Section 3535 of the Code Í3 in the following words: “All indictments must be presented to the court by the foreman of the grand jury, in the presence of at least twelve of such jury, including the foreman; must be endorsed ‘filed,’ and such endorsement dated and signed by the clerk.” The bill of indictment in this case appears to have had upon it the endorsement “a true bill,” subscribed by the foreman of the grand jury; and the record recites, that it was made to *370appear to tbe satisfaction of tbe court, that- a bill of indictment had been returned into the court, endorsed a true bill; but it is not expressly asserted, that twelve of the grand jury, including the foreman, were present when the indictment was presented to the court, nor that the indictment was endorsed filed, and the endorsement dated and signed by the clerk.
Conceding, without deciding, that the want of the presence of twelve of the grand jury at the time when the indictment was presented to the court is an objection available otherwise than by plea in abatement, we are confident in the opinion, that the presence of less than the prescribed number is not to be presumed, when the record asserts, (as is done in this ease,) that the grand jury returned the indictment into court, and nothing contradictory of the conclusion that twelve of the grand jury were present is disclosed in the record.
Our old statute, found in Clay’s Digest, 460, § 1, was quite as mandatory, in requiring that the clerk should mark the indictment filed, as 'the section of the Code above quoted is in requiring that he must endorse “filed” upon the indictment, and date the endorsement. In reference to the want of the clerk’s endorsement that the indictment was properly filed, according to the mandate of the old law, this court said in the State v. Clarkson, 3 Ala. 378: “There always is, and necessarily must be, a period in the progress of every prosecution, when the indictment is in fieri; and we are not aware that any entry made in it, or upon the minutes by the clerk, is necessary to give it effect as a record. Indeed, the very fact of pleading to it admits its genuineness as a record.” In this case, the defendant pleaded to che indictment, without any objection to its verity or identity as a legal finding of the grand jury, or to the want of the required endorsement by the clerk. Having done so, an objection to the omission of the record to show that the proper endorsement was made comes too late, if it could be available at any time.
Section 3591 of the Code prescribes, that an objection that the grand jury “were not drawn in the presence of *371the officers, or a majority of them, designated by law,” must be made at the term at which the indictment was found. At the term of the court when the indictment was found, the accused was in. jail in another county, and was not brought to the court. It is contended, that he may complain on error that he was not brought to the court, but was left in the prison of another county, at the term when the indictment was found, and therefore was denied an opportunity to make the objection, the appointed time for making which is the first term. The defendant had opportunity to have presented the objection, if it existed, after the term at which, the indictment was found; and yet no such objection appears to have ever been made, or indeed to have existed. It is manifest that, if the court could have heard the objection at a subsequent term of the court, the defendant has no ground of complaint, unless he had presented the objection.
Notwitstanding the assertion of the Code as to the term at which the objection must be made, we decide, that it would have been competent for the court to have entertained the objection and allowed it, if sustained by proof, at a subsequent time.' "We will not construe the statute as prohibiting, peremptorily and absolutely, the making of the objection at a subsequent term. In giving it such a construction, we should, by a blind adherence to its letter, allow it an operation in derogation of common right, and revolting to the sense of justice: we should make the failure to plead, at a time when the accused was uninformed of the prosecution, or kept away by imprisonment, a waiver of the right to plead. Besides, we must, in construing the statute, look at the decisions in reference to similar statutes before the adoption of the Code. In Sally v. Gooden, 5 Ala. 78, this court decided, in reference to a statute which required that the defendant should be compelled to plead within the first week of the appearance term, and upon failure thereof forfeit his right to make any defense thereafter, that it should be so construed as to authorize the court to permit the defendant to plead at a subsequent term. Under a rule of practice which prescribed the time for the filing of pleas in abatement, *372it was decided, that the court had the discretionary power to allow the filing of a plea at a term subsequent to that prescribed.—Cobb v. Miller, Ripley & Co., 9 Ala. 499; Massey v. Steele, 11 Ala. 340.
"We thus find precedents in our own decisions, which justify the conclusion, that notwithstanding the statutory designation of the term at which a particular objection should be made, it was in the power of the circuit court to consider and pass upon it at a subsequent term. It is obvious, therefore, that the defendant’s deprivation of the right or of the opportunity to make the particular objection was not a necessary result of his confinement in prison in another county during the term of the court at which the indictment was found. He certainly has nó ground for complaint on error that he had no opportunity to make the objection, when he has not availed himself of his right to apply to the court at a subsequent term to exercise its power to hear and determine upon the objection. Whether we would revise the act of the court in refusing to consider the objection, we do not decide, and it may be we will never be called upon to decide.
"We have carefully examined the record, and can find in the proceedings of the court below no error; and we must, therefore, affirm its judgment.
The sentence in this case is defective, in omitting to specify the precise day upon which it was to be executed. We understand that sections 3663 and 3664 authorize us, upon affirming judgment of the court below in such a case as this, to render the proper sentence; and we regard the question of our power to do so as settled by the decisions in Franklin v. The State, 28 Ala. 9, and Liles v. The State, 29 Ala. 24.
It is therefore ordered, that the defendant, George Russell, be, on Friday, the fifteenth day of April, A. D. 1859, between the hours of 10 in the forenoon, and 4 in the afternoon of that day, hanged by the neck until he is dead, at the place and by the officer prescribed by law.