State v. Borroum

Yerger, J.:

This case was before us in January, 1852. It is now presented upon a demurrer by the state to the rejoinder of defendants.

By the rejoinder the defendants seek to avoid the recognizance, because, as they aver, the grand jury which found the indictment against Bruce, was not duly and legally organized.

Without deciding whether the defendants are precluded by the state of the pleadings from making this defense, it is sufficient to remark, that in our opinion the defendants could not at any time have avoided the recognizance for any defects in the organization and qualification of the grand jury.

The defendant in the indictment could only have questioned the sufficiency of the grand jury by a plea in abatement, and that plea could only have been interposed by him on his appearance in court to answer the charge against him. If upon his appearance he had entered the plea of “ not guilty,” he could not afterwards have made objections to the grand jury. The right to object to its legal sufficiency is the personal right of the defendant in the indictment, a right, of which he could only avail himself by appearing to answer the charge and insisting upon it by plea. In our opinion the parties to a recognizance, who are intended to compel the appearance of the accused, have no right after his failure to appear, to interpose objections to the proceedings, which objections, if true, would not render the proceedings absolutely void, but only erroneous and voidable • upon the appearance and plea of the accused.

The demurrer to the rejoinder was well taken, and judgment should have been entered on it for the state, but for the rule, that a demurrer reaches back to the first error in the pleadings.

There is a manifest variance between, the recognizance, the judgment nisi, and the scire facias. The accused, Wesley Bruce, was recognized to appear and answer a charge by indictment of “ unlawfully buying and receiving from a certain negro slave, named Ellick, who was the property of David M. Brown, seventy-five pounds of cotton without,” etc. The scire facias recites, that he was called and made default to answer “a charge of unlawfully buying from a negro slave seventy-five pounds of cotton.”

. The recognizance only bound the parties for the appearance of Bruce to answer a charge of buying and receiving from a particular specific slave, whereas the scire facias recites a recognizance for his appearance to answer a charge of buying from a slave generally and without identity. Eor this variance the demurrer must be sustained to the scire facias, and the judgment below affirmed.