by impeachment. Discretionary powers have to be vested, where the courts act on directory statutes; and although they may err in the exercise of that discretion, it does not follow, that such error will be ground for setting aside the proceedings; many cases in point might be given.
    Tlje statutes afford sufficient security against improper criminal accusations; and when a presentment, or an indictment, is filed in a court of competent jurisdiction, with the averment that the same was found by good and lawful men, the defendant shall answer., See 9 Mass. Rep. 107.
    The grand jurors are not required to have more or greater qualifications than the petit jurors; and was it ever decided that a verdict was void, because one of the jurors wanted the statutory qualifications? Surely not. But if one of the jurors rendering the verdict, had been convicted oí a crime that rendered him' infamous, a record of such conviction, being produced, would be good ground to set aside the verdict.
    
      «St. J. Marchhanks, for the defendants.
    The first question for the consideration of the court is, does the law of this State require grand jurors to be either freeholders or householders? It certainly does; the common law required that all jurors should be possessed of a freehold, but did not require the freehold to be of any particular value, so that any, even the least, was sufficient. 7 Bacon’s Abr. title Juries, letter E, part 3d: 4 Black. Com. 301: 2 Hawkins P. C. 308, sec. 19, note 4: 2 Hale, 155: 3 Thos. Coke, 517. The common law, not requiring a freehold of any particular value, induced the parliament of Great Britain, at different times, in particular cases, to require a freehold of a particular value; for . , - TT TT „ , _ . , . instance, the statute ot II Henry 5, ch. 3, required jurors who were called upon to pass an inquest upon the death of a man, to have a freehold of the yearly value of twenty shillings. 3 Bacon, 752. I need not cite authorities to show that the common law of England is in force here. But if it was not, we have an express statute upon the statute both as to grand and petit juries. See the act of 1809, ch. 19, sec. 2: 1 Haywood and Cobbs, 209: see also Cornwell vs. The State, Martin and Yerger, 149.
    The second question is, will the incompetency of one of the jurors, that is, Lewis Thomas, who was neither a householder nor freeholder, vitiate the finding of the whole? It will. 3 Bacon’s Abr. title Juries, 727. We know that the concurrence of twelve out of the thirteen jurors is sufficient to find an indictment. One of the competent jurors may not have concurred in the finding and the incompetent one may; he could also have much influence upon the others by reasoning and arguing the matter of inquiry with the others.
    The third and last question for the consideration of the court is, can the incompetency of the grand jury after the finding, and before the defendant has pleaded not guilty, be taken advantage of by plea? This question is already settled, and is not open for investigation. This court in the case of Bennet vs. The State, decided in the affirmative. Martin and Yerger, 135. And so is the rule expressly laid down in 1 Chitty’s Criminal Law, 207, (margin.) The latter author says, that if the objection is known, the juror may be challenged before he empannelled, if not, exception may be taken to it by plea at any time before the general issue is pleaded.
   Catron, Ch. J.

delivered the opinion of the court.

Formerly it was required that grand jurors should be freeholders. The act of 1809, ch. 119, declared every white male citizen, being a householder, and twenty-one years of age, shall be deemed legally qualified to act as a grand or petit juror, except in cases, the venue of which has been changed.

Suppose an indictment was found by a grand jury, no person composing of which was qualified? All will admit the indictment would be merely void in fact, and ought not to be answered if the fact was made legally to appear. So if any one be incompetent, it is equally void, because the proper number to constitute the grand inquest is wanting; and because he who is incompetent shall not be one of the triers of the offence at any stage of the prosecution. There seems at some early stage of the proceeding by indictment, to have been some doubt whether the indictment was void, because of the incompetency of one of the grand jurors, to set which at rest, the II Henry 4, ch. 9, enacted, “that any indictment taken by a jury, one of whom is unqualified, shall be altogether void and of no effect.” 1 Chitty’s Crim. Law, 307: State vs. Bennett, Martin and Yerger’s Rep. 135.

The authorities cited shew, that the proper, and almost only mode of taking advantage of the objection is by plea in abatement. The judgment, therefore, must be affirmed.

Judgment affirmed.  