United States v. Cropper

Per Curiam,

Wilson, Justice.

This was an indictment for larceny, found at the May term 1841, of the District Court for Johnson, county, against the defendant.

To the indictment the defendant pleaded that the persons by whom the indictment was found, as a Grand Jury, were not a legal Grand Jury, for the reasons that the County: Commissioners of said county did notj within three days after the selection of said persons as a Grand •Jury, deliver to the Clerk of the said District Court an attested copy of the names of the persons selected as such Grand Jury.

To this plea the district prosecutor replied, that S. B; Gardner, the Clerk.of the District Court of said county, is now, and was, at the time of the selection of the Grand Jury, the Clerk of the Board of County Commissioners of said county, and as such, made a record of the list %of said Grand Jurors upon the books of said Commissioners, as they were originally drawn and selected, which books were left in the possession of the Clerk of the District Court, at his office, within three days after the selection of said persons, as a Grand Jury, &c.

To this replication, the defendant demurred, which demurrer was sustained.

The errors assigned, are:

1. The sustaining the demurrer to the replication, put in to the in abatement.

2. That the court did not look back to the first error or defect in the proceedings which may be found in the plea in’ abatement, which does not, in legal contemplation present: matter sufficient to abate the indictment.

There are two separate laws, passed on the same day, prescribing the manner of selecting Grand Jurors. Both provide that the County Commissioners of each county,.shall select twenty-three persons, to serve as Grand Jurors, thirty days previous to the sitting of the District Court. They differ but in two particulars, to wit: one requires the County Commissioners to make out and deliver to the Clerk of the District Court, the list of Grand Jurors, thirty days previous to the term; the other requires the Commissioners to make out the list thirty days previous to the term, and to deliver an attested copy within three days thereafter to the Clerk of the District Court.

Although the first statute referred to, does not require the list to be attested, yet the other making such requirement, being of the same date must have effect.

The copy of the names of the Grand Jurors, delivered by the County Commissioners to the Clerk of the District Court, should be attested, that is to say, it should bear the usual test of the Board of Commissioners, to wit: their seal..

The only question which remains is, whether the allegations in the plea, to wit: that S. B. Gardner, the clerk of the District Court of Johnson county, was at the time of selecting the grand jury, also the clerk of the board of commissioners, and, as such last mentioned clerk, made a record of the list of grand jurors aforesaid upon the books of the board of commissioners aforesaid, as they were originally drawn and selected, which books were left in the possession of the clerk of the District Court, within three days after the selection of such persons as a grand jury, would, if true, be a sufficient compliance with the statute. We think not. The statute is positive in its terms, and a defendant in an indictment for a criminal offence has a right to a strict compliance with the statute, and a strict construction of the law. The statute required an attested copy of the list of grand jurors to be made out and delivered to the clerk of the District Court, which was not done, and as the defendant made the objection at the proper time, and in the proper manner, we think the court below was correct iu sustaining the objection.

Judgment affirmed.