Opinion foy Kinney, J. Indictment for assault with intent to commit a bodily injury. Plea in abatement, and demurrer interposed on the ground that one of the grand jurors before the indictment was found and presented, was taken sick and died, and that the hill was found and presented by fourteen grand jurors. This plea and demurrer were overruled by the court. Hall sues out Ms writ, and assigns this ruling for error. This was an effort to attack the power of the grand jury to find the indictment by testimony aliunde.

It is not alleged in the plea or demurrer that the record disclosed the fact that the bill was found by a less number than fifteen. Slagle and Aeheson, for plaintiff in error. Caleb Baldwin, for the state. If from the record it appeared that the requisite number had been empanneled and sworn it must be conclusive. If that number had been decreased, it could only be shown by the record. The demurrer to the plea in abatement expressly negatives that the record discloses any such fact. In the case of Norris’ House v.

The State, it appeared affirmatively upon the record that the requisite number of grand jurors were not in session at the time the indictment was found and presented. This was admitted by the pleadings. This case then, is entirely different from that one which is cited by counsel. It would be a most dangerous practice to permit the defendant to impeach by his plea, and oral testimony, a record, which has been so often decided to be absolute verity. It cannot be assailed in the way attempted by the defendant. The court below decided correctly.

There does not appear to have been any direct decission upon the demurrer filed by the prosecuting attorney to the plea in abatement, but merely an entry that the plea is overruled. By this we suppose that the demurrer was sustained. Judgment affirmed.