4 Blackf. 73 | Ind. | 1835
Vattier was indicted and tried in the Dear-born Circuit Court on a charge of an assault and battery with intent to murder. He was found guilty, and judgment was rendered against him. He has brought the case here, and alleges that the judgment should be reversed, on the ground of error having been committed in overruling a demurrer which he filed to the replication to his plea in abatement. The record shows, that on being arraigned and required to plead to the indictment, he pleaded in abatement to the array of the grand jury, averring that the persons by whom the indictment was
Should the demurrer have been overruled? is the only question for our consideration.
It is contended by the state, that though at the term at which the indictment was found, the plaintiff in error, being recognised to answer the charge embraced in the indictment, could have pleaded in abatement to the array of the grand jury, yet having omitted to avail himself of this right at that term, he is thereby concluded and his plea consequently bad. This position, it is believed, cannot be maintained.
By the common law, with a view to the protection of innocence from unfounded prosecutions, instituted either by power or malevolence, the organization of a grand jury was an object of primary importance; and we discover from English legislation', that the authority of parliament vías frequently interposed, in re-asserting the original purity of the institution, prescribing the duties of the sheriff, and the qualifications of individual jurors. Hawkins, in 2 Pleas of the Crown, 215, says, “ That at common law, every indictment must be found by twelve men at the least, every one of which, ought to be of the same county, and returned by the sheriff or other proper officer, without the nomination of any other person whatsoever, and ought to be,” dec. He also says, “That any one under a prosecution for any crime whatsoever, may by the common law, before he is indicted, challenge any of the persons returned on the grand jury, as being outlawed, &c., or returned at the instance of a prosecutor, or not returned by the proper officer,” &6.
Thus stood the common law, but neglect and disregard of its requirements gave occasion for the stat. 11, H. 4, c. 9, which prescribes by whom indictments shall be found, and declares that if an indictment be found in aDy point otherwise, it shall
Whether the plea before us would have been good at common law, is not thought material for inquiry, as its character must be settled by the statute. The statute prescribes the manner in which grand jurors shall be selected, and it must he conceded to be a mode which, if pursued, is as effectual as any that has been devised, to protect the citizen from unfounded prosecution, and to deprive the sheriff, if inclined, of the power and opportunity of acting corruptly. The board doing county business and the clerk of the Circuit Court, make the selection by lottery, and the sheriff summons those whose names are thus furnished. If this mode was not adopted, as alleged by the plea of Vattier, in selecting the jury by whom the indictment against him was found, and he availed himself of the exception on his arraignment, we cannot perceive a
The question then arises, should Our statute receive the construction that was given to that of Henry 4, c. 9? This question is answered by recurring to the reasons which induced the adoption of the English statute; They are given in its preamble, and show that the common law was disregarded in taking inquests by persons named to the justices, without due return by the sheriff, of whom some were outlawed and some fled to sanctuary, and by whom innocent persons through conspiracy, &c., were indicted. This act was declaratory of the common law. In adverting to our statute, we have suggested the benefits that must result from a strict compliance with its provisions; and although with us, the reasons set out in the preamble to the English statute may not have existed, yet it is evident that the end proposed by each was the same,— the purity of the institution, and the protection of the citizen from.unfounded prosecutions; consequently, each statute should receive the same construction. Adopting, therefore, the construction of the English statute as settled in the case of Withipole, we are brought to the conclusion, that Vattier's demurrer to the replication to his plea should have been sustained. This construction has in part, at least so far as the point involved required it, been given by this Court. Jones v. The State, 3 Blackf. 37.
The judgment is reversed and the verdict set aside. Cause remanded, &c.
The arraignment of a prisoner consists of three pans:—1st, calling him to the bar, and by holding up his hand, or otherwise making it appear he is the party indicted;—2ndly, reading the indictment to him distinctly in English, he may fully understand the charge;—3rdly, demanding of him whether he be guilty or not guilty, and entering his plea; and then demanding of him how he will be tried; the common answer to which is by God and the country. 2 Hale’s Hist. 219.—1 Toml. L. D. 95.