delivered the opinion of the court:
A presentment by the grand jury was returned into the circuit court at Troy, at its November term, 1874, to which the defendant pleaded in abatement that J. A. Par-due, one of the jurors, was the uncle of the defendant, and therefore, incompetent to join in making said presentment-against defendant.
To this plea the state replied that said Pardue was not
On motion of the defendant the replication to plea in abatement was stricken out, and presentment quashed, and the attorney-general has appealed to this court.
The record shows that Pardue, with the other jurors, signed the presentment, and it has been held by this court that where a presentment is made by the grand jury where one of the number is disqualified to act, it is void [State v. Duncan], 7 Yerg., 271; [State v. Baker], 4 Hum., 12.
The rule seems to be different in cases of indictment where twelve competent jurors remain and pass upon the case, 4 Hum., 12. The same thing has been held in Mississippi and other states. Whan Ain. Or. L., 226.
In this case the presentment is a part of the record in the cause, and it and the minutes of the court show that Pardue did concur in the presentment, and in its return into court.
The judgment of the circuit court will be affirmed.