session of the peace, and every commission of oyer and terminer, and of general gaol-delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which on the part of our lord the king shall then and there be commanded them. (d) They ought to be freeholders, but to what amount is uncertain; (e) (9) which seems to be casus omissus, (10) and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and uncertain, but are now settled by several acts of parliament. However they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury to the amount of twelve at the least, and not more than twenty-three; that twelve may be a majority. (11) Which number, as well as the constitution itself, we find exactly described so early as the laws of king Ethelred. (f) "Exeant seniores duodecim thani, et præfectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare."(12) In the time of king Richard the First (according to Hoveden) the process of electing the grand jury ordained by that prince was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably found too large and inconvenient; but the traces of this [*303 institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously instructed in the articles of their inquiry by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution: for the (f) Wilk. LL. Ang. Sax. 117.

(d) 2 Hal. P. C. 154. (e) Ibid. 155.

(9) It is not now essential that such person be freeholders. Russel & R. 177. A juror must be either a freeholder or a householder. Byrd v. The State, 1 Howard (Miss.) 163, 177 (1835).

(10) [An omitted case.]

(11) A grand jury composed of only twelve men is sufficient, if all concur in finding an indictment or presentment. Pybos v. The State, 3 Humphrey (Tenn.) 49, 50 (1842).

"The usual practice is to summon twenty-three; and there is a propriety in it, resulting from the known fact that there is more safety in large than in small bodies of men, and less probability of hatred and ill-will infusing their pernicious influence into public prosecutions. A few men may feel a disposition to hunt down a victim, when a greater number would not engage in the disreputable business. Impartial, intelligent, discreet, respectable men, good and upright citizens, and gentlemen of the best figure in the county' should always be returned as jurors, because the vast authority which attached to them in that capacity ought not, and indeed cannot, be intrusted to those who are ignorant, corrupt, or incompetent, without the utmost danger to life, liberty, and property." Ex parte Chittenden, 6 Fed. Cases, 822 (1832).

The constitution of Texas provides that a grand jury shall consist of twelve men; but nine members shall be a quorum to transact business and present bills. An indictment found by a jury of thirteen men is illegal and void. Rainey v. The State, 19 Tex. App. 479, 482 et seq. (1885).

In North Carolina, where the statute provides that eighteen men shall constitue a grand jury, an indictment found by only twelve of them is valid. State v. Davis, 2 Iredell (N. C.) 153, 158 (1841).

The Vermont statute requires eighteen men to be summoned, impaneled, and sworn as grand jurors; and that twelve of them may find a bill. Though one juror was taken ill and was absent when an indictment was found, the indictment was valid, it being found by twelve jurors. State v. Brainerd, 56 Vt. 532, 535 (1884).

(12) ["Let twelve elder freemen, and the foreman with them, retire and swear upon the Holy Book which is given into their hands that they will not accuse any innocent person, nor screen any criminal."]

finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes, and not to rest satisfied merely with remote probabilities, (13) a doctrine that might be applied to very oppressive purposes. (g)

The grand jury are sworn to inquire only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament. (14) And to so high a nicety was this matter anciently carried, that where a man was wounded in one county and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any one of them; but, by statute 2 & 3 Edw. VI. c. 24, he is now indictable in the county where the party died. (15) And, by statute 2 Geo. II. c. 21, if the stroke or poisoning be in England, and the death upon the sea or out of England, or vice versa, (16) the offenders and their accessaries may be indicted in the county where either the death, poisoning, or stroke shall happen. (17) And so in some other cases; as, particularly, where treason is committed out of the realm, it may be inquired of in any county within the realm, as the king shall direct, in pursuance of statutes 26 Hen. VIII. c. 13, 33 Hen. VIII. c. 23, 35 Hen. VIII. c.

2, and 5 & 6 Edw. VI. c. 1I. And counterfeiters, washers, or min*304] ishers *of the current coin, together with all manner of felons and

their accessaries, may, by statute 26 Hen. VIII. c. 6, (confirmed and explained by 34 & 35 Hen. VIII. c. 26, §§ 75, 76,) be indicted and tried for those offences, if committed in any part (h) of Wales, before the justices of gaol-delivery and of the peace in the next adjoining county of England, where the king's writ runneth: that is, at present in the county of Hertford or Salop, and not, as it would seem, in the county of Chester or Monmouth; the one being a county palatine where the king's writ did not run, and the other a part of Wales, in 26 Hen. VIII.(i) Murders, also, whether committed in England or in foreign parts, (k) may, by virtue of the statute 33 Hen. VIII. c. 23, be inquired of and tried by the king's special commission in any shire or place in the kingdom. By statute 10 & 11 W. III. c. 25, all robberies and other capital crimes committed in Newfoundland may be inquired of and tried in any county in England. Offences against the black

(g) State Trials, iv. 183.

(h) Stra. 533. 3 Mod. 134.

(i) See Hardr. 66.

(k) Ely's case, at the Old Bailey, Dec. 1720. Roache's case, Dec. 1775.

(13) "The court will not inquire into the character of the testimony which has influenced the grand jury in finding an indictment, with a view to quashing the indictment. When it is said by Blackstone that the grand jury should not rest satisfied with probabilities, but require the best evidence in their power, this is plainly only matter of advice to the jury." State v. Boyd, 2 Hill (S. C.) 6 (1834).

(14) In Nebraska it was held that a crime committed in an unorganized county may be inquired into and tried in the court of such other county in the same district as may be designated by the district judge. The statute to this effect is constitutional. Dodge v. The People, 4 Neb. 220, 226 (1876).

(15) By stat. 7 Geo. IV. c. 64, this statute was repealed; and it is enacted by s. 12 that when any felony or misdemeanor shall be begun in one county and completed in another, or shall be committed on the boundary or boundaries of two or more counties, or within five hundred yards thereof, it may be tried and punished in either.-STEWART.

An indictment which does not name the venue is invalid. State v. Warren, 14 Tex. 406, 408 (1855).

(16) [Conversely.]

(17) See this doctrine affirmed in Commonwealth v. Macloon, 101 Mass. 14 et seq (1869). McNeely ex parte, 36 W. Va. 84, 87 (1892).

act, 9 Geo. I. c. 22, may be inquired of and tried in any county of England, at the option of the prosecutor. (1) So felonies in destroying turnpikes or works upon navigable rivers, erected by authority of parliament, may, by statutes 8 Geo. II. c. 20 and 13 Geo. III. c. 84, be inquired of and tried in any adjacent county. By statute 26 Geo. II. c. 19, plundering or stealing from any vessel in distress or wrecked, or breaking any ship contrary to 12 Anne, st. 2, c. 18, (m) may be prosecuted either in the county next adjoining; and if committed in Wales; then the next adjoining English county: by which is understood to be meant such English county as, by the statute 26 Hen. VIII. above mentioned, had before a concurrent jurisdiction with the great sessions of felonies committed in Wales. (n) Felonies committed out of the realm, in burning or destroying the king's ships, *maga- [*305 zines, or stores, may, by statute 12 Geo. III. c. 24, be inquired of and tried in any county of England, or in the place where the offence is committed. By statute 13 Geo. III. c. 63, misdemeanors committed in India may be tried upon informations or indictments in the court of king's bench in England; and a mode is marked out for examining witnesses by commission, and transmitting their depositions to the court. But, in general, all offences must be inquired into as well as tried in the county where the fact is committed. Yet, if larceny be committed in one county and the goods carried into another, the offender may be indicted in either, for the offence is complete in both; (o) (18) or he may be indicted in England for larceny in Scotland and carrying the goods with him into England; or vice versa;(19) or for receiving in one part of the united kingdom goods that have been stolen in another. (p) But for robbery, burglary, and the like, he can only be indicted where the fact was actually committed; for though the carrying away and keeping of the goods is a continuation of the original taking, and is therefore larceny in the second county, yet it is not a robbery or burglary in that jurisdiction. And if a person be indicted in one county for larceny of goods originally taken in another, and be thereof convicted or stands mute, he shall not be admitted to his clergy, provided the original taking be attended with such circumstances as would have ousted him of his clergy by virtue of any statute made previous to the year 1691.(q)(20)

(1) So held by all the judges, H. 11 Geo. III. in the case of Richard Mortis, on a case referred from the Old Bailey.

(m) See page 245.

(n) At Shrewsbury Summer Assizes, 1774, Parry and Roberts were convicted of plundering a vessel which was wrecked on the coast of Anglesey. It

was moved in arrest of judgment that Chester, and not Salop, was the next adjoining English county; but all the judges (in Mich. 15 Geo. III.) held the prosecution to be regular.

(0) 1 Hal. P. C. 507.

(p) Stat. 13 Geo. III. c. 31.

(9) Stat. 25 Hen. VIII. c. 3. 3 W. and M. c. 9.

(18) The criminal law of Indiana being statutory, the common law doctrine that larceny is a continuing act does not maintain in that state. Therefore, one who steals goods in another state and brings them into Indiana cannot be indicted for larceny in the latter state. The thief, however, may be arrested an returned to the proper jurisdiction for punishment. Beal v. The State, 15 Ind. 378, 379 (1860). Contra see Commonwealth v. Macloon, IOI Mass. 1, 6 (1869).

If a county is divided, and a portion of its territory goes into the formation of a new county, a criminal act done before the division, within the ceded territory, can be prosecuted only within the new county. State v. Donaldson, 3 Heiskell (Tenn.) 48, 52, 53 (1870).

(19) [Conversely.]

(20) The law respecting venue in criminal prosecutions is now as follows:

Where murder or manslaughter be committed on land out of the united kingdom, whether within the queen's dominions or without, and whether or not the person killed were a subject of her majesty, every offence committed by any such subject, whether the offence shall amount to murder or manslaughter or of being accessary to such offence, may be dealt with, etc., and punished in any county or place in England or Ireland, where the offender may be apprehended or be in custody; provided, that these provisions shall not prevent any person from being tried out of those countries for any such offence committed thereout; and by sec. 10: where any person being feloniously stricken,

When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill "ignoramus," or, we know nothing of it; intimating that, though the facts might possibly be true, that truth did not appear to them; but now they assert in English more absolutely "not a true bill," or (which is the better way) "not found," and then the party is discharged without further answer. (21)

poisoned, or otherwise hurt upon the sea or any place out of the countries named, shall die of such cause in those countries, or so suffering at any place in England or Ireland shall die thereout, every offence committed in respect of any such case, whether the offence shall amount to murder or manslaughter or of being accessary to either offence, may be dealt with, etc., and punished in the county or place in those countries in the same manner as if such offence had been committed wholly within that county or place. As to offences committed on the borders of counties. By 7 Geo. IV. c. 64, s. 12, where any felony or misdemeanor shall be committed on the boundary or boundaries of two or more counties, or within five hundred yards thereof, or shall be begun in one county and completed in another, every such felony or misdemeanor may be tried and punished in any of the said counties in the same manner as if it had been actually and wholly committed therein.

As to offences committed on persons or property in coaches or vessels. By 7 Geo. IV. c. 64, s. 13, where any felony or misdemeanor shall be committed on any person, or on or in respect of any property in or upon any coach, wagon, cart, or other carriage whatever, employed in any journey, or on board any vessel whatever employed on any voyage upon any inland navigation, such felony or misdemeanor may be tried and punished in any county through any part whereof such coach, etc., or vessel shall have passed in the course of the journey or voyage during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such county; and where any part of any highway or navigation shall constitute the boundary of any two counties, such felony or misdemeanor may be tried and punished in either of the said counties through, or adjoining to, or by the boundary of any part whereof such coach, etc., or vessel shall have passed in the course of the journey or voyage during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such county.

As to larceny generally. By the Larceny Act, (7 & 8 Geo. IV. c. 29, s. 76,) (Now superseded by stat. 24 and 25 Vict. c. 96, 14,) if any person, having feloniously taken any property in any one part of the United Kingdom, shall afterwards have it in his possession in any other part, he may be indicted for larceny in that part where he shall so have such property in his possession, as if he had actually stolen it there; and if any person having knowingly received, in any one part of the United Kingdom, any stolen property which shall have been stolen in any other part, he may be indicted for such offence in that part where he shall so receive such property, as if it had been originally stolen in that part.

As to accessaries. By stat. 24 & 25 Vict. c. 94, 1, accessaries either before or after the fact may be tried in any court that has jurisdiction to try the principal offender.

As to treasons. See Chit. C. L. 188, stat. 7 & 8 Wm. III. c. 3, and subsequent statutes. An indictment for bigamy may, by 9 Geo. IV. c. 31, s. 22 (Now superseded by stat. 24 & 25 Vict. c. 100, 57), be tried in the county where the offender is apprehended or is in custody, the same as if the offence had been actually committed there; (provided the second marriage occurred in England or Ireland).

In an indictment for a libel the venue must be laid in the county where the publication took place.

Indictments for offences against the customs and excise may be tried in any county of England. (See 39 & 40 Vict. c. 36,258.)

Offences committed in a county of a city or town may be tried in the county at large. See 38 Geo. III. c. 52; 51 Geo. III. c. 100; 60 Geo. III. c. 4; 1 Geo. IV. c. 4. (See 14 & 15 Vict. c. 100, 23.) If the indictment states the felony to have been committed in the county at large, and it was committed in the county of a city or town, this is bad. Rex v. Mellor, R. & R. C. C. 144. But if the offence be properly laid in the county of a town, and the indictment is preferred in the county at large, it need not be averred that that is the next adjoining county to the county of the town. Rex v. Goff, id. 179. The 26 Hen. VIII. c. 6, s. 6, which makes felonies in Wales triable in the next English county, extends to felonies created since that statute. Rex v. Wyndham, id. 197.— CHITTY.

(21) The legal termination of a prosecution is sufficiently shown by the refusal of the grand jury to find a bill. A suit for malicious prosecution may be brought after the return "not a true bill" by the grand jury without waiting for the formal order of dis charge by the court. Potter v. Casterline, 41 N. J. L. 22, 27 (1879).

But a fresh bill may afterwards be preferred to a subsequent grand jury.(22) If they are satisfied of the truth of the accusation, they then *endorse upon it "a true bill," anciently "billa vera." (23) The [*306 indictment is then said to be found, and the party stands indicted. But to find a bill there must at least twelve of the jury agree; for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbors: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation, and afterwards by the whole petit jury of twelve more finding him guilty upon his trial. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree;(r) and the indictment, when so found, is publicly delivered into court. (24)

(r) 2 Hal. P. C. 161.

(22) A bill of indictment returned "not a true bill" cannot be reconsidered by the same grand jury, but a new bill may be sent. State v. Brown, 81 N. C. 568, 570 (1879). Where a bill of indictment is "ignored, a new bill charging the defendant with the same offence may be sent to the same grand jury, and the same and additional evidence laid before them to support it. State v. Harris, 91 N. C. 656, 658 (1884). “A refusal to find a bill is equivalent to a finding under oath of the grand jurors that the evidence is insufficient to warrant the charge. The defendant is therefore entitled to his discharge, and no prosecuting officer has the right to treat such finding as void," and lay another information before the grand jury. Richards v. State, 22 Neb. 145, 148 (1887). But see Fitch v. The State, 2 Nott & McCord (S. C.) 558, 559, which holds that where the grand jury returns “ no bill," the accused person is not entitled, as a matter of course, to a discharge from his recognizance, but the solicitor may prefer a new bill against him without assigning any cause.

(23) The endorsement of the grand jury is a necessary part of an indictment. "A copy which omits this indispensable part of the indictment is imperfect, and is not a copy within the intendment of the act, which contemplates that the prisoner shall have a true copy of the entire instrument. The prisoner does not waive his right to a true copy of the indictment by pleading before a copy has been served upon him. State v. Howell, 3 L. Ann. 50, 52 (1848). The indictment must charge the prisoner with the same offence as that laid in the bill. Sharff v. Commonwealth, 2 Binney (Pa.) 514, 519 (1810). Indictments found by the grand jury should be signed by the foreman, and be thus returned into court, in the presence of the jury. Where an indictment was returned into court, but the signature of the foreman was by accident omitted, it was held, that it could not be afterwards affixed by the foreman, or amended, except on recommitment to the jury. State v. Squire, 10 N. H. 558. 560 (1840). "When a written accusation is properly indorsed and returned by the grand jury into court it becomes a valid indictment; and the obligation of the accused to answer is not destroyed by the clerical omission of a recital upon the minutes, of the fact of the return." Mose v. The State, 35 Ala. 420, 425, 426 (1860). The practice for the foreman to sign his name to the finding of the grand jury, though useful and proper, does not seem to be essential. It is the grand jury's returning the bill into court, and their publicly rendering their verdict on it, in the form "a true bill." and that being recorded or filed among the records of the court, that makes it effectual. State v. Calhoon, I Dev. & Bat. Law (N. C.) 374, 376 (1835). It was also held in the above case that, if the foreman must put his name on the bill, the variance in the manner of his spelling it, from that of the clerk's, is immaterial. Although the failure of the foreman of a grand jury to certify under his hand an indictment to be a true bill is no cause for arrest of judgment after a trial and conviction, it is ground for quashing the indictment before trial. State v. Burgess, 24 Mo. 381, 382 et seq. (1857).

(24) "There is no necessity for the insertion upon the record of a special entry stating the finding of the grand jury; it is sufficient if upon the record there is enough to show a delivery of the indictment into court by the grand jury." Collins v. State, 13 Fla. 651, 659 (1870). It is not necessary that the entire panel of a grand jury be present when an indictment is found, so long as twelve concur. State v. Ostrander, 18 Iowa, 435, 443 (1865). "It is error to put a defendant on trial on an indictment unless it is returned into open court, and the only evidence of that fact inust be found in the record of the case. Gardner v. People, 20 Ill. 430, 433 (1858).