dissenting.
1. The act of drawing the names of grand jurors out of the box where they are kept, is a mere ministerial act. The names so drawn at one term of the court, to be summoned to appear at the next term, do not necessarily constitute the grand jury then organized; they may not all appear, only one may appear, and yet a legal grand jury can be built upon that one from the by-standers, if only the persons qualified to serve as grand jurors be used to make up the deficiency. The essential thing is that the grand jury shall be composed of upright and intelligent persons, selected by the ordinary, the clerk of the superior court, and three commissioners appointed by the judge of the superior court. If eighteen such men, drawn by the judge of the superior court, at a regular term thereof, or at an irregular term thereof, or in vacation, or at a term illegal for other business, be summoned, by virtue of his precept to the sheriff, to appear at the next regular term of the *431superior court, and do appear, and are sworn and organized as a grand jury for said regular term, and at that regular term find a bill of indictment true, such indictment so found is sufficient, in law, to put the accused upon trial for murder; and if he be fairly tried by a lawful jury of twelve men selected by himself, and be found guilty, he must abide the sentence of the law, and should not be allowed to escape or procrastinate by any such naked technicality as a plea that the judge of the superior court had adjourned the court one week without sufficient cause, and had then, at this session, one week later than usual, performed the mere ministerial act of drawing the grand jurors for the next regular term.
2. The whole spirit of our legislation accords with the above proposition and conclusion. The act of 1799 (Cobb’s Digest, page 547,) declares that the judge, if he should not hold the court, “shall nevertheless attend in person for the purpose of drawing jurors, or shall transmit to the justices of the inferior court in writing a request that they, or any two of them, attend at the clerk’s office” for that purpose; the act of 1815 (Cobb’s Digest, page 552,) declares that whenever there shall be a failure of the judge of the superior eourt to draw jurors, then the justices of the inferior court, or a majority, may act; then comes the act of 1869, (Code, sections 3911, 3912,) which declares that the judge shall draw the jury at the close of the term, and on his failure, then the ordinary and clerk and commissioners shall act; and then, to provide against all emergencies, comes the act of 1873, (Code, section 3942,) which declares, after enumerating other emergencies, that when, “from any other cause, such court has convened, or is about to convene, and there have been no juriés drawn for the same, it shall and may be lawful for such judge to draw juries, so many as may be necessary for such court, and cause them to be summoned accordingly, in the manner prescribed for dr awing-juries, at the close of the regular terms of such courts respectivelyso that the duty is upon the judge to draw juries, and he may do so at any time so that they can be summoned as they would be if drawn regu*432larly. If, then, he may do so in vacation, can he not at an irregular or illegal term of the court? The grand jurors who found this bill were regularly summoned and organized and sworn, were regularly qualified in every respect, and the only complaint is that the judge drew them out of the box at an irregular or illegal term. It is not pretended that defendant was hurt by it, but the complaint is purely technical, with .the reason and spirit of our whole legislation against it, and not only the reason and spirit, but the letter of our last act of 1873 in its teeth.
3. This case cannot be made to fit upon the Hoye case as a corner-stone. It touches that case scarcely anywhere. There, the court tried Hoye at a term to which it had illegally adjourned. All the powers of the court were called into requisition to try him; the judicial mind, its skill, learning, discretion, all were invoked to try a case of life and death. Here, a child could have done what the judge did — he put his hand in the box, drew out a name, called it, and put itdn the other box — a hand, an eye, a voice, were all that were necessary to do the ministerial act. -The act of the court in the Hoye case was altogether judicial; here, the act of the judge is altogether ministerial. What the court did in the Hoye case, could be done only in court; what the judge did here, could be done at chambers; what the court did in the Hoye case, could be done only in term; what the judge did in the case at bar, could be done in vacation; what was done in the Hoye case, nobody.but a judge of the superior court could do; what was done in the case at bar, the inferior court might have done formerly, and the ordinary, with the clerk and commissioners, can do now. What was done in the Hoye case required judicial skill, somewhat akin to that scientific skill which General Newton displayed in engineering the blowing up of the rock in.New York harbor; what was done in the case at. bar, the judge’s child could have done as easily as General Newton’s little daughter’s hand applied the match which fired the train. All the judicial machinery of the court was absolutely necessary to try Hoye; the manual act of *433drawing without one particle of discretion or judgment, was all that was required to draw the grand jurors. In the Hoye case, this court held that the session at the term to which the court was adjourned, was legal for some purposes while it was illegal to try Hoye; if legal for any purpose, surely it was legal to enable the judge io do the mere ministerial act of drawing the jurors to be summoned for the next court.
4. The rulings of the court appear to me to be correct in the main and not injurious to the defendant; the charge legal and impartial, the whole trial fair, the verdict supported by the evidence, and as the presiding judge who tried it is satisfied with the finding, I dissent from the judgment of the court in ordering the case to be tried over.