delivered the opinion of the court,
We are of opinion that the first assignment of error is sustained, and the judgment must therefore be reversed. The defendant was tried in the Court of Quarter Sessions for an offence of which that court had no jurisdiction. This alone, however, would not have constituted a sufficient objection to the validity of the trial and sentence, after a verdict and after a certificate of the cause into the Oyer and Terminer. Had there been a legal and actual Court of Oyer and Terminer in session at the time the case was tried, we should have held the subsequent certificate of the cause into that court nunc pro tuno as sufficient, upon the authority of Brown v. Commonwealth, 28 P. F. Smith 122. But in point of fact there was no legally constituted Court of Oyer and Terminer in session, or capable of sitting at the time of the trial. The Act of 14th April 1834, sect. 113, provides that “the number of persons who shall be summoned and returned, as aforesaid, to serve as petit jurors in any Court of Oyer and Terminer, shall not be less than forty-eight nor more than eighty, and in any other court of criminal jurisdiction not less than twenty-four nor more than sixty.” Now to summon thirty-eight jurors to serve in a Court of Oyer and Terminer is not a mere defect or irregularity in the venire. Without a panel of forty-eight jurors, summoned and returned for service, an essential constituent of that court is wanting. If a panel of thirty-eight would be a sufficient compliance with the law we see no reason why a number still less would not suffice. The defect, or omission rather, is fatal to the constitution of the court, and hence the certificate of a cause from the Quarter Sessions into a court so composed, is inoperative to effect the transfer. This consideration distinguishes the present case from all those cited by the learned judge of the court below. We hold, therefore, that there' was no valid trial and sentence, and must reverse the judgment for that reason. This decision makes it unnecessary to consider the other errors assigned. We cannot forbear, however, remarking that, in our opinion, the physician who, on the day after the occurrence, examined the person of the girl upon whom the offence was *25alleged to have been committed, should have been called as a witness and required to testify by the district attorney. Whether his evidence tended to acquit or convict, it was demanded equally by the cause of humanity on the one hand, or of justice on the other. We say this more especially because there was no direct evidence of the factum of the crime, and no proof of actual penetration, the prosecutrix having testified that she was insensible and had no knowledge of what took place. We do not reverse for this reason, and do not sustain the fifth assignment of error, which raises the question, but merely express our opinion as to what should have been done in the peculiar circumstances of this case.
Judgment reversed, and venire facias de novo awarded.