51 So. 460 | Miss. | 1910
delivered the opinion of the court.
Appellant was convicted of embezzlement in the court below and appeals to this court.
A motion to quash the indictment was filed in the court below, and overruled; the ground of the motion being that the grand jury which found the indictment was not sworn. The minutes of the >court at which the indictment was found contain no statement that the grand jury was sworn. In Cody v. State, 3 How. (Miss.) 27; Abram v. State, 25 Miss. 589; and Foster v. State, 31 Miss. 421, it was held that the swearing of the grand jury must affirmatively appear from the-record, and in default thereof an indictment found by such grand jury was void. The holding of these decisions has long since become the settled law of this state, the only change therein made by the legislature being that such objection must be made before verdict (Hays v. State, ante 153, 50 South. 557); and this appellant did by filing his motion to quash. In Smith v. State, 28 Miss. 728, it was also held that the swearing of the grand jury must be ascertained by an inspection of the record.
It is contended by the state that this defect in the record was waived: First, because a plea of not guilty was entered, and not withdrawn before the motion to quash was made; second, because this motion was made for the first time in the circuit court of Lincoln county, to which a change of venue had been granted from Franklin county. Neither of these
The judgment of the court below is reversed, the indictment quashed, and the defendant held to await the action of a legally •organized grand jury. Reversed.
