
    Dixon v. The State of Iowa.
    Whore a party charged with a criminal offence, is under arrest, or has given bail, he is required to make his challenge to the array of the grand jury, before the indictment is found.
    Where a defendant in a criminal case, filed two pleas in abatement of the indictment, which alleged that the grand jury which found the bill, was not appointed, drawn, or summoned as required by law, and setting out the alleged defects, which pleas, on motion, were struck from the files of the court; and where it appeared from the record, that the defendant, prior to the finding of the indictment, was under arrest, and had given bail for his appearance at court at the term at which the indictment was found; Held, That the pleas were properly stricken from the files.
    A person indicted for an assault, with intent to commit murder, may be legally •convicted of an assault and battery.
    
      Error to the Lucas District Court. '
    
    At the September term, A.D. 1854, of the District Court in Monroe county, the plaintiff in error was indicted for an assault with intent to murder. On his petition, the venue was changed to Lucas county, where he was convicted of an assault, and battery. The plaintiff assigns for erior, certain rulings of the court below, wbicb will be found sufficiently stated in tbe opinion of tbe court.
    
      J. M Neal, for tbe plaintiff in error.
    
      Samuel A. Rice, (Attorney-General), for tbe state.
   Woodward, J.-

— Tbe first assignment of error is, tbat tbe court sustained tbe motion of tbe state, to strike from tbe files tbe defendant’s second plea in abatement. This was a plea to tbe indictment, and was based upon tbe alleged ground, tbat tbe grand jury wbicb found tbe bill, was not appointed, drawn, or summoned, as is required by law, and was not a legal grand jury, in consequence of certain omissions and neglect of tbe township and county officers. This objection is a challenge to tbe array, recognized in chapter 166 of tbe Code, §§ 2882, 2890. Tbe defendant was under arrest, and bad given bail for bis appearance at that term; so we infer at least, with as much confidence as is possible in tbe imperfect and confused state of tbe papers. In other words, in tbe language of tbe Code, (§ 2882,) be was held to answer for a public offence. When tbe defendant is under arrest, or has given bail, be is to make bis challenge to tbe array, before indictment found. See chapter 166. It is tbe intent of tbe statute, tbat be shall do this at as early a day as is practicable. And when be is already under arrest and present, it is in his power to do it before an indictment is found. Norris’ House v. The State, 3 G. Greene, 513.

This reason covers also tbe second error assigned, that tbe court disregarded bis first plea in abatement, wbicb was of tbe same nature and substance. Tbe third assignment of error is, tbat tbe court received tbe verdict and rendered judgment, without tbe defendant being arraigned and tried, and without a jury being impanneled, charged, and sworn. The papers show that the defendant was arraigned; that he filed a written plea of “not guilty and that a jury brought in a verdict. We are not aware that it is essential to the validity of a verdict, that the record should give the names of the jurors. But however this maybe, when what professes to be a record, comes up in so irregular and confused a condition as this is, and when nothing is shown to the contrary, this court will presume these things to have been done regularly; and this requires no violent presumption, when the record shows a verdict to have been rendered. The fourth assignment of error is, that being indicted for an assault with intent to murder, the jury could not legally render a verdict of guilty of an assault and battery. In the case of Gordon v. The State, Ante, 410, the defendant was indicted for murder, and was found guilty of manslaughter. This was held to be regular. The present cause comes within the same principle. The same was ruled in The State v. Benham, 1 Iowa, 542. The judgment of the District Court is affirmed. 
      
       Weight, C. X, having been of counsel, took no part in the decision of this cause.
     