
    Jetton vs. The State.
    
      Criauixal Law. Grand. Jury. 1Í there he placed on the grand jury panel pevsous not competent to be grand jurors, tlie court, to which the panel is returned, may strike them off, and summon others in their stead. 1 Chitty’s C. L. 309; 3837, c 53, $ 4; c 69, (2; 1779, c6,}4.
    SAME. How witnesses sent to grand jury to be sworn. If a witness who is sent to the grand jury be sworn in open court, thoughnotin the immediate presence of the judge — or even in his temporary absence from thebench, it is
    SAME. Indictment and presentment, quashing. The court is not bound to quash an indictment or presentment. The party may be left, in the discretion of the court, to demur, Szc. Hawkins, Bk. 2, c 25, (.146; 3 Dev. & Bat. 195.
    On the 5th of April,'1838, the grand jury of the corporation of Murfreesboro’, presented, that the defendant, “on the first day of March, 1838, with force and arms, iti the corporation aforesaid, unlawfully did encourage and promote a certain unlawful game of hazard at cards, for money and valuable bank notes, and then and there, with force and arms unlawfully did play for and bet money and valuable bank notes, at said unlawful game of hazard at cards, contrary to the form of the statutes,” &c.
    At May term of the court, the defendant, by attorney,’ moved to quash the presentment, which motion being dis charged, the defendant pleaded in abatement;
    1. That one Jacob Decker, who was empannelled as a-grand juror at the' March term of the court for the corporation, &c. for the space of three months next ensuing his said appointment, and during which time, to wit, at the April' term of said court, said presentment purports to be found, was neither a freeholder in the stale, nor a householder of the state and corporation, at the time of his appointment, or at the time of finding the presentment; and said Decker was,at the April term of the court, excused or discharged from' further attendance as a juror, and another individual was-elected in his stead, &c.
    2. That the presentment had not been found by the grand' jury upon their own knowledge, but upon the information of a certain William D. Hicks, who was sent for, and caused to go before the grand jury to give evidence, &c.;- and that Hicks was not sworn before the court to give evidence to the • • . ° jury, previous to his being examined and giving testimony against the defendant, &c.
    December 13.
    The attorney for the corporation demurred to the first plea, and replied to the second, and issues were joined accordingly.
    The court sustained the demurrer; and a jury was empan-nelled to try the issue of fact upon the second plea, to whom testimony was submitted in substance, that when the witness was sworn, the mayor and aldermen were not upon the bench, but court had not adjourned; that two of the aldermen were in the court house, when the clerk swore the witness, and the mayor was standing at the door. Upon which testimony the court charged the jury, that the court was composed of the mayor, two aldermen, and the constable; and if the witness was sworn when any one of its members was present, it would be a swearing of the witness in the presence of the court. The jury found, that “the witness in said second plea specified was sworn before the court.”
    The defendant moved for a new trial of this issue, which being refused, he pleaded not guilty, and being put upon his trial was convicted. The evidence submitted to the jury upon the general issue is not set out in the record. The defendant moved for a new trial, which was refused, whereupon he tendered his bill of exceptions, in which the case is stated as above, and exception is taken to the several opinions of the court, t. In refusing to quash the presentment. 2. In sustaining the demurrer to the plea. 3. In charging the jury upon the trial of the issue on the second plea. 4. In overruling the several motions for a new trial.
    No counsel appearing for the plaintiff in error,
    the Attorney General submitted, on behalf the state, the following brief—
    1. It is always discretionary with the court whether they will quash an indictment or presentment; and it cannot be assigned for error, that they refused to do it. 1. Chitty’s C. L. 299 to 304.
    2. The panel was not void because one incompetent juror was placed on it. The court could remedy the error by substituting another. As to the 1st proposition, 1 Chitty’s C. L. 309; as to the 2d Acts of 1837, c 53, § 4; c 69, § 2; 1779, c 6, § 4.
    December 15.
    3. It is not necessary to keep any record of the swearing of a witness sent to the grand jury. It is sufficient that they be sworn. Perhaps it is not necessary that they be sworn in open court. See United States vs. Coolidge, 2 Gallison, 384; 5 Yerger, 364. It is certainly unnecessary to swear them before the court. If the court be open it is enough. State vs. Cain & Price, 1 Hawk. 352. N. C. Act pf 1797, c 2, § 3; Ry. & M. C. C. R. 401. See the mode of swearing witnesses sent before the grand jury in the King’s Bench, 1 Gude’s Prac. 84.
   Green, J.

delivered the opinion of the court.

There is no error in the judgment in this case. The motion to quash the presentment was properly overruled. It does not appear in the record, upon what grounds this motion was made, but we perceive no defect in the presentment wherefore it should be quashed.

The plea that Decker, a grand juror, was not a qualified juror, and was discharged, and another appointed and sworn in his place, is not a good defence, and the demurrer to it was properly sustained. The panel being incomplete, by reason of the want of qualification of one of the number, the court had a right to order another to be summoned. When the defendant was presented, Decker was not one of the jurors.

The second plea, thqt the witness on whose evidence the presentment was made, was not sworn before the court, is replied to and the jury found a verdict, that he was sworn before the court. There was error in the court in saying that the clerk and constable constitute members of the court, and that if the witness was sworn before either, he was sworn before the court. But we think that if he was sworn while the court was open, although the mayor and aldermen were not on the bench, or immediately before the witness, the swearing was sufficient.

As the evidence is clear, that the court was open when the witness was sworn, the erroneous statement of the court, above referred to, was not material. Indeed, the issue upon the plea, that the witness was not sworn before the court, was immaterial, and may be disregarded. Upon the merits of the case no question is made.

Let the judgment be affirmed.  