| Miss. | Mar 15, 1913
delivered the opinion of the Court.
Louis Coulter was indicted for embezzling the funds of the Bank of Carson. ■ He was cashier of that bank. H. R. Holloway, foreman of the grand jury returning the indictment, was the president of the bank. While the grand jury was hearing the testimony, upon the consideration of the case, Mr. Holloway, foreman, was excused from deliberating and taking a part in the finding of the indictment. This is assigned as an. error.
It appears that the grand jury was properly impaneled, which includes the appointment of a foreman, the administration of the oath to him, and the administration of the same oath to all the other jurors. The grand jury consisted of twenty members, and it will be seen that nineteen remained on the panel after the foreman was excused. Section 1417 of the Code of 1906 states that it is only necessary for twelve of the grand jurors fco concur in the finding of an indictment. All the formalities in the returning of the indictment required by section 1418 of the Code of 1906, including the proper indorsement by the foreman, appear to have been complied with in this case. We do not see anything improper in Mr. Holloway’s being excused from taking part in the consideration of the case. On the other hand, as he was president of the bank, the funds of which it was charged the cashier had embezzled, it seems to us that his action is to be commended, and not to be urged as an objection to the indictment. In the case of Friar v. State, 3 How. 422, it was decided that where the indictment is indorsed “A true bill,” and returned by the authority of the whole grand jury, it is sufficient, without the special appointment of a foreman. In Peter v. State, 3 How. 433, the court decided that a special appointment of a foreman is not necessary, when the record shows that the indictment was found and returned by the whole panel. In delivering the opinion in the case, Trotter J., said: “It is objected that there was no foreman of the grand jury.
We do not find any law that required the actual presence of the foreman of the grand jury in the room at all times during the deliberations of the jury. We can see that cases can arise where it would be highly improper for the foreman to act with the grand jury in hearing testimony and deciding as to whether an indictment should bé found. In other instancés he might be unavoidably absent. It. should not be held, however, that when a sufficient number of the grand jury have decided to return an indictment the absence of the foreman will render the indictment invalid. His duties are those of a presiding officer, and when he is absent such duties may be performed by another.
Another assignment of error is that during the deliberations of the grand jury in the case the county prosecuting attorney was present in the grand jury room. By section 5 of chapter 253 in the Laws of 1912, a county prosecuting attorney is required to assist the district attorney in all criminal cases in the circuit court, and it is stated, in the section that “it shall be the duty of the county prosecuting attorney to represent the state in all matters coming before the grand jury of his county.” It will be noted that he is not only commanded to assist the district attorney in criminal cases in the circuit court, but that it is made his duty to represent the state before the grand jury. Therefore, in this case, he .was properly before the jury. It is not shown that he did anything to improperly influence the jury. He was there only to advise them as to the law. It is certainly the duty of the district attorney to render assistance to the grand jury whenever his services as an attorney representing the state will be helpful. As prosecuting attorney, he should be ready and willing at all times to aid the grand jury in their deliberations, and should go before them for that
It is also assigned as error in this case that the present indictment was found by the grand jury without having any evidence upon which it could be legally found. We-note, however, that in testifying the prosecuting attorney states that witnesses were examined and testimony taken.
The objection to their indictment in this case was by what was called in the record a plea in abatement, which is duly sworn to, and to which a demurrer was filed. We note, however, that in the paper called a plea the defendant moved the court to quash, and that the record appears to treat the porceedings as though on a motion te quash the indictment. As the objections to the indictment in this case are dehors the face thereof, under section 1427 of the Code of 1906, it was correct to present the same by a motion to quash.
The trial court erred in quashing the indictment.
Reversed and remcmded-