
    STATE vs. JAMES UNDERWOOD.
    On the trial of an indictment for Murder, the prisoner offered a witness, whtf was so much intoxicated, as to be incapable of understanding the obligation of an oath. The Court refused to permit him to be sworn, but told the prisouer he might re-call him when he was sober. The prisoner examined other witnesses, but did not re-call this one. Held, that this was no cause in law for a new trial. Granting or refusing a new trial on this ground* was a matter of discretion for the Judge.
    A'new trial was moved for on the ground that the Grand Jury had been drawn by a boy of thirteen years of age, and that such illegal drawing might have affected the composition of the petit jury. Held, that this ob** jection, if a valid one at any time, came too late. It should have been made before the petit jury was sworn in the form of a challenge to the array*
    Appeal from the Superior Court of Law of Iredell County, at the Fall Term, 1845, his Honor Judge Pearson presiding*.
    The prisoner was indicted in Willces County, as principal, with one Duncan as accessary before the fact, for the murder of one Peden. Both of the accused joined in a motion to remove the trial, and it was removed to Iredell.
    In forming* the Grand Jury at Iredell, at the term at which the trial took place, the Jurors were drawn by a boy of thirteen years of age.
    The Court allowed the prisoner, Underwood, a separate trial, and he offered as a witness, a person who was so drunk that he was incapable of understanding the obligation of an oath, or giving* testimony. For that reason, the Court refused to allow him to be then examined, and informed the prisoner, that he might recall the witness, when he should become sober ; the witness was in the mean while committed to jail. The prisoner thereupon examined several other witnesses, and closed his case without recalling the above mentioned witness, or requesting so to do.
    The prisoner was found guilty, and then moved for a new trial, upon two grounds. One, that he was deprived
    
      of the benefit of the witness, who was intoxicated : the other, that if the grand jury had been drawn by a boy of the proper age, it might have consisted of different persons, and, consequently, the petit jury by which the prisoner would have been tried, would have been different from that by which he was tried. The Court refused the motion, and also a motion in arrest of judgment, and passed sentence of death ; from which, the prisoner appealed.
    
      Attorney General and Boyden, for the State.
    
      Guión and Miller, for the defendant.
   Ruffin, C. J.

The Court is of opinion, that no error appears in the record. As far as the first reason was addressed to the discretion of the Court, it was exclusively for the Judge who presided at the trial. Had he been made satisfied, that the prisoner was surprised by the state of his witness, or that his evidence was material, he would doubtless have suspended the trial until the witness should be in a proper condition to take an oath, or would have granted a new trial. This Court cannot grant a new trial, properly speaking, as for surprise, or because the'verdict is contrary to the evidence., but can only grant a venire de novo for error in law upon the first trial. There is certainly no error in the Court, refusing to administer an-oath to a person, tendered as a witness, who is so drunk as not to understand its obligation, and to postpone swearing him until he may become sober enough for that purpose.

Upon the second point, it may be a question, whether the provisions of the statute, as to the mode of forming the grand jury, be not merely directory. But we do not think it necessary to consider that question on this occasion, because, allowing them not to be directory merely, and that the objection might have been sufficient, if taken in due time, the Court holds, that it came too late in this case. The matter does not appear in the record, in a legal sense, but was properly the subject of a challenge to the petit jury, as being illegally constituted, by reason of a collateral thing. The prisoner’s objection goes to the formation of the petit jury, and should, therefore, have been talien as a challenge to the array. He did not choose to take it in that form, but elected to waive his privilege, and to be tried by the persons returned in the array; and he cannot, afterwards, take exception to it upon such collateral ground.

We do not perceive any reason for arresting the judgment ; and therefore it must be certified, that there is no error in the judgment, in order that it may be duly proceeded on.

Per Curiam. Ordered accordingly.  