Jetton v. State ( 1838 )

Green, J.

delivered the opinion of the court.

There is no error in the judgment in this case. The motion to quash the presentment was properly overruled. It does not appear in the record, upon what grounds this motion was made, but we perceive no defect in the presentment wherefore it should be quashed.

The plea that Decker, a grand juror, was not a qualified juror, and was discharged, and another appointed and sworn in his place, is not a good defence, and the demurrer to it was properly sustained. The panel being incomplete, by reason of the want of qualification of one of the number, the court had a right to order another to be summoned. When the defendant was presented, Decker was not one of the jurors.

The second plea, thqt the witness on whose evidence the presentment was made, was not sworn before the court, is replied to and the jury found a verdict, that he was sworn before the court. There was error in the court in saying that the clerk and constable constitute members of the court, and that if the witness was sworn before either, he was sworn before the court. But we think that if he was sworn while the court was open, although the mayor and aldermen were not on the bench, or immediately before the witness, the swearing was sufficient.

As the evidence is clear, that the court was open when the witness was sworn, the erroneous statement of the court, above referred to, was not material. Indeed, the issue upon the plea, that the witness was not sworn before the court, was immaterial, and may be disregarded. Upon the merits of the case no question is made.

Let the judgment be affirmed.