comes necessary to determine whether that law, in respect to the number of which a grand jury should be composed, has, by the acts above referred to, been altered or repealed.

The act of 1854, local in its operation, but made general by that of 1856, is silent as to the number of the grand jury. And it does not in express terms repeal the provisions of the sixth section of the statute of 1830, which declares that the grand jury shall be constituted on not less than thirteen nor more than eighteen persons. It seems, therefore, justly inferable, that the legislature, in requiring the sheriff to summon twenty men to serve as grand jurors, did not thereby intend to designate the number of which the grand jury should be composed, but only to provide a body of men out of whom a grand jury should be selected. Indeed the act itself leaves this a matter of inference. The second section of the act directs that the grand jurors thus summoned should be empaneled, sworn, and charged in the manner then prescribed by law. Another consideration renders this construction still more probable. It is evident upon an examination of the language employed in the same section, that the legislature proceeded upon the supposition that the number of the grand jury was prescribed in the act itself, or by some antecedent law, which it was not its intention to repeal. It directs, that in case a sufficient number shall not be in attendance to constitute a grand jury, it shall be lawful immediately to summon others. This language appears to indicate, and very clearly too, the whole number (twenty) directed to be summoned should not be requisite to the due constitution of the grand jury. For if the legislature, by providing that twenty men should be selected and summoned by the sheriff, intended to fix the number of the grand jury at twenty, it would have directed that if any of the twenty summoned should fail to attend, that others to supply their places And this construction of the statute was applied in the case of Weeks v. State, 31 Miss. R., 490.

should be summoned.

The statute, as above remarked, is silent in reference to the number of the grand jury. It results, therefore, from the decisions in Weeks' case, that if the act of 1830 in this respect be repealed, the legislature intended to leave it to the discretion

of the judge to order any number of persons, not exceeding twenty, to be empaneled and sworn as a grand jury. It is unnecessary to say that this construction is not to be tolerated. Upon every view which we can take of the subject, it is our opinion that, in the act under consideration, the legislature did not intend to interfere with the pre-existing law, which designated the number of which the grand jury should be composed. The result of this conclusion is, that the grand jury who found the indictment in this case were illegally constituted. And hence, that the judgment should have been arrested, on the motion of the plaintiff in error.

JOHNSON V. STATE, 33 Miss. R., p. 363.

GRAND JURY.

The provision of the statute that grand jurors shall be summoned "at least five days" before court, is merely directory, and for the convenience of the persons summoned, who, if not allowed the five days' notice, might not be obliged to attend; but the observance of this provision is certainly not necessary to the legality of the grand jury.

In error from the circuit court of Tippah county. SCRUGGS, J.

John F. Cushman, for plaintiff in error,

Cited, pamphlet Acts of 1854, p. 468; Hutch. Dig., p. 887, 5; McQuillen v. State, 8 S. and M., 587; Rawle v. State, 24 Miss. R., 621.

T. J. Wharton, attorney general,

Cited, Weeks v. State, 31 Miss. R., 490.

HANDY, J.

This was an indictment in the Circuit Court of Tippah county for selling liquors without license, and in violation of law. The defendant pleaded, in abatement, that one of the members of the grand jury which found the indictment was not summoned at least five days before the first day of the term at which the indictment was found; and that said grand jury was not sum

moned and empaneled to supply the place of any one of the grand jurors who had been summoned, and had failed to attend,

etc.

To this plea a general demurrer was filed in behalf of the state, which was overruled, whereupon the court allowed the state to file a replication traversing the plea; and upon the trial the verdict was for the state.

It is now insisted that the judgment should be reversed on two grounds. 1st. Because, upon the demurrer to the plea overruled, the defendant was entitled to judgment upon the plea ; and, 2d, because upon the trial the court excluded from the jury the testimony offered, to show that the juror in question had not been summoned five days before the first day of the term at which the indictment was filed, the testimony offered tending to contradict the sheriff's return as to the summoning of the juror.

Upon the first point, it appears that after the judgment upon the demurrer, no motion was made for a judgment of discharge of the defendant, nor was any objection taken to the filing of the replication; but the defendant took issue upon it, and went to trial. If this would not be a waiver of his right upon the demurrer, it would be a good reason why he should not have judgment here upon the demurrer, if it was manifestly well taken, and should have been sustained.

We think it clear that the plea was insufficient, and that the demurrer should have been sustained. The provision of the statute requiring that grand jurors should "be summoned at least five days before the first day of the court" to which they may be summoned, is manifestly merely directory to the sheriff, and for the convenience of jurors, that they may have sufficient notice of the service required of them. And though it might be true that a juror could not be compelled to attend unless so summoned, yet if he thinks proper to attend and serve without such notice, it constitutes no objection to the regular - organization of the grand jury. The time of summoning the jurors, except so far as their own convenience is concerned, is quite an immaterial thing, which could in no wise affect their official acts.

This view of the case disposes of the second objection, and renders the evidence offered by the defendant immaterial. Let the judgment be affirmed.

NED and TAYLOR v. STATE, 33 Miss. R., p. 364.

HOMICIDE.

If no objection be made in the court below to the examination of a witness, and if no motion be made to exclude his testimony from the jury, it will be too late to object to his competency in this court for the first time.

The principal witness against the accused, and whose testimony was necessary to their conviction, was a slave. The accused were also slaves, and were charged with the murder of another slave; all belonging to the same master. The witness, on the second day after the killing, was charged by his master with a knowledge of it; which ho denied. He was afterwards tied, and stricken one blow by his master; and he and the other slaves were, at the same time, informed by the master that he intended to ascertain who did the killing, and that whoever was guilty should be hung. The witness thereupon stated that he was an eye-witness to the killing, and that the accused committed the deed, and that they had threatened to kill him if he ever divulged it; and he also, at the same time, gave a minute account of the transaction. Four months thereafter he was examined on the trial, making, in substance, the same statement. He was corroborated, in some respects, by other witnesses; and he differed from some others as to the time of the day at which certain facts, having a material connection with the question of the guilt or innocence of the accused, transpired. Held: That he was a competent witness, and that his credibility was a matter peculiarly in the province of the jury, and that their verdict convicting the accused of the homicide, as well warranted by his testimony.

If the verdict be rendered under such circumstances that its purity might have been affected, it will be set aside. But if it could not have been affected, it will be sustained. Where, therefore, one of the jury, pending the trial, being at the window of the courtroom, called to a person in the street, and asked him to request his (the juror's) wife to send him his supper, to which the person thus addressed replied that “he would," and the supper was sent as requested, and the persons who brought it came into the room where the jury were confined, but were not permitted to deliver it to the juror, the officer in charge of the jury received it from their hands, and delivered it to the jury. The officer also kept the persons who brought the supper on the opposite side of the room, sixty feet from the jury, whilst the supper was being eaten. The officer also testified that nothing passed between the juror and the person addressed by him in the street except what is above stated; and that, to his knowledge, the jury conversed with no one. It was held, that there was no improper tampering with or sinister influence brought to bear on the jury, and no cause for setting aside the verdict.

The state may, in a criminal case, examine a witness whose name is not marked on the indictment, and who has never been summoned to testify.

In error from the circuit court of Yazoo county. HENRY, J.

The plaintiffs in error were indicted in the court below for the murder of Ely, a slave. Upon the trial, W. M. Pickett, for

VOL. II.-67

the state, testified that he was owner of the defendants, Ned and Taylor, and also of Ely, the deceased. That on Sunday night, July, 1856, being informed that Ely, who was his driver, was missing, and suspecting that some casualty had befallen him, he caused a lake to be dragged, which was distant about one and a half miles from his negro quarter; that Ely had a fish-trap in this lake, and was in the habit of visiting it on Sundays. That this search was fruitless, and on Tuesday following he rode down to the lake, and discovered Ely's body floating on the water. After the body was removed, he noticed that the skull was fractured. Witness then made a search, for the purpose of ascertaining who had committed the murder. He found a pair of pantaloons in one of the negro cabins, which Ned, one of the accused, acknowledged were his; on them were spots of blood.

A. F. Carson, for the state, testified that Ely was on the plantation on the Sunday before referred to; was in good health, but was missing on Sunday night. He examined Ely's body after it was found. His head was fractured and broken, as if struck by an axe; the mouth was mutilated, as if it had been bitten by fish. Witness thought the wounds might have been made by a hatchet, but not by a snag.

Sam, a slave, a boy about fifteen years old, and belonging to William M. Pickett, testified for the state that, on Sunday before referred to, he (witness), Ely, and another negro man named Charles, started about one hour by sun to the lake. After going some distance, Charles left them, saying he was going home. Witness and Ely went to the lake together, and remained there about half an hour fixing the fish-trap. They then started home, and about one-quarter of a mile from the lake, just as they passed by a large tree, he heard the report of a pistol. Witness and Ely both looked back, and saw Taylor (one of the accused) coming from behind the tree with a bluecolored double-barreled pistol. Taylor laughed and said he had scared Ely; to which Ely replied, "No, he hadn't." Taylor then bantered Ely to wrestle with him; Ely declined, when Taylor gathered him around the body and threw him down. After wrestling some time, Ely called to witness to get some