Source: High Court of Errors and Appeals of Mississippi
Date: 1853-04-01
Jurisdiction: Mississippi
Citation: 25 Miss. 589
Opinion
Mr. Justice Yerger delivered the opinion of the court. The judgment in this case must be reversed. It does not appear by the record, that the grand jury were sworn. It has been - repeatedly held, that this is a fatal defect. There is a recital in the indictment, that the grand jury “were duly elected, impanelled, and sworn.” But the court, in the case of Cody v. The State, 3 How. R. 29, say: “ The recital of this fact, in the bill of indictment, cannot supply the omission of it in the record. The record may aid the indictment, but not e converso.
For the authority of the jury to find the indictment must be contained in the record, and the bill becomes no part of the record until it is acted upon and returned into court, in the manner prescribed by law. Let the judgment be reversed, and the cause remanded.