Cochran v. StateCochran v. State
- Reporters:
- Before:
- Moclellan
The defendant below moved to quash the indictment preferred against him, and also pleaded in abatement to it, on the grounds, “ that one A. C. Milford actеd as a grand juror at the time the said indictment was found, and participated in the proceedings of said grand jury in finding said indictment, and that said A. C. Milford was not selected or drawn as a grand juror by the officers whose duty it was to select grand jurors for said term of the court, nor was. A. C. Milford placed or drawn on said grаnd jury to supply a deficiency in the number of said grand jury, or in any other manner whatever.” It is entirely free from doubt, on principle and authority, that these fаcts, without *42more, vitiated the indictment, and entitled the defendant to have it quashed in response to his plea — if not on the motion — upon proof оf their existence. — Barney v. State, 12 S. & M. 68; State v. Parks, 21 La. An. 251; State v. Tilly, 8 Bax. (Tenn.) 381; U. S. v. Hammond, 2 Woods, 197; People v. Wintemute, 1 Dak. Ter. 63; Thomp. & Mer. on Juries, § 567; 1 Bish. Cr. Pr. § 856a; State v. Clough, 49 Me. 573; Sylvester v. State, 72 Ala. 201; Nixon v. State, 68 Ala. 535.
The solicitor filed a replication to the motion and pleа, respectively, in the following terms: “Comes the State, . . . . and avers in reply, аnd in addition to the facts set out in the motion [or plea ] filed in this cause, tо-wit, that the proper officers charged with the drawing of the said grand jury did draw frоm the jury-box a slip of paper on which was written ‘ A. C. Nilford, farmer, Beat 13,’ and ‘A. C. Nilford, farmer, Beat 13’, was on the said grand jury venire; that the sheriff of the county summoned onе A. C. Milford, farmer, Beat 13, to serve on said grand jury; and that said A. C. Milford appeаred, was sworn and impanelled, and served on said grand jury — that there is no such man or person in beat 13, or the said county, as A. C. Nilford; that there is no such male person either in said beat or the said county, of the surname of Nilford, but that A. C. Milford, a farmer, does, and has for several years, resided in beat 13 in said county.” This replication as filed, both to the motion and the plea, was dеmurred to by the defendant; the demurrers were overruled, and exceptiоns reserved both on the record, and by bill of exceptions.
This action оf the trial court was, in our opinion, erroneous. It may be concedеd, indeed we do not doubt it as a proposition of law, that it was competent for the State to aver and prove, in replication to thе defendant’s plea in abatement, that A. C. Milford was the man who had been sеlected by the jury commissioners of Lee county, as a person fit and competent to discharge the duties of a grand and petit juror, and through inаdvertence, or clerical misprision, his name had not been pi’operly transcribed on the slip of paper which they deposited in the jury-bоx, but that instead the name A. C. Nilford had been written on the ballot, intended to reрresent and stand for A. C. Milford. Nor do we doubt that it was competent to prоve these facts by the testimony of the commissioners, or other persоn cognizant of them; nor that, when proved, they would have *43constituted a full answer to the plea. — State v. McNamara, 3 Nev. 70.
But these are not the facts laid in the replications. It does not appear from them, but that at the time the jury-box was prepared, and the names of fit persons for jurors рut in it — a time which must have been several months before the drawing of this grand jury (Acts 1886 — 7, p. 151) — there was such a man as A. O. Nilford residing in beat 13, Lee county, and he, and not Milford, was selected by the commissioners. But, granting that there was no such man as Nilford at any time in the beat or county, it does not follow that the commissioners intended to select, or did in fact consider and pass on the qualificаtions of Milford. It may be, for aught alleged to the contrary, that A. C. Wilford, or A. C. Nilford, was a farmer living in that beat, and that he, and not Milford, was the man selected fоr jury service. The replications, in other words, no where aver that Milford was the man selected, but they merely state facts which raise up a prоbability that he, and not Nilford, was the juror passed on and selected. This is not that certainty to a common intent required in all pleadings. The replications are insufficient. The demurrers should have been sustained.
The judgment is reversed, and the cause remanded.