
    Jeremiah Beason et al. v. The State of Mississippi.
    1. Criminal law : the affirmation of issue on defendant’s plea attacking the validity of the grand jury is on the state. — Where the State takes issue upon the defendant’s plea in abatement, denying the validity of the indictment, upon the ground of the incompeteney of one of the grand jury, who found and returned it into court, the affirmation of the proof is upon the State.
    2. Same : jury : grand juror who found indictment incompetent as a petit juror in that case. — One of the grand jury who found and returned the bill of indictment, is incompetent to si't as a petit juror to try an issue taken upon the defendant’s plea in abatement, denying the validity of the indictment. See 3 Black Com. 363; State v. O’Driscoll, 2 Bay. 155 ; Barlow v. The State, 2 Blackf. R. 144.
    3. Instructions ': irrelevant, should be refused. — Instructions which appear to have no particular application to the issue before the jury, and are not calculated to direct the jury as to any particular point or principle necessary in determining the issue, should be refused; and for this reason, the following instruction, asked for on the trial of an issue taken upon the defendant’s plea in abatement, alleging the non-residence of one of the grand jury who found the indictment, was held improper, viz., “that before a man can be put upon his trial by a petit jury, an indictment must be presented against him by a grand jury, above all exceptions, of his own county; and this is a constitutional right, of which every man has the right to avail himself.”
    4. Domicile : declarations of party not conclusive as to his intention.— The declarations of a party accompanying his removal, are competent evidence as to his intention in relation to a change of domicile, but they are not conclusive.
    In error from the Circuit Court of Hancock county. Hon. William M. Hancock, judge.
    The facts necessary to be stated will be found in the opinion of the court, except the instructions given by the Circuit Court, on behalf of the State, and they are as follows:—
    “ 1. That, in the matter now before the jury, the State is not bound to make out its case beyond a reasonable doubt, but if the preponderance of the testimony is that the juryman was a citizen of the county, at the time of the finding of the indictment, it is sufficient, and the jury should find in favor of the State.
    
      “ 2. That if it has been proven that the juror was, before the finding of the bill of indictment, a citizen of the county of Hancock, the presumption is that he continued a citizen thereof until the contrary appears; and it is incumbent on the defendant to show that his citizenship has been changed, unless that fact appears from evidence introduced by the State.
    
      “ 3. The mere intention to change a residence is not sufficient; the intent must have been carried into effect by actual removal.
    “ 4. That an intent to remove, upon the happening of a contingency, such, for instance, as that of getting into business, does not constitute a change of domicile, until that contingency happens.
    
      “5. That if the juror intended to remove, upon getting into business, and if at the time of his service as juror he had made no fixed and permanent arrangement for getting into business, then his domicile was not changed, and he was a competent grand juror, and the jury should find for the State.
    “ 6. That to authorize the jury to find for the defendant, it must appear not only that there was an intent to remove, but that intent must have been consummated by actual and permanent arrangements for removal; and if it does not so appear, the jury must find for the State.
    “ 7. If it be merely in doubt whether the citizenship of the juror has been changed, and it appears that he was once a citizen of the county, the jury should find for the State.
    “ 8. That the solemn and deliberate statement of a person, under oath, ought ordinarily to be credited, rather than the casual statements -of the same person at other times in conversation.”
    
      R. Seal, for plaintiff in error,
    Cited Story Confl. Laws, 39.
    
      T. J. Wharton, for the State.
   Handy, J.,

delivered the opinion of the court.

This was an indictment for playing at a game of hazard for money, contrary to the statute; to which the defendants pleaded in abatement that Samuel White, Jr., one of the members composing the grand jury by whom the indictment was found, was not at the time the bill was found an inhabitant and citizen of the county in- which it was found, but was in fact then a citizen of the State of Louisiana. Upon this, the State took issue, and a trial was had thereupon, which resulted in a verdict for the State.

The case is brought up upon several bills of exception taken to the rulings of the court during the trial, and in overruling a motion for a new trial; and upon this several grounds of error are insisted upon, which will be noticed in the order in which they appear in the record. '

The first error assigned is, in the ruling of the court, that the proof of the affirmative of the issue joined, was upon the State. This was manifestly correct. The plea denied the material fact, upon which the validity of the indictment depended, that one of the grand jurors was a resident of the county, and upon that denial the State took issue. It was, therefore, upon the State to establish the fact denied, and which was material to sustain the indictment.

The next objection is taken to the court’s overruling of the defendants’ challenge of John Moore, one of the'jurors who tried the issue. That juror was challenged by the defendants, on the ground that he had been a member of the grand jury by whom the indictment was found, but the challenge was not allowed.

It has always been considered good cause of challenge that a juror was under any bias, and upon that principle it is laid down as good ground of objection to a juror that he was formerly a juror in the same cause. 3 Bl. Com. 363. By reason of the bias which must be presumed to exist in his mind under such circumstances, he cannot be altogether free and impartial to try the issue.. And the reason of this rule is applicable in all its force to grand jurors who had participated in finding the indictment, and were afterwards called to sit as jurors upon the trial; for such a juror would naturally take his seat upon the jury to try the issue, with the impression, if not with the decided bias of mind, that the indictment was just and true, and should be sustained; and accordingly, it has been considered a good cause of challenge of a juror, that he was a member of the grand jury who found the indictment. State v. O’Driscoll, 2 Bay. 155; Barlow v. State, 2 Blackf. 114. There was error, therefore, in overruling the challenge of this juror, and in permitting -him to sit upon the trial.

The next objection applies to the instructions given to the jury at the instance of the State, and in the refusal of those asked in behalf of the defendants. There appears to be no error in those given in behalf of the State. The rules applicable to the issue are clearly and correctly stated, so as to enable the jury to determine the question submitted to them upon proper principles.

The first instruction asked in behalf of the defendants is, “ That before a man can be put upon his trial by a petit jury, an indictment must be presented against him by a grand jury above all exceptions, of his own county; and this is a constitutional right, of which every man has the right to avail himself.”

This instruction appears to have no particular application to the issue before the jury, which was, -whether a particular member of the grand jury was a resident of the county when the indictment was found. It was not calculated to direct the jury as to any practical point or. principle, necessary in determining the issue, and it was, therefore, irrelevant, and properly refused.

The other instruction is, “ That if the jury believe from the evidence that the grand juror, White, went to New Orleans, with the open and avowed intention of remaining there if he could get business, and did actually get a situation, and entered upon his business there before the last term of the court, then there was a change of his domicile, and they should find for the defendants.”

The point of this instruction depends upon the fact of the juror going to New Orleans, with the open and avowed intention of remaining there if he could get into business ; and if he did get into business, that that was conclusive of his change of residence. But the true question was, not what he declared to be his intention— for, though such declarations were competent evidence, they were not conclusive of his real intention, — but what was his real intention in going to New Orleans. It is plain that he might have declared his intention of becoming a resident there upon obtaining business, and yet afterwards have changed his mind, and not really have intended to become a resident of New Orleans when he entered upon business there. So that the minds of the jury should have been directed to the fact, what was his intention as to residence, when he entered into business in New Orleans, and not what he had previously declared as to his intention. In this respect the instruction is erroneous, and was properly refused. The instruction was also unnecessary, because the rule upon the point, had already been stated in the fifth instruction given at the instance of the State, which stated the rule as favorably to the defendants as was proper.

It is also objected that the verdict was contrary to the evidence, and, therefore, that a new trial should -have been granted. We deem it unnecessary to consider this point, as the case will go back for a neAV trial, and it is not proper that we should express an opinion which might have an effect upon the trial of the issue.

An objection is also here taken to the organization of the grand jury. But as that objection was not made in the court below, it cannot be noticed here.

For the error above stated, the judgment is reversed, and the cause remanded for a new trial.  