| Miss. | Oct 15, 1857
delivered the opinion of the court.
This was an indictment in the Circuit Court of Tippah county for selling spirituous liquors without license and in violation of law. The defendant pleaded in abatement, that one of the members of the grand jury which found the indictment was not summoned at least five days before the first day of the term, at which the indictment was found; and that said grand juror was not summoned and empanelled, to supply the place of any one of the grand jurors, who had been summoned and had failed to attend, &c.
To this plea a general demurrer was filed in behalf of the State, which was overruled, whereupon the court allowed the State to file a replication traversing the plea; and upon the trial the verdict was for the State.
It is now insisted, that the judgment should be reversed on two grounds : 1st, because, upon the demurrer to the plea overruled, the defendant was entitled to judgment upon the plea ; and, 2d, because upon the trial, the court excluded from the jury the testimony offered,
Upon the first point, it appears that after the judgment upon the demurrer, no motion was made for a judgment of discharge of the defendant, nor was any objection taken to the filing of the replication ; but the defendant took issue upon it, and went to trial. If this would not be a waiver of his right, upon the demurrer, it would be a good reason, why he should not have judgment here, upon the demurrer, if it was manifestly well taken, and should have been sustained.
We think it clear that the plea was insufficient, and that the demurrer should have been sustained. The provision of the statute requiring that grand jurors should “ be summoned at least five days before the first day of the court,” to which they may be summoned, is manifestly merely directory to the sheriff, and for the convenience of jurors, that they may have sufficient notice of the service required of them. And though it might be true, that a juror could not be compelled to attend unless so summoned, yet if he thinks proper to attend and serve without such notice, it constitutes no objection to the regular organization of the grand jury. The time of summoning the jurors, except so far as their own convenience is concerned, is quite an immaterial thing, which could in no wise affect their official acts.
This view of the case disposes of the second objection, and renders the evidence offered by the defendant immaterial.
Let the judgment be affirmed.