State v. Welch

Practice, Criminal — Grand Jury. — A challenge to a grand juror or to the array must he made before the jurors are sworn, and can only be made for the causes stated in the statute. (R. C. 1167, § 2.) Practice, Criminal — Demurrer.—That a plea in abatement is not sworn to is no cause of demurrrer.

Appeal from, Pemiscot Circuit Court. I. That the record nor the caption, neither the one nor the other, shows where the pretended term of the pretended Circuit Court was begun and held, if any was so begun and held in October, 1857. II. That the record shows that the grand jurors by whom the pretended indictment was found and returned a “true bill,” had been summoned and selected from a certain class, to wit, householders, and not from the general class of the free white male citizens of the State of Missouri, being residents of the county of Pemiscot, and otherwise qualified according to law. (State v. Rawls, 7 Sm. & M.) III. That the oath required to be administered to the sheriff and all his deputies attending the court, as required by the statutes of Missouri, does not appear by the record to have been administered. It is a well settled principle in all the decisions in all the States that it is the office of the caption of the record to show when, where and by what authority the court was held and claimed to act. (State v. Rawls, 7 Sm. & M., and the authorities there referred to.) The court below properly sustained the demurrer on the part of the State to the plea in abatement of appellant, because, I. The plea in abatement should have been verified by affidavit. (R. C. 1855, p. 1182, § 6.) II. The illegal manner of summoning a grand jury is no ground for a plea in abatement to an indictment. (State v. Bleckley, 18 Mo. 428; R. C. 1855, p. 910, § 9, & p. 1167, § 2 & 3.)