
    Addison Portis vs. The State of Mississippi.
    A plea in abatement to an indictment, alleging, in substance, “ That the individuals composing the venire from which the grand jury was chosen by lot, were not drawn by the clerk and sheriff from box number one, which, by the act of 1830, the clerk of the circuit court was bound to keep, and in which the names of all freeholders and householders liable to serve on juries should be deposited,” is a good plea, and a demurrer to it should be overruled.
    After a grand jury has been empanelled, sworn, and charged, the court has no authority to discharge one of their number, upon his application, on account of the indisposition of his wife, and cause a substitute to be summoned and sworn in as a grand juror in his stead ; and if such substitute take part in the deliberations of the grand jury, the whole body is vitiated, and all its acts are void.
    If, however, after a grand juror has been irregularly discharged, a sufficient number to constitute a legal grand jury remain, the body will preserve its organization, and its acts will be valid, provided that no substitute be sworn in.
    The only cases in which the circuit courts possess the authority to cause other grand jurors to be sworn, after the original panel has been sworn, are those in which some grand juror, after he has been empanelled and sworn, has died, or is sick or absent. And semble, that in such cases the court may order substitutes to be summoned from amongst the by-standers.
    In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge.
    The facts of the case as shown by the record are, that Addison Portis, at the March term, 1850, of the circuit court of Tippah county, was indicted by the grand jury of said county for playing a game of cards for money. At the September term of the said circuit court, 1850, the defendant (Portis) appeared and pleaded four pleas to said bill of indictment, in abatement. 1st. That after the jury at the March term, 1850, of said circuit court had been called, and one of the grand jurors of the thirteen drawn, and the balance of the venire had been apportioned as petit jurors, it being the second day of the term, Waldrop, one of the grand jurors, applied to the court to be discharged from further service, on account of the sickness'of his wife ; and he was thereupon discharged, and C. A. Green was sworn as a grand juror in his stead, which juror was taken from the by-standers, and was not one of the venire facias. The three first pleas of defendant involve the question of the authority of the court to discharge a grand juror on account of the sickness of his wife, and when a juror is discharged, that the vacancy must be filled out of the balance of the venire then serving^s jurors.
    The fourth plea involves the-question of the legal organization of the whole grand jury, and denies that the assessor of taxes had returned a list of the householders of the county, as it was his duty to do under the statute, out of whom a grand jury must be drawn ; and that there was in fact no legal grand jury to find the indictment against defendant, and prays it might be quashed. These pleas were all demurred to by the state, and the demurrers sustained, and upon a plea of not guilty the defendant was convicted, when a writ of error from the judgment of the court below, sustaining said demurrers, was prayed to this court.
    
      Price & Jackson, for appellant,
    Filed an elaborate brief, and relied chiefly on the following authorities, to show that the decision of the court below sustaining the demurrer to the pleas was erroneous. Rawls v. The State, 8 S. & M. 599 ; Me Quillen v. The Stale, 8 lb. 587 ; Barney v. The State, 12 lb. 68 ; Hutch. Code, 886; 1 Morris, R. 192.
    
      G-lenn, attorney-general, for the state,
    Contended, the opinion of the court below was correct, and cited the following authorities: Hutch. Code, 886; lb. 879 ; lb. 887; 2 Wheelen’s Cr. Cases, 473-476; 2 Gall. Rep. 364 ; King v. The State, 5 How. 732; Dowling v. The State, 5 S. & M. 664 ; Planters Bank v. Sharp, 4 lb. 85; 13 lb. 287, 288.
    
      J. W Thompson, on the same side.
   Mr. Chief Justice Smith

delivered the opinion of the court.

This was an indictment for a violation of the statute against gaming, tried in the circuit court of Tippah. The - defence relied on was presented through several pleas in abatement to the indictment. These pleas were adjudged insufficient by the court; and the defendant was convicted on the issue of not guilty.

The exceptions taken to the proceedings in the circuit court are, that the court erred in sustaining the demurrer to the defendant’s last plea; that the court erred in discharging a member of the grand jury, by whom the indictment was preferred, after he had been chosen, empanelled and sworn as such, for the reason assigned in the record ; and that the court erred in ordering the sheriff to summon a substitute from amongst the by-standers to supply the vacancy occasioned by the discharge of the original.

1. The last plea alleges in substance that the names of the individuals composing the venire, from which the grand jury was chosen by lot, were not drawn by the clerk and sheriff from Jot number one, which by the statute of 1830 the clerk of the circuit court was bound to keep, and in which the names of all freeholders and householders of the county, liable to serve on juries, should be deposited.

The demurrer admitted the truth of the facts averred in the plea, which, if well .pleaded, doubtless constituted a valid de-fence to the action of the indictment; as it is essential to the validity of an indictment, that the members of the grand jury, by whom it was preferred, should not only possess the requisite qualifications, but that they should also be drawn and empan-elled in accordance with the directions of the statute. McQuillen v. The State, 8 S. & M. 587; Barney v. The State, 12 Ib. 68.

We think the plea was technically correct. Hence the court erred in sustaining the demurrer.

2, On the second day of the term, after the grand jury had been organized and charged, one of their number, who had been regularly drp,wn, empanelled and sworn as such, upon his own application was discharged, and a substitute ordered to be summoned by the court from the by-standers. The reason assigned by the juror for the application was the indisposition of his wife.

This action of the court is the subject-matter of the next exception. The question involved is one of first impression in this court, and of some practical importance. Counsel have not furnished us with references to adjudicated cases upon this point, if indeed they are to be found.

If the circuit courts possess the authority to discharge a grand juror for the cause appearing in the record, they necessarily possess an unlimited discretion over the subject; for the reason given for exercising the discretion in this particular case, involved neither the legal incapacity, nor the mental or physical inability of the juror. It does not even appear that the illness of his wife was of such a character as to require his presence at home.

The authority exercised in this instance is claimed for the circuit courts, as a power necessarily incident to them as courts of oyer and terminer. The learned counsel for the state have, however, not produced any direct authority in support of this position, and we are unable to deduce an argument in favor of the doctrine from the power exercised by these courts in reference to petit jurors.

The courts of oyer and terminer in England, and the circuit court of this state, by virtue of their character as such, doubtless possess the power to adjourn or dismiss the grand jury whenever they deem it proper to do so. But it is apprehended that the power to suspend the functions of a grand jury by discharging them, is clearly to be distinguished from the authority to discharge a part or the whole of its members, and the consequent right to cause others to be sworn in their stead. The capricious or vicious exercise of the power in the one case, would doubtless constitute a public wrong, but it could not impair the integrity of grand juries; but in the other, the power in its full extent, as claimed for the courts, might be, and probably would be so used, as radically to affect their organization, and thereby seriously impair the sanctity and purity of this invaluable institution.

In our examination of this subject, we have not been able to discover a single case in which this power was claimed or exercised by the courts in England or this country, as resulting from their common law authority. The books are silent on the subject, and we presume for the reason that the power did not exist. We dissent from the proposition.

The statute laws of this state have not, certainly, in direct terms, vested the circuit courts with an unlimited jurisdiction on this subject. They have’ not, in fact, expressly clothed them with the power to discharge a grand juror for any cause whatever; unless the provision which empowers them to cause a grand juror to be sworn in the place of one who is sick or absent, be held to convey such authority in these specified cases.

The cases in which the courts have power to cause substituted jurors to be sworn, are designated in the statute. The cases are, where the grand juror, after he has been empanelled and sworn, has died, is sick, or absent. The specification of the occasions on which this power may be exercised by the courts, upon a plain principle, would seem to exclude the authority of the courts to supply vacancies occurring in grand juries from any other cause. We have seen that the circuit courts, by virtue of their common law power as courts of oyer and terminer, do not possess a discretionary right to discharge a grand juror after they have been empanelled and sworn. If, then, the conclusion be just, that the authority of the courts “ to cause other grand jurors to be sworn,” is limited by the statute to the cases specified, it follows that the legislature could not have intended to vest in them an unrestricted discretion over the subject. For it would be absurd to suppose that the legislature designed that a circuit judge should possess the power to discharge, at his dicretion, any number of the members of a grand jury which had been regularly empanelled and sworn, and yet deny to him the authority to cause the vacancies thereby occasioned to be supplied.

It is manifest, if the court were correct in the case under consideration, that the general power is unrestricted. If it were lawful for the judge to discharge one member of the grand jury without cause, he might, with equal propriety, so far as the mere question of power is concerned, discharge any number on his own mere motion, and with as little cause. The practical results of this doctrine are too manifest to require elaboration, and too much opposed to the spirit of the laws regulating the organization of juries to be sanctioned by this court.

But it does not follow, that by this unauthorized act of the court, the grand jury were rendered invalid. If the action of the court had ceased here, no such result would have followed. For after the discharge of the juror in question, a sufficient number to constitute a legal grand jury remained; the body would have preserved its organization, and possessing all the requisites of a legally constituted grand jury, its acts to all intents would have been valid.

But the court, as we have seen, having acted without authority, manifestly, could not by such illegal and void act acquire a right to cause the substitute to be sworn in the place of the discharged grand juror." The admission, therefore, of this person upon the panel of the' grand jury, and his participation in their deliberations, yitiated the whole body. It could not then be said that it'was a grand jury drawn and empanelled in accordance with the directions of the law. Hence, upon the well settled doctrines of this com-t, all of its acts were void.

■ There remains another objection. It is, that the comt improperly ordered the grand juror, who was sworn as a substitute, to be summoned by the sheriff from amongst the by-standers.

It is argued, that this juror should have been selected by lot from the remainder of the original venire then in attendance upon the court.

We do not concur in the validity of this exception. The statute is indefinite on the subject. It has not prescribed the mode in which jurors in such cases shall be selected. The method adopted by the court in thisuase, is the one which, we believe, has been uniformly pursued, and has been, at least indirectly, sanctioned by this court.

Let the judgment be reversed, and the indictment quashed.  