By the Court,
Safford, J.The record in this case beginning with the steps taken to constitute the grand jury by which the bill of indictment herein was found* previous to and at the November term of the District Court of Douglas county, 1861, exhibits the following facts:
That a grand jury was ordered for that term in accordance with the provision of section 7, chap. 61, Laws 1861, That a venire was duly issued for the number of grand jurors required by law, and whose names had been ascertained in accordance with the provisions of chapter 119, Comp. Laws, 1862. That the venire was received, served *272and returned by the sheriff. That of the persons so summoned. seven only were impanneled as grand jurors. That to complete the panel six persons were transferred by the court from those duly served and returned as petit jurors for the same term, and that two persons were ordered by the court to be selected from the bystanders, which was done by the sheriff. That these persons — fifteen in number, were impanneled, sworn and charged as grand jurors for that term, with G. W. Cosby, one of the persons transferred from the list of petit jurors appointed foreman. That the grand jury so constituted, found and presented to the court the indictment upon which the appellant was. arraigned, and to which he pleaded not guilty at the May term of said court, 1865.
Thereupon a jury was impanneled to try the issue so made. Trial had and a verdict of guilty rendered against the then defendant, now appellant.
The record shows that all the petit jurors who tried this cause in the District Court, were summoned or selected by the sheriff, except one Win. McKinney. All that appears in regard to him, is the fact that he was impanneled and sworn to try this cause with the rest of the jury. After verdict, the appellant moved for a new trial and in arrest of judgment, relying upon the following grounds: That the grand jury which found the indictment, was not constituted according to law; that therefore the indictment was in fact no indictment against the defendant, and did not confer jurisdiction upon the court to try him; that the petit jury which rendered the verdict of guilty was not legally constituted, and therefore the verdict is void.
The motions for a new trial and in arrest of judgment were overruled, and judgment entered against the defendant, who duly excepted and appealed to this court.
Section 24, chapter 119, Compiled Laws 1862, reads as follows: “Whenever for any cause grand or petit jurors shall not have been drawn and summoned to attend any *273District Court, or a sufficient number of qualified jurors shall fail to appear, such court may in its discretion order a sufficient number of grand or petit jurors or both to be forthwith drawn and summoned to attend such court, or such court may, b^, an order to be entered in the minutes of such court, direct the sheriff of the county forthwith to summon so many good and lawful men of his county to serve as such jurors as the case may require.”
Section 25 provides that on receiving a list of the jurors drawn pursuant to section 24, or a copy of the order mentioned therein, the sheriff must proceed to summon such jurors and return their names to the court as upon an original venire.
It will be seen that the statute has provided two methods by which a grand jury may be filled to the required number by any District Court when for any cause a sufficient number shall not be present and answer on the calling of the panel.
'In this instance the court failed to adopt either method. Eight jurors at least were required to complete the panel, as seven only answered of the original number drawn and summoned. Thereupon the court ordered six persons to be transferred from the petit jury to the grand jury and two persons to be selected from the bystanders by the sheriff, as we have before seen.
We think that the court erred in making each of these orders. The proceedings should have been in accordance with the provisions of sections 24- and 25, above referred to.
But if the defendant below had desired to avail himself of any advantages which these errors might have afforded him, at what time during the progress of the trial, and in what way was it incumbent on him to proceed to secure such advantage ? Could he plead to the indictment, allow the trial to go on to a conclusion, thus taking his chances for conviction or acquittal, and then after finding out that *274lie lias been convicted, for the first time, make his objection ?
We dq not think that our Criminal Code allows a defendant so to do, and to its provisions must we 'look as furnishing the rules which are to be followed in cases of this nature according to their stage of progress. These are sufficiently explicit both as regards the rights of the state in prosecuting for the commission of crime, and the saving of those of a defendant who stands charged with such commission. We will mention some of those having reference to the rights of a defendant. It is provided that a defendant may move to quash an indictment for certain reasons which if they exist, will- authorize the court so to do. Pleas in abatement or other dilatory pleas are also recognized, and may be interposed provided their truth be shown by affidavit or other evidence; (sec. 141, Comp. L., 1862, p. 251). Indeed it is not asserting too much to say that under the Criminal Code a party charged with crime may have the benefit of all just matters of defense as well as of all defects and imperfections in the proceedings against him on the part of the state which tend to prejudice his rights. But he must assert his privilege in the proper way and at the proper time or he ma}*- be deemed to have waived it except in case where special provision is made and which may give him a double remedy. In the case at bar the defendant below might have raised the question as to the proper constitution of the grand jury, before pleading to the merits. Had he taken this course his objections would have been properly before the court for its consideration and judgment. But he failed to do so in any manner whatsoever.
After a verdict of guilty, as before stated, he moved for a new trial and in arrest, both of which motions were intended to raise the objection under consideration.
A new trial may be granted or judgment arrested for certain specified causes. Secs. 258, 260, 261, p. 274, and section 189, p. 264, (Comp. Laws, 1862).
*275The cause insisted on and on account of which, a new trial and arrest of judgment were asked in this case, is not among those enumerated. It follows then that no authority was conferred upon the court to grant either motion of the defendant below by any one of the'sections referred to, and we know of no other statute bearing upon the question.
There are, however, other considerations worthy to be mentioned in view of the facts presented in this case. Was the defendant below prejudiced by the errors complained of? There is no pretence that any fraud or corruption was practiced or that any other than competent jurors good and lawful men were sworn on the grand jury, but on the other hand the whole case rebuts any such idea or presumption. Let us suppose that the court (on discovering that a sufficient number of grand jurors did not make their appearance,) had by an order directed the sheriff forthwith to summon so many good and lawful men of the county as would be sufficient to complete the panel, and that the sheriff had performed the duty so required, how can we say that the very same persons who were actually sworn on the jury would not have been selected and summoned by him, and thus the grand jury have been composed of the very same persons in the one case as in the other.
We are unable to see how he was at all prejudiced. Indeed it is scarcely claimed on the part of the appellant that such was the casé. It is the substantial rights of a party which must have been affected, otherwise this court is not authorized to interfere. We are therefore of the opinion that this cause should not be reversed upon the ground stated in regard to the grand jury.
Taking this view it will not be necessary to consider the second point as to the indictment itself. If our first position be correct, it should most certainly be held to be valid and sufficient to sustain the judgment.
*276In regard to the question raised as to the petit jury or one of them, we have no hesitation in saying that it is not material so long as nothing prejudicial to the rights of tbe defendant below is shown to have resulted therefrom.
The mere fact that tbe record fails to show that he was summoned or selected from the bystanders as he might have been, ought not to vitiate the verdict, and the more especially, since the record does show that he was duLy sworn to try the cause with the rest of the jury, and that the whole twelve were good and lawful men of the body of the county.
Other questions have been raised by the record in this case, but as the counsel have not seemed to rely at all upon them, we do not think it necessary to discuss them. The judgment of the District Court will be affirmed.
All the justices concurring.