The opinion of the Court was drawn up by
Davis, J.To the indictment in this case the defendant filed a written motion, in the nature of a plea in abatement, praying that it might be quashed, for the reason that some of the grand jurors by whom it was found were not legally drawn, and had no authority to act in the premises. The ■validity of the indictment is submitted to us, by agreement, upon the facts which appear by the venires, and the returns thereon.
The venires did not direct the constables to whom they were sent, in what manner they should notify the meetings in their respective towns for drawing the jurors. This was not necessary. The mode of giving notice was prescribed by statute, except in those towns where the inhabitants had fixed some other mode. And it was the duty of the constable in each town to give the one or the other. The statute has since been changed, making the notice uniform in all eases. But no statute, or rule of law, has ever required the notice to be set out in the venire.
*576Nor is it indispensable that the constable should state in his return what notice he has given, though he ought to do so. The facts, if necessary, can be proved aliunde. American Bank v. Doolittle, 14 Pick., 123.
Upon all the venires but one, in the case at bar, nothing appears in the returns, except the fact that the constables "notified the inhabitants,” &c. But, upon a collateral issue, like the one before us, the notice will not be presumed to have been defective, without evidence. Gilmore v. Holt, 4 Pick., 258. The jurors are admitted to have been regularly acting as such, under the direction of the presiding Judge. The defendant having alleged in his plea that they were "not legally drawn or summoned,” the burden of proof is upon him to show it, dehors the record, or by it. 1 Greenl. Ev., § 92.
After this indictment had been returned, some of the constables came into Court, and were allowed to amend their returns according to the facts. This has been done, even after a verdict, in a capital case. Commonwealth v. Parker, 2 Pick., 550.
But the return of the constable of Augusta, shows affirmatively, that J. E. Sturdy was drawn as a grand juror' without any notice to the inhabitants, and with only a verbal notice to the municipal officers. Sturdy was one of the grand jury by whom the indictment was found. Though duly sworn, he had no authority to act.
In Low’s case, 4 Greenl., 439, all the jurors were competent, but the indictment was found by less than twelve. In State v. Symonds, 36 Maine, 128, three jurors who were disqualified, because not legally drawn, acted in finding the indictment, and it was quashed because there were only eleven who were qualified. In the case at bar there were seventeen, for aught that appears, who were competent to act. Does the fact that another was present, and acted with them, who was incompetent, render the indictment void ?
The mere fact that a stranger was present when the in*577dictment was found, would not render it void. Though obviously proper, and highly important, that the proceedings of a grand jury .should be in secret, one who is indicted cannot take any advantage of it if they are not. Shattuck v. The State, 11 Ind., 473. The secrecy is not required for his benefit, — but otherwise. " One reason may be to prevent the escape of the party, should he know that proceedings were in train against him; and another may be, to secure freedom of deliberation and opinion among the grand jurors, which would be impaired if the part taken by each might be known to the accused.” 1 Greenl. Ev., § 252.
But the fact that an incompetent juror was not only present, but participated in the proceedings, presents a more serious question; not on the ground that, without his concurrence, there were not twelve jurors in favor of finding the indictment. Such a fact, if essential, must have been pleaded. But even if the jury were unanimous in finding the bill, they might have been so influenced by arguments and opinions of each other, that it would be impossible for us to know that the indictment would certainly have been found, if none but the competent jurors had acted.
The question here presented was first raised in the fourth year of Charles the First, in Withipole’s case. Three of the jury of inquest were incompetent to serve; and the indictment was quashed for that reason, though there were more than twelve remaining. Cro. Car;, 134, 147. This decision was under the statute 11 Hen. IV., c. 9, which made "void” all indictments so found. Such has been the law ol England ever since that time. 2 Hale’s P. C., 60, 155; 4 Black., 302. And the same rule has been adopted in this country. Slate v. Duncan, 7 Yerg. (Tenn.) 271; Barney v. State, 12 S. & M. (Miss.) 68; State v. Jacobs, 6 Texas, 99. Indictment quashed.
Tenney, C. J., Rice, May, Goodenow and Kent, JJ., concurred.