
    STATE v. H. A. PARAMORE and J. A. RICKS.
    (Filed 26 February, 1908).
    1. Jurors — Improperly Drawn — Grand Jury — Improperly Constituted.
    While, generally, the provisions of the statute for drawing and summoning jurors are directory, the grand jury is illegally constituted when one whose name was not drawn from the boxes was summoned by mistake, and served by mistake.
    2. Jurors — Grand Jury — Improperly Cpnstituted — Motion to Quash— Plea in Abatement.
    A motion to quash a bill of indictment upon the ground that the grand jury was illegally constituted is substantially a plea in abatement, and in such instances is proper and regular.
    3. Jury — Grand Jury — Improperly Constituted — Motion to Quash— Apt Time.
    A motion to quash an indictment, made upon arraignment and before pleading, for that the grand jury was improperly constituted, is in apt time. Revisal, 1970.
    
      INDictmeNX for embezzlement, heard by Lyon, J., at April Term, 1901, of tbe Superior Oourt of Pitt Oounty.
    Defendants were indicted for embezzlement, and moved to quash tbe indictment, upon tbe ground that tbe grand jury bad been improperly constituted. With reference to this matter, tbe Judge found tbe following facts:
    1. William McLawhorn was summoned as a juror for April Term, 1907, and bis name was returned to tbe court by tbe Sheriff as a juror, with thirty-five other names, making thirty-six.in all on tbe jury list. When tbe court convened, William McLawhorn was one of tbe first eighteen persons drawn and selected as grand jurors, and he served on tbe grand jury fox tbe term at which tbe bill of indictment was found against tbe defendants..
    2. Tbe name of William McLawhorn was not in the jury box when the commissioners of tbe county drew the jurors to serve at tbe April Term, and bis name was not, therefore, drawn from the jury box, but tbe name of Woodie McLawhorn was drawn by tbe commissioners as a juror to serve at tbe said term, and tbe Sheriff, confusing the two names, placed tbe name of William McLawhorn, instead of that of Woodie McLawhorn, on tbe jury list, and summoned William McLawhorn in tbe place of Woodie McLawhorn to serve as a juror, and tbe said William McLawhorn appeared in answer to tbe summons and served as a juror. Woodie McLawhorn, whose name was drawn from tbe jury box by the commissioners, was not summoned as a juror and did not serve.
    Upon, tbe facts so found by tbe court, tbe indictment was quashed. Tbe State excepted to tbe ruling of the- court, and appealed.
    
      Assistant Attorney-General for tbe State.
    
      Moore & Long for defendants.
   Walkee, J\,

after stating the facts: The defendants, upon their arraignment, and before pleading, moved to quash the indictment and supported their motion by affidavits. This was substantially a plea in abatement, which is the proper and regular method of attacking the bill upon the ground stated in the record. State v. Haywood, 73 N. C., 437. Provision is made by the law for drawing and summoning jurors. Re-visal, secs. 1964, 1965, 1966 and 1976. The requirements of the law, with very rare exceptions, have been held by this Court to be directory. State v. Daniels, 134 N. C., 646; State v. Haywood, supra. The statute provides that the board of commissioners of each county shall draw the jurors who are to serve, at a term of the Superior Court from box No. 1, which contains the scrolls containing the names of those who are qualified to serve as jurors, and who are, therefore, subject to jury duty. When the jurors are thus drawn, the scrolls are deposited in box No. 2. The clerk of the board is required to prepare a list of the jurors so drawn and to deliver the same to the Sheriff of the county, who summons the jurors whose names are on the list to attend at such court. In this case it appears that the Sheriff substituted the name of William McLawhorn for that of Woodie McLawhorn. The name of the former was not on any scroll in box No. 1, and he was not drawn as a juror by the commissioners. The Sheriff, under the circumstances of this case, had no authority of law for substituting the one person for the other as a juror, and his act in doing so was, of course, utterly void. _ William McLawhorn was not a duly qualified juror for the term of the court at which the bill of indictment was returned by the grand jury, and, as he was selected and served as -a grand juror for that term, and, at least presumably, took part in finding the bill, the grand jury was not properly constituted.

This is an exception to the general and almost universal rule that the provisions of the law for drawing and summoning jurors are directory. Here, there was what has been called a positive disqualification of one of tbe jurors; indeed, William McLawborn was not and could not be a grand juror, and tbe grand jury was, for that reason, illegally impanelled to serve as tbe accusing body at that court. In State v. Seaborn, 15 N. C., at p. 309, Chief Justice Ruffin refers to tbe subject thus: “It is insisted that tbe grand jury must be composed only of those summoned, and that if one be impanelled on it by a different name from all those summoned, be must be taken to be a different person, and tbe bill is not well found. This objection, if founded in fact and taken in due season, would, in tbe Superior Court, bave been unanswerable, and bad it then been overruled it would bave been error.” It is true tbat.be was there speaking for himself, but a dictum emanating from him is of itself entitled to tbe greatest consideration and is at least very persuasive authority, but it has more recently been approved and adopted as a correct statement of tbe law. State v. Haywood, supra; State v. Daniels, supra; State v. Griffice, 74 N. C., 316; State v. Sharp, 110 N. C., 604; State v. Watson, 86 N. C., 624; State v. Baldwin, 80 N. C., 390; State v. Smith, ib., 410. In this case tbe motion of tbe defendants was made in apt time. Revisal, sec. 1970, and cases supra.

For tbe reason we bave given, tbe bill was not well found and was properly quashed by tbe court.

No Error.  