The State v. Brooks.. 6. The code provides, that a grand jury may be summoned by the Court when none is in attendance under the venire, and when a jury is thus constituted, the accused is not invested with the right to enquire if the form prescribed by the statute has been pursued or otherwise. 7. In pleas of abatement to the constitution of the grand jury, the greatest accuracy and precision are necessary, as two modes are provided by which a jury may be constituted, and therefore, the plea must negative that either mode was pursued. 8. The essential matters to constitute a grand jury, when constituted by the board of county officers, seems to be, that they shall select the jury from the citizens at large, out of a list biennially obtained by the sheriff. Every matter beyond this seems nothing more than direction as to the manner in which the officers shall perform their duties. 9. In all pleas in abatement of indictments, it is essential that the facts should be stated out of which the defence arises, or a negative of the facts, which are presumed from the existence of a record. On points reserved by the Circuit Court of Mobile, as novel and difficult. THE defendant was convicted at the Circuit Court of Mobile, upon a charge of betting upon an unlawful gaming ta-ble. He pleaded several pleas in abatement of the indictment; to all which the State demurred, and had judgment of respondeas ouster on the demurrer. The matters of defence asserted by these pleas, present the questions reserved for the decision of this Court, and are as follows, towit: 1. That the clerk of the Conrt did not, in the body of the writ of venire facias, recite at length, the names, places of residence, and occupations of the several persons named therein, and directed to be summoned as grand jurors. 2. That the indictment was not preferred to, nor enquired of, and a true bill found thereon by, a grand jury of good and lawful men, free-holders and house-holders, selected, summoned, and returned agreeably to law. 3. The same general allegations as the second, with the specification in this, to-wit, that F. S., one of the grand jurors by whom the indictment was found, was, at the time when he was selected, and his name returned to the clerk of the Circuit Court by the sheriff of Mobile county, a member The State v. Brooks. of an incorporated fire company of said county, to-wit, of the Franklin Fire Company, No. 3, of the city of Mobile, incorporated by an act of the General Assembly of the State of Alabama, approved 9th December, 1841. 4. The same general allegations, with the specification in this, to-wit: That the grand jury was not composed of persons selected from a list of free-holders and house-holders of said county of Mobile, obtained by the sheriff of said county, and returned by him to the clerk of the County Court, on the 7th day of May, 1842. 5. That R. L. W., who was one of the grand jury by whom the indictment was found, and who was impannelled to supply the place of one of the original venire of grand jurors who was absent, and not summoned as one of the grand jurors, as the law directs, in this, that the said R. L. W. was not summoned and drawn according to the sixteenth and seventeenth sections of the tenth chaptor of the penal code. 6. That R. L. W., one of the grand jurors, &c., was not one of the jurors selected from the list of free-holders and house-holders, and summoned by the sheriff, nor was his name contained in the venire facias returned into Court; nor was he summoned, and his name drawn, in pursuance of any order of the Court; made in consequence of the absence of any of the jurors mentioned in the venire facias. 7. That the grand jury by whom, &c., was not selected from a list of free-holders and house-holders obtained by the sheriff of said county of Mobile. 8. The grand jury by whom, &c., was composed of persons whose names were drawn without a previous selection of persons qualified to serve as jurors, having been made from the list of free-holders and house-holders of said county of Mobile, obtained by the sheriff of said county. 9. That no selection of persons qualified to serve as grand jurors, was made, as required by law, from the list of freeholders and householders of said county of Mobile, obtained by the sheriff of Mobile county. 10. That the names of the persons composing the grand jury, by whom, &c., were not drawn by the clerk of the County Court of said county of Mobile... 11. That the minute of the drawing of the grand jury, by The State v. Brooks. whom, &c., was not signed by the clerk of the County Court and the attesting officers, nor was the same filed in the office of the clerk of the County Court. 12. That the list of the drawing of the grand jury, by whom, &c. was not made and certified by the attending officers and the clerk of the County Court. HOPKINS and PHILLIPS, for the defendant, insisted that all the pleas were good. The general principle asserted is, that the grand jury must be constituted in strict conformity to the statute, and if otherwise, a party indicted may plead in abatement. By the express terms of the statute, exclusion from the jury is the consequence of what otherwise would be considered as a privilege of exemption; and the form and manner of constituting the lists from which the jury is to be ob tained, is made matter of substance. [Clay's Dig. 451, §.5. 456, § 35; 452, § 10; 453, § 16, 17.] Independent of the peculiar terms of the statute, repeated decisions have established that the grand jury shall be obtained in the mode directed by the statutes, and one formed in any other manner is illegal. [State v. Williams, 5 Porter, 135; The State v. Middleton, ib. 495-v. Lyon, 7 ib. 167-v. Clarkson, 3 Ala.. Rep. 378.] THE ATTORNEY-GENERAL, contra, urged, that the statute ought to receive a reasonable construction; for it could not be supposed that the Legislature ever contemplated that the shaking of the box, or writing off the list in a fair hand should ever be made the subject of examination at the instance of one indicted; yet these matters are as much matters of substance as many of those urged by the pleas. It is true the jury is to be selected in the manner required; but it is unimportant to one indicted, whether the list was returned, or the names written out at full length. The action of the persons to whom the arrangement of the lists and the drawing of the jurors is confided, is conclusive, and cannot be collaterally impeached. [State v. Clarkson, 3 Ala. Rep. 378.] GOLDTHWAITE, J.-1. One object of the sixteenth chapter of the penal code is to provide a select class of indivi The State v. Brooks. duals to serve as grand and petit jurors, instead of permitting them to be constituted, as well as summoned, at the discretion of the sheriff, or other executive officer of the law, from the citizens of the county generally, and at large. The selection of this class of individuals is confided to a board composed of the clerk and officers of the county, and that is invested with large discretionary powers in regard to the selection and rejection of individuals who, of the free-holders and house-holders of the county first ascertained by the sheriff, are to discharge the responsible duties of jurors. It does not admit of question, that a grand jury constituted in any other manner than is prescribed by this chapter, is without a legal warrant. [State v. Williams, 5 Porter, 135.] The board thus constituted is required to perform its duties in a particular manner, but is entirely independent of any supervision or control; its action by the eighth paragraph of the ninth section is to be ascertained and made known by means of the certificate of the officers who compose it ; when this certificate is made, its functions cease for the time, and there seems to be no mode by which its action upon the matters confided to it can be collaterally called in question or re-examined. The jurors then selected, are ascertvined from the certificate of the board, which, in effect, is the same as a commission emanating from a proper source. It is not a question now to decide, whether fraud, mistakes, or irregularities, committed by this board, cannot be enquired into, and its action set aside by the Court previous to the organization of the grand jury, even though the proper certificate may be produced; but we think no such enquiry can be made at the instance of one indicted, so as to affect the prosecution. The jurors when once selected and certified, seem to stand in the same condition as any other de facto functionaries, whose acts will not be vitiated, although they may afterwards be set aside as having had no right in the first instance to exercise the function. 2. It is urged, however, that this board is limited to the selection of individuals who are house-holders or free-holders, and of integrity for character and sound judgment, and that besides some grounds for positive exclusion, it cannot lawfully select any individual of the various professions, avoca The State v. Brooks. tions and callings, which are exempted from the duties of jurors. It does not seem to be a consequence of the selection of one or more of those exempted persons, that an indictment found by a grand jury, of which they are members, should be abated, whether the exempts are placed on the jury list through accident, ignorance or design; because, though the privilege of exemption is conferred upon the individual, he is not disqualified so as to be incapable of discharging the duties required of a juror. The sentence at the end of the fifth section, providing that such exempted persons shall be excluded from serving on juries, unless by the consent of both parties, evidently applies alone to petit jurors; for consent can be given only when parties are ascertained, and not before the trial. It must be conceded, this sentence seems to conflict in some degree with the sense of what precedes it; but it cannot control the construction called for by the otherwise apparent object and intention of the chapter. In point of fact, this sentence was not in the code as submitted to the Legislature, but was adopted afterwards, as an amendment. Its effect is to make the exemption matter of exclusion, if demanded by either party at the trial of a cause. The 35th section, for which so much effect is claimed, refers to the qualifications of jurors, when summoned by the Court, as they may be, whenever it becomes necessary to constitute a grand or petit jury in consequence of the neglect of the board to select the materials to compose one; or when those selected are set aside from any cause. It speaks of a jury summoned, in contradistinction to one selected. It adds nothing to the force of the previous sections, but merely provides, as also does the 31st section, that jurors, whether summoned or selected, shall possess the same qualifications and be free from the same objections. 3. It is further urged, that the 39th and 51st sections recognize and permit the challenge of the panel and array, both of the grand and petit juries; also, that a plea in abatement is proper, either to the array of the grand jury, or to the disqualification of any member of it. There is no question of this, but the challenge to the array, or a plea in abatement to the panel, involves the inquiry only, whether the jury has |