THE STATE OF ALABAMA VS WILLIAMS, 5 Port. 130

HOPKINS, C. J. On the tenth day of December, eighteen hundred and thirty-five, a venire faci-as was issued by the clerk of the Circuit Court of Morgan county, commanding the sheriff of that county, to summon thirty-six men, who are named in the process, to attend the next term thereafter, of the Circuit Court of Morgan, to serve as jurors.

At the time the process was issued, the law required the Judge of the ' County Court, the commissioners of revenue, the clerk-of the Circuit Court, and the sheriff, to select in the mode prescribed by law, from the list of free-holders and house-holders, which had been previously returned to the clerk, by the sheriff, such persons as a majority of these officers, might deem qualified to serve as jurors.

From the whole number of persons thus selected, and summoned by the sheriff to attend the Court, and who may attend it, a grand jury, for the term, consisting of not less than thirteen, nor more than eighteen, is to.be drawn by lot. The residue of the persons summoned, the law requires to serve as traverse jurors, If these officers fail to select persons to serve as jurors, such persons may be chosen under the act of eighteen hundred and eleven.

Where jurors have not been drawn and summoned in the manner prescribed by law, or do not attend, the Court may direct the sheriff to impannel a jury instanter, of such persons as are by law qualified to serve on juries; and may from day to day, impannel juries of the by-standers, for the dispatch of the business before the Court. The power given by the statute to a Court, is to enable it to obtain juries to try causes then in Court, and not to summon persons from whom a grand jury may be drawn, to inquire of offences, make presentments, and find indictments.

On the ninth of January, eighteen hundred and thirty-six, a statute was enacted, and took effect from its passage, which requires the clerk of the Circuit Court, and the sheriff of each county, under the superintendence of the Judge of the County Court of their county, to select from the whole number of persons qualified to serve on juries, twenty-four persons best qualified, in their opinion, to serve on the grand jury ; which persons so selected, it is made the duty of the sheriff to summons as grand jurors.

So much of the statute law, that had been previously enacted, as required the persons who might be summoned by the sheriff, to serve as grand jurors, to be drawn by lot by the officers áppointed to ascertain who should be summoned, was repealed by the act last mentioned, and such of the persons .summoned to serve on the grand jury, as shall not he placed on the same, are made liable to serve on the petit jury.

The indictment against the defendant, was found by a grand jury impannelled from the persons who were summoned by the sheriff, in virtue of the process of the tenth of December, eighteen hundred and thirty-five. These facts were averred by the defendant, in a plea in abatement, which he pleaded to the indictment. To the plea, the counsel for the State, demurred. The Circuit Court sustained the demurrer, but referred the question arising upon it, as novel and difficult, to this Court to be decided.

The truth of the plea in this case, appears as well from the record as from the affidavit of the defendant, and the legal effect of the demurrer, as an admission by the State. Before the act of January, eighteen hundred and thirty-six, the sheriff had no authority to summon any other persons to attend the next term of the Circuit Court of his county, than such as had been selected, in the mode prescribed by law, by the Judge of the County Court, commissioners of revenue, the clerk of the Court, and him,self.

Since the act of January, eighteen hundred and thirty-six, his authority to summon persons to serve as grand jurors, is limited to such persons as have been selected by the clerk of the Circuit Court and himself, for the purpose, under the superintendence and inspection of the Judge of the County Court. The sheriff derives his whole . authority to summons persons to serve as grand jurors, from the selection of such persons by the proper officers, and if no such selection be made, he has no authority to summon any man to serve as a grand juror.

It cannot be ascertained, whether any man of the grand jury, by which the indictment in this ease was found, would have been selected by the proper officers, as one of the twenty-four -persons, which they were authorised to choose, as best qualified in their opinion, to .serve on the grand jury. Persons summoned by a sheriff, to attend a Court as jurors, but not drawn and summoned, in the manner prescribed by law, are not competent to serve on a petit jury, unless they be summoned again, by a direction of the Court to the sheriff to summon jurors.

Men impannelled as grand jurors, who wfere not selected and summoned to serve for the purpose, are as destitute of authority to inquire into offences and find indictments, as if they had voluntarily appeared in Court, and offered their service as grand jurors. The act of the Court in impannelling the grand jury, did not supply the want of authority in the sheriff to summons the persons who were placed upon it.

As to the question, whether the plaintiff in error ought not to have made his objection to the jurors, at the time they were impannelled, we are of opinion, that where men are without authority, no person is bound to appear and except to their want of authority to inquire into his conduct. In the case of The people vs M’Kay, the Supreme Court of New York decided, that an indictment found by a grand jury, impannelled of persons who liad not been summoned in the mode prescribed by the law of that State, could not be sustained, and the judgment upon it was arrested, on a motion by the prisoner, after his conviction.

We are of opinion, the judgment on the demurrer, in this case, ought.to have been for the defendant. Let the judgment be reversed, and the defendant remain in custody, until he be discharged by due course of law. Aikin’s Dig. 296, 298. Aikin's Dig. 298. Aikin’s Dig. 624, 2 Ed. 18 Johns. Rep. 212.