Sandford v. State ( 1850 )

Mr. Chief Justice Johnson

delivered the opinion of the court.

It is not sufficient, in a criminal prosecution, to swear the jury ‘'well and truly to try the issue joined, and a true verdict to render according to the evidence.” The jurors, in such cases, are the judges as well of the law as the facts, and consequently should be sworn to try the case according to both, or at least it shall appear that they were regularly or duly sworn. See Patterson vs. The State, 2 Eng. 60, and Bell vs. The State, 5 Eng.)

The court below committed no error in receiving the transcript of the original conviction as evidence of that fact, and also of the particular offence of which he had been convicted. It appears, from the entry in the record, that the indictment upon which he was originally tried was for larceny, which entry was sufficient evidence of that fact without the actual production of the indictment, or a copy thereof. Although there is no error in this particular, yet as the swearing of the jury was clearly defective, the judgment of the circuit court must be reversed.

The judgment of the court below, in overruling the motion for a new trial is therefore reversed, and the cause remanded.