I fully concur with the views expressed by the Chief Justice, but there are other grounds upon which I rest this case. Unquestionably it is law, recognized by several decisions in our State that where a man is proved to be insane, it remains and shifts the burden of proof upon the other side to show the contrary, notwithstanding that fact, if a person be confined in a lunatic asylum *390and is afterwards brought, forward as a witness, then it is a matter in the discretion of the Court to determine as to his capacity. That capacity is to be determined from the facts adduced before the Court. Because the parties cannot produce that evidence not is a matter with the Court. The testimony here on the part of two physicians is that this man could not give a correct statement; that this man was not a man to be relied upon, so far as his statements are concerned. That is Dr. Burton’s testimony. Dr. Hammond says that during the time he was there, reliance could not be placed upon any statement he might make. So far as his testimony is concerned, he says that excepting upon this occasion, he has not seen him since he left the asylum. If the state had produced witnesses here and had shown that though he was utterly unfit at the time to testify, but that reason had been restored, notwithstanding the fact that he remained in the asylum, that would have brought it within the reasoning of Mr. Justice Field, unquestionably, but what have they here to show us that ? Nothing in the world but the testimony of the party himself. Is there anything that goes to contradict or in any way impair the impression made upon our minds by the two witnesses who have testified here of this man’s inability ?
For these reasons, I concur with the Chief Justice.
Grubb, J.The defence have objected to the admissibility of David M. Waples, as a witness for the State, on the ground that he is now incompetent to testify by reason of his alleged insanity. On this question we are equally divided. As Judge Marvel and I are on the prevailing side, in favor of his admissibility, we deem it proper to present the reasons for our decision, especially as our dissenting associates have expressed their views.
It is the duty of the Court to hold impartially the scales of justice between the prisoner and the State and to guard carefully the rights of both. This objection is now made to a witness for the State. Hereafter it may be urged against a witness for the' accused. Hence the importance of its careful decision.
It is not the credibility but the competency of the proposed *391witness which is now to be decided. The question is not whether what he may say under oath shall be believed by the jury—that is for a future stage of this case—but whether or not he is now mentally competent so far as to be allowed to testify, as a witness for the State, subject to the right of the accused to show to the jury by his cross-examination, or by the inconsistency of his testimony with the satisfactory evidence in the case, that he is unreliable and ununworty of credit, in whole or in part. His credibility is for the jury to determine, while his competency is a preliminary question for the exclusive decision of the Court.
The only evidence before us touching his competency is that furnished by the certificate of his admission to the State Hospital; by the sworn testimony of Dr. Burton who signed it, and of Dr. Hammond, a hospital medical attendant, and by our own personal examination of the unsworn witness, Waples, himself.
It appears from the testimony that Waples was admitted under the statute, to the State Hospital, June 5, 1895, upon the certificate of Doctors Burton and Marsh, of his then being, in their judgment, a proper subject for hospital care and treatment; that he was an inmate therein at the time of the alleged slaying of Pisa, on October 5, 1895, and that he was dismissed therefrom—though not formally discharged—on November 28, about three weeks thereafter.
It is now well settled that every person, tendered as a witness is, as a general rule, presumed to be sane and competent to testify before the jury, until the contrary is shown to the satisfaction of the Court. Therefore, in this instance, the onus is upon the accused to show not only that Waples is insane, but that his insanity is of such a nature and extent as to render him mentally incompetent in respect to relating to this jury the facts of said homicide which he witnessed at the time of their occurrence, and also in respect to now comprehending the nature and obligation of an oath.
Formerly insanity was very imperfectly understood, and, consequently, according to the earlier common law doctrine, every insane person was deemed to be wholly and absolutely non compos *392mentis and incompetent to testify as a witness. But, in more recent times, the Court's, keeping pace with the progress of science and philanthropy, have greatly relaxed the ancient rigor of the common law in respect to the insane, and have materially modified the former strictness of the rule regarding their incompetency as witnesses.
The modern doctrine was formally adopted and announced, in England, in 1851, in Regina vs. Hill, 2 Den. Cr. Cas. 254, 6 Br. C.C. 255. In 1882 this doctrine was approved and declared by the Supreme Court of the United States in Dist. of Columbia vs. Armes, 107 U. S. 519, 526, as follows: “It is undoubtedly true that a lunatic or insane person may, from the condition of his mind, not be a competent witness. His incompetency on that ground, like incompetency for any other cause, must be passed upon by the Court, and to aid its judgment, evidence of his condition is admissible.
But lunacy or insanity assumes so many forms, and is so often partial in its extent, being frequently confined to particular subjects, whilst there is full intelligence on others, that the power of the Court is to be exercised with the greatest caution. The books are full of cases where persons showing mental derangement on some subjects evince a high degree of intelligence and wisdom on others The existence of partial insanity does not affect individuals, so affected, in the transaction of business on all subjects, nor from giving a perfectly accurate and lucid statement of what they have seen or heard.” * * * “ The general rule, therefore, is that a lunatic or person affected with insanity is admissible as a witness if he háve sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the Court upon examination of the party himself and any competent witnesses who can speak to the nature and extent of his insanity.”
This view has also been adopted by various State Courts of last resort and by text writers of the highest authority, and may now *393be regarded as firmly established in both this country and in England. Coleman vs. Commonwealth, 25 Gratt. 865; Holcomb vs. Holcomb, 28 Conn. 177; 2 Taylor, Ev. § 1875; Wharton, Cr. Ev. §§ 370-373.
In view of the law as thus established we, on our side of the Court, do not consider that it can justly be held that the defence, by the evidence of said certificate of admission, and the testimony of Dr. Burton and Dr. Hammond, especially when taken in connection with Waples’ satisfactory personal examination by the Court, have satisfactorily proven that, either at the time of said homicide, or at this hearing before us, Waples’ insanity was or is of such a nature and extent that he is now mentally incapable of apprehending the nature and obligation of an oath and of giving a correct or reasonable account of the facts of that fatal occurrence.
The claim that the certificate itself affords a prima facie presumption of insanity to that extent is not warranted by either the purpose of the statute or the tenor of the certificate. The design of both is merely to provide for the admission of proper cases for care and treatment in this public hospital and to exclude all others. •In purpose or effect it never was the Legislative design to pass upon either the competency of a witness or the responsibility of one charged with crime. The statute uses the word “ insane ” not in the ancient restricted sense but in the modem general and broad sense of insanity—embracing various forms and degrees of mental disease and derangement from total to partial insanity, and from whatsoever cause. If this interpretation be not sound then the beneficent and reasonable purpose of the statute will be defeated, .and many really proper and deserving patients who are not totally demented, or absolutely incompetent or irresponsible mentally, must either be now put out, or hereafter kept out of the State Hospital. Hence, since insanity, as used in the certificate, may mean any form or degree of mental derangement—greater or less—which may, in the statutory contemplation, be proper for care and treatment in the hospital, it follows that said certificate does not neces*394sarily warrant the presumption that the patient named therein is mentally incompetent to testify in any case.
Therefore additional evidence is necessary to establish such incompetency. The only additional evidence offered by the defence for this purpose is the testimony of Dr. Burton and Dr. Hammond.
Dr. Burton has testified, in substance, that he does not think Waples was competent to testify to what occurred in his presence on June 5 last; as also has Dr. Hammond that he does not think that reliance could be placed on Waples’ memory and judgment during the time he was an inmate of the hospital.
From these opinions we are asked to infer that Waples is not competent to testify respecting the facts surrounding the alleged slaying of Pisa on October 5 last. But as we, on our side of the Court, do not consider that these opinions are warranted by the facts before us, we cannot so conclude.
Both Dr. Burton and Dr. Hammond have been examined as medical experts. The value of expert testimony depends on the impartiality, learning, experience and judgment of the expert in respect to the subject of investigation. The Court should.carefully consider the expert’s means of knowledge and the reasons he assigns for the opinion he has given, and give or withhold credence to his. testimony as they may find his qualifications sufficient, and his reasons satisfactory, or otherwise. The testimony of experts is to be considered like any other testimony, and is to be tried by the same ■ tests and receive just so much credit and weight as the Court may deem it entitled to, viewed in connection with all the evidence before it.
In the present instance Dr. Burton has testified that he is not. now an expert in mental diseases, and also that he has never examined Waples since he signed the certificate for his admission to the State Hospital. The fact is that he never examined him with respect to • his competency as a witness, but solely for the purpose of determining whether or not he was a proper subject for care and treatment. in that institution. Nor did Dr. Hammond ever examine Waples *395with any particular reference to his mental competency as a witness.. In his testimony he has expressly admitted that he has known nothing of him since he left the hospital, and has no personal knowledge of his present mental condition.
Dr. Burton’s testimony clearly discloses that his opinion of Waples’ mental condition was largely based upon information derived from his family and others who are not brought here to testify under oath and subject to the test of cross-examination. His examination of Waples was confined to three visits all made within ten days. Upon his first and second visits he was unable to certify that he was a proper subject for admission to the hospital. Upon his third visit he found him distracted by paroxysms of pain in the head, considered him deranged, possibly, as he supposed, by nocturnal epileptic fits—of which he had no proof or information however—and thereupon determined that he was a proper patient for the hospital, and signed the required certificate.
The only manifestations of Waples’ insanity, mentioned by Dr. Burton as grounds for his opinion of his incompetency as a witness, were violence and neglect of business after the paroxysms of pain in his head, complaints of a conspiracy by others to injure him, and Dr. Burton’s own mere conjecture of nocturnal fits of epilepsy. But the violence and neglect of business might be the natural result of his paroxysms of pain. The conspiracy was explained in the course of Waples’ examination before us, during which it appeared that he had, a few days before Dr. Burton’s first visit to him, been temporarily in custody on a criminal charge. Lastly, Dr. Burton’s theory of nocturnal epilepsy seems to have been absolutely unfounded, as there is no proof from Dr. Hammond, or any one in or out of the hospital, that Waples ever suffered therefrom either there or elsewhere. On the contrary, Waples has stated, in his examination here, that, when a young man, he suffered from a sunstroke; that occasionally since, he has suffered extremely with neuralgia of the head when exposed to the sun, and that the day before Dr. Burton’s third visit, whilst working in the hot sun, he *396was seriously affected and was suffering acutely therefrom when the Doctor examined him and concluded to give the certificate.
The true theory, therefore, probably is that Waples’ mind was at such times, temporarily disordered by these occasional recurrences of pain, resulting originally from sunstroke. But this description of insanity, or “ mental disturbance ” as Dr. Burton termed it, cannot be presumed to be permanent and to continue until the contrary be shown. Hix vs. Whittemore, 4 Metc. 545-47.
The only manifestations of Waples’ “ primary dementia,” or of his mental incompetency to testify, detailed by Dr. Hammond in support of his opinions, were that when Waples firsit entered the hospital he “seemed to be depressed,” would “sit around and not talk to anybody scarcely,” and “ did not want or care to see his brother,” who was then sick in the hospital.
These are certainly slight grounds for the support of such opinions. Dr. Hammond failed to show any instances, during Waples’ stay at the hospital, of the violence, nocturnal fits of epilepsy, or conspiracy vagaries upon which Dr. Burton had mainly based his opinion of his insanity and incompetency as a witness.
The fact that Dr. Hammond virtually discharged Waples from the hospital so soon after the homicide, clearly imports that he was practically restored, and reasonably warrants the inference that he was then, at the time of that occurrence, mentally competent to observe and relate the facts attending it. For it is highly improbable that he would have been guilty of the grossly culpable, and possibly criminal, negligence of releasing an inmate so insane as not to know, when at large, what he and those about him were doing.
Opposed to this insufficient evidence of his incompetency as a witness, is the very satisfactory result of the preliminary examination before us of Waples himself. Subjected as he was not only to examination by ourselves but by the counsel on both sides, pursuant to the established practice in both this country and England, he betrayed no indication of any form or degree of insanity—much less of incompetency to testify in this cause.
*397He not only showed that he comprehended the nature and obligation of an oath but, in appearance, manner, clearness, coherence and precision of expression, he proved to be a very superior witness. He promptly apprehended and answered every question and gave minute details with calmness and accuracy. He stated the day and hour, and with whom, he first went to the State Hospital ; when and where he met Dr. Hammond and Dr. Hancker there, and the day and hour, and with whom, he left there and returned to his family. And although both doctors were then present before us, they have not undertaken to contradict these statements which show that when he both entered and left the hospital he was perfectly competent to testify.
In view of these and the other facts I have detailed, and of the law applicable to this question, it seems indubitable that Waples is a competent witness and should be admitted to testify for the State in this case.
Marvel J., concurred in this opinion.
Lore, C. J.The Court being equally divided, the witness i& admitted to testify.
E. C. Hardesty, the Court stenographer, was called as a witness, was asked by the counsel for the prisoner whether Oakes (another witness) did not make certain statements to the Attorney General, in his presence, when the Attorney General was engaged with Oakes in preparing the case for prosecution.
White, Attorney General, objected, upon the ground that Mr. Hardesty was acting as his private stenographer at the time, assisting in the preparation of the case for trial.
Grubb, J.The defense proposed to show by Mr. Hardesty, (who was then acting as the private stenographer of the Attorney General) for the purpose of contradicting the witness Thomas Oakes, what that witnesss stated to the Attorney General when the-*398latter was engaged with said witness in preparing this case for prosecution. The law will not permit this. The Attorney General •could not be required to disclose facts coming to his knowledge for the use of the State in its prosecution of the accused; nor can his private amanuensis or clerk, as Mr. Hardesty then was. To do so would be prejudicial to the public interest and would in many cases -defeat the ends of public justice.
When the witness, Thomas Oakes, against objection by the State, was permitted, for the purpose of laying a ground for contradicting him, to state what he had said on this occasion to the Attorney General, in order to aid him in preparing for the prosecution of this case, I considered that the ruling of the Court was erroneous. 'In public prosecutions, witnesses for the State and those who give information to the prosecuting officer will not be permitted to disclose whether or not they have given information to such officer. Such communications are regarded as secrets of State, ■or matters, the disclosure of which would be prejudicial to the public interests. They are therefore protected and all evidence thereof excluded from motives of public policy.
To allow the said witness to state that he had made' a communication to the Attorney General respecting this prosecution, for the purpose of laying a ground for his subsequent contradiction by now calling Mr. Hardesty to the stand, was then as improper as it is now futile.
Lore, C. J. The objection is sustained.
Lore, C. J.,(charging the Jury.)
It is your duty to determine under the proof in this case, whether the prisoners are guilty of murder in the second degree as ■charged in the indictment; or of manslaughter, of which they may be convicted under the statute if the evidence shall warrant; or ,not guilty.
The grades of homicide applicable to this case are three: *399Murder in the second degree, manslaughter and excusable homicide.
Murder of the second degree is where a man kills another, without any, or without any considerable provocation, when the killing is done, or the mortal wound is inflicted with a deadly weapon, or arises from any unlawful act of violence, from which the law raises the presumption of malice. Malice is the necessary ingredient, indeed the test of murder. Unless from the facts in this case malice is proved beyond a reasonable doubt, you may not convict of murder in the second degree.
Manslaughter is the killing of a human being without malice, but under such circumstances as cannot render it wholly innocent, or excusable or justifiable in law. When the killing is done in the sudden transport of passion in the heat of blood, the law concedes that the act may be incident to the weakness and infirmity of our natures, and thus negatives implied malice, which is essential to the crime of murder in the second degree.
Excusable homicide may arise either from misadventure or in self defence, and when proved entitles the accused to a verdict of not guilty. Excusable homicide by misadventure, is the accidental killing of another when the slayer is doing a lawful act, unaccompanied by any criminally, careless or reckless conduct.
Under the statutes of this State ie Every person who shall abet, procure, command or counsel any other person, or persons, to commit any crime, or misdemeanor, shall be deemed an accomplice and equally criminal as the principal offender.” Where one is charged as an accomplice, in order to convict, it must be shown beyond a reasonable doubt that he was present feloniously and maliciously aiding and abetting, or counselling the killing of the deceased. If so present aiding and abetting, the act of one is the act of all, whichever may give the mortal wound, and all are alike guilty.
Let us now apply these rules of law to the case in hand.
It must be borne in mind that the deceased was one of that class of poor unfortunates, who in the providence of God are deprived of reason; some temporarily, some permanently. Unable *400to control themselves and manage their property, they are thrown entirely upon the mercy of their friends or the public. In this case the deceased was one of the wards of the State. Their pitiful helplessness inspires every manly heart with commiseration and sympathy. The State having undertaken their charge, should see to it that their treatment is controlled by enlightened and humane regulations; their comfort cared for, and that skilful and merciful attendants shall be placed in charge of them. It should be remembered, however, that while insanity is sometimes quiet and harmless in its developments, that at other times it is active and violent; that in the management of such an asylum, so much force must be used in each particular case as may be necessary to enforce and maintain wholesome discipline and sanitary regulations. The law will not measure with extreme nicety or exact calculation, just how much force the attendants may use, provided he acts reasionably and without intentional cruelty or viciousness. If you were to bind the hands of the attendant by any such rule, his life might be in the unreasoning caprice of a violent maniac, and the insane practically govern the institution.
The care of the insane is at best no pleasant employment. It is our duty to protect these demented patients, by the closest scrutiny, and to punish wilful or careless cruelty; but it is equally our duty to protect the attendants in the discharge of their duty from unwarrented interference and reflections and uphold them in the maintenance of reasonable rules. This is absolutely necessary for the proper management of such institutions.
On the fifth of October, Brown, Swan and Lynch were lawfully engaged in bathing Pisa. They had a right to take him to the bath tub and to give him a bath. They had a right to use all such force as was reasonably necessary to effect that purpose. If you believe from the evidence in this case, they used no more force than was necessary, considering Pisa’s strength, resistance and known disposition ; then they were within the line of their duty and you should acquit them. Where death results under such circumstances, it is misadventure and no guilt may attach to the pris*401oners. In like manner you should acquit, if Pisa’s death resulted from his own violence or fault.
If, however, they with criminal carelessness or recklessness used more force than was necessary, but without malice, it would be manslaughter. If the force used was so grossly reckless as necessarily to raise the presumption of malice, it would be murder in the second degree.
The prisoners are clothed by the law with the presumption of innocence. It is therefore the duty of the State to prove every material element of the crime charged beyond a reasonable doubt. If you entertain a reasonable doubt on any material point, you must acquit.
To convict of murder of the second degree you must be satisfied that death resulted from the violence of the prisoners, and that it was maliciously inflicted.
To convict of manslaughter you must be satisfied that death resulted from such violence, and that it was unlawfully inflicted without malice.
It is now for you to say of what crime these men are guilty, if guilty at all.
In determining this, you are to depend entirely upon the testimony given in this Court House from that witness stand, and must not consider any other sources of information whatever; You must divorce your minds absolutely from all sympathy, from all sensational reports, if they have come to you, from any source or at any time. Under the solemn sanction of your oaths, you stand between the State and these prisoners, sworn to consider only the evidence that has come to you under the statements of witnesses here produced and sworn, whom you have seen and heard, and whose reliability you must determine in reaching your verdict. By that, and by that alone, you must be governed.
Wherever there is doubt, where evidence is nicely balanced or conflicting, good character, so far as proved, must enure to acquittal.
You may acquit all or any one of the prisoners; in like man*402ner you may convict all or any one of them, as in your best judgment, under the law and evidence, you may determine. Your duty is to acquit the innocent, and to convict the guilty.
The jury having retired to their room on Saturday afternoon, remained out until Sunday morning (the Court having taken a recess without adjournment), when they appeared in j Court and desired to render a verdict.
After due consideration by the Court, it was unanimously held that the verdict merely might be taken by the clerk and the jury discharged, which was accordingly done, without further proceedings in the case on that day, (Feb. 16.)
Verdict,—Not guilty as to Michael Lynch, guilty of manslaughter as to Daniel Brown and John T. Swan.
At the assembling of the Court on Monday, February 17, the following order was made.
Lore, C. J.The verdict of the jury was taken by the clerk yesterday, by consent, and now it is ordered by the Court that the verdict be formally entered.
Daniel Brown and John J. Swan, the defendants, by Andrew C. Gray aud Herbert H. Ward, their counsel, moved for a new trial, which motion failed, the Court being equally divided. They then moved for arrest of judgment.
The reasons assigned áre stated verbatim in the opinion of Grubb, J., infra.
Ward and A. C. Gray, in support of the motion.
The statutes, of this State, relating to the basis for this motion, are as follows:
“ Whenever the Judges of said Court shall issue a precept for holding a Court of Oyer and Terminer, they may omit any direction to the Sheriff to summon a Grand Jury, if indictment have been found in the Court of General Sessions oí the Peace and Jail De*403livery, in the cases which shall occasion the issuing such precepts, and if there shall be no person in jail, or on bail, charged with a capital offense and not indicted, or when from other cause, the said Judges shall deem the summoning of such Grand Jury unnecessary.” Rev. Code (1893) ch. 83 § 3,
The Grand Jurors for the year, drawn as aforesaid, shall be summoned and returned to attend, as Grand Jurors, at any Court of Oyer and Terminer, when the precept for holding such Court directs a Grand Jury to be summond.” Rev. Code (1893) ch. 109 §§ 10, 11.
“ The Court of General Sessions of the Peace and Jail Delivery, within the several counties, shall have jurisdiction of all crimes and offenses not within the jurisdiction of the Court of Oyer and Terminer, except offenses committed by slaves and cognizable before a Justice or Justices of the Peace; and shall have cognizance of all crimes and offenses within the jurisdiction of the Court of Oyer and Terminer, so far that indictments therefor may be found in said Court; and may issue process for the arrest of persons so indicted, and commit, or hold such persons to bail; but said indictments shall be removed into the Court of Oyer and Terminer for trial, or other proceedings, thereupon.” Id, ch. 94 § 1. ■
By the record of said Court of Oyer and Terminer and of this cause, it appears that the precept of the Judges of said Court for holding the Court of Oyer and Terminer by which said defendants were tried, and in which the verdict against them was rendered, did not direct any Grand Jury to be summoned; that the said indictment against them was found in the said Court of General Sessions of the Peace and Jail delivery, and was never removed therefrom into the Court of Oyer and Terminer for trial or other-proceedings thereon.
The provisions of the Statutes of this State, relating to the summoning of a Grand Jury for the Court of Oyer and Terminer substantially follow the common law practice. Chitty, Grim. Law. *310; 2 Hale P. C. 153, 154.
The Statutes of the State of Delaware relating to this motion *404establish the following propositions. There must either be an indictment found in the Court of General Sessions of the Peace and Jail Delivery, afterwards removed by certiorari to the Court of Oyer and Terminer, or an indictment found by a Grand Jury directed to be summoned in the precept for the Court of Oyer and Terminer.
JSTo Grand Jury can be lawfully summoned for the Court of Oyer and Terminer by the Sheriff, except pursuant to a direction contained in the precept of the Court for the said Court of Oyer and Terminer.
If the Sheriff should summon a Grand Jury to the Court of Oyer and Terminer, without a proper precept, to that end issued by the Court and contained in the precept for the Court of Oyer and Terminer, his action in so doing is a nullity.
The following authorities bear out the contentions set forth above: Bishop, Crim. Prac. §§ 888, 889 ; Thompson & Merriam, Juries § 551 ; Finley vs. State, 61 Ala. 201; Jackson vs. Com., 13 Grat. 795 ; State vs. Hardin, 2 Rich. L. 533 ; State vs. Symonds, 36 Me. 128.
R. G. White, Attorney-General, contended that the objection taken was to a mere irregularity of which advantage must have been taken by plea in abatement. By pleading over and going to trial it was waived and by verdict it was cured. United States vs. Gale, 109 U. S. 55 State vs. Carver, 49 Me. 588 ; Robinson’s Case, 2 Park. Cr. Rep. 235 ; State vs. Stewart, 7 W. Va. 731; Seaborn’s Case, 4 Dev. 305.
Grubb, J.At the present session of this Court of Oyer and Terminer, Daniel Brown and John J. Swan were indicted by a Grand Jury of this Court of murder of the second degree and, after trial here by a petit jury of this Court, were found guilty of manslaughter. Thereupon they moved for a new trial upon the ground, inter alia, that this verdict was unwarranted by the law and the evidence. This Court being equally divided on this motion it *405failed and the new trial was refused. Whereupon the present motion for arrest of judgment was made upon the following grounds:
“ 1. That it appears by the record of the Court of Oyer and Terminer and of said cause that the Court of Oyer and Terminer had no jurisdiction to try said cause.
2. That it appears by the record of said Court and said cause, that the Court of Oyer and Terminer had no jurisdiction to try the defendants in said cause, under the indictments therein, and had no jurisdiction to render judgment therein.
3. That it appears by the record of this Court and said cause, that the indictment in said cause was found by the Grand Jury in the Court of General Sessions of the Peace and Jail Delivery tor said State, and was never removed, by certiorari, or other process, into said Court of Oyer and Terminer, and that, therefore, under the statutes of said State, the proceedings before said Court in said cause were all coram nonjudice, and that the said Court hath no jurisdiction to pronounce judgment in said cause.”
It is unnecessary to consider or pass upon the third ground above stated. I have personally examined the record of this Court and find that it appears thereby that said indictment was found by the Grand Jury, sitting as the Grand Jury in and for this Court of Oyer and Terminer. This is also corroborated by the statements made to me by the clerk of this Court, and to us, in open Court, by the Attorney General.
In this State, jurisdiction of all capital offences, and of murder of the second degree and manslaughter, is vested by the laws of the State, pursuant to the Constitution, in the Court of Oyer and Terminer composed of the Chief Justice and the three Associate Judges of the State. Its decision is final, and not subject to writ of error or to appeal. It has no regular terms fixed by law, but sits whenever the Judges of said Court shall issue a precept for holding a Court of Oyer and Terminer.
They may include in the precept a direction to the Sheriff to summon a Grand Jury for any such Court, or they may omit it *406when the said Judges shall deem the summoning of such Grand Jury unnecessary. It is not absolutely obligatory upon the Judges to include in said precept any direction for summoning of a Grand Jury for a Court of Oyer and Terminer in any case: If they do
not deem this necessary, the Grand Jury in attendance upon the next regular term of the Court of General Sessions, which is composed of the Chief Justice and the two of the Judges who do not reside in the county wherein it is sitting, may find the indictment for any of said offences, which may thereupon be removed to the Court of Oyer and Terminer for trial.
Statutory provision is made that, in the spring of every year, Grand Jurors for a standing panel, to serve for the ensuing year, shall be selected from the county by the Levy Court, and drawn by the Prothonotary and Clerk of the Peace, who shall immediately deliver to the Sheriff of the county a correct list of the names thereof, etc. The statute also directs the Sheriff, upon receiving the said list, to summon in writing each of said persons, at least ten days before the next ensuing term of the Court of General Sessions for his county, to serve as the standing grand jurors for that year at the said Court. Similar statutory provision is also made for the selection, drawing and summoning of petit jurors to the Court of General Sessions, etc. Provision is also made that the Sheriff shall make return to the Court of the separate panels of the grand and petit jurors summoned by him.
The statute also provides that the standing panel of Grand Jurors for the year “shall be summond and returned to attend, as Grand Jurors, at any Court of Oyer and Terminer, when the precept for holding said Court directs a Grand Jury tobe summoned/’
The statute also provides that for any Court of Oyer and Terminer, special Petit Jurors shall, upon notice from the Sheriff1 to .the Prothonotary and Clerk of the Peace that such Court is to be held, be drawn, summoned and returned according to the provisions for the regular Petit Jurors.
So that whenever the Judges shall deem it necessary to summon a Grand Jury to attend upon a Court of Oyer and Terminer, *407they may also include in their precept designating the time for. holding such Court and directing the Sheriff to summon the special jurors, the further direction to summon the standing panel of Grand Jurors to attend therein. Whilst there is no statute expressly directing this course, or prescribing any particular form of precept, yet such has long been the general practice of this Court in such instances. But there is no enactment, expressly or by necessary implication, prohibiting this Court from modifying or entirely dispensing with this practice in any particular case if deemed necessary. Nor is there any enactment expressly declaring illegal, and its indictments void, any such standing Grand Jury actually summond and returned by the Sheriff, and serving in this Court. Without any precept of the Judges of this Court such Grand Jury would, under the statutes referred to, be in attendance upon the Court of General Sessions wherein an indictment for an offense like the present could be found and certified into this Court wherein the same Judges who composed the said Court of General Sessions, under our judicial system, constitute a three-fourths majority.
As the general practice throughout the State has been to have this Court called to meet at the regular term of the Court of General Sessions, when a Court of Oyer and Terminer is necessary for the trial of any indictment, it is practically immaterial whether a Grand Jury for this Court is ordered or not. For if not so ordered the indictment will be just as promptly found in, and eertioraried for trial here from the Court of General Sessions, and therefore the Constitutional right of the accused to have a speedy and public trial by an impartial jury will not, substantially be injuriously affected. Consequently it may not be of material importance whether or not the practice of including in the precept the direction to the Sheriff for summoning the standing Grand Jury to attend this Court, be modified or entirely dispensed with in any particular case, where their summoning, return and attendance are actually secured in a regular manner otherwise as in the present instance.
It is the statute and not the precept which makes the standing panel the Grand Jurors of this Court, when having been legally *408selected and drawn, they are actually summoned and returned and serving here. The said practice therefore is merely a convenient and reasonably certain mode of notifying the Sheriff and having their attendance when needed. Presumably the object of the practice as well as of our statutes which recognize it, was to secure the attendance of the Grand Jury in this Court with promptness and certainty, when it was deemed necesary to have it here. But if by mistake or accident, it should be ommittéd in any instance at the time of preparing the precept, it might save serious delay and detriment not only to the prisoner but to the public, if notice to the Sheriff could be given with the approval of the Court in some other way, whereby the timely summoning and attending of such Grand Jury could be surely and actually secured. Yet, if the contrary view is adopted, then, in such instances, the object of the practice instead of being effected would be defeated.
The general ground, as the argument disclosed, upon which the defense have based their motion in arrest of judgment in this case, is that this indictment was not found by a legal Grand Jury of this Court of Oyer and Terminer, because, as they allege, the Grand Jury which found it in this Court was not lawfully summoned by the Sheriff to attend as the Grand Jury of this Court, and therefore that this Court can not lawfully try, or render judgment against them on the indictment under which the Petit Jury have found them guilty of manslaughter.
They contend that said Grand Jury was illegally summoned by the Sheriff to attend this Court of Oyer and Terminer because, as they allege, no proper and lawful precept for summoning said Grand Jury was made and delivered to that officer.
It is not claimed that these grand jurors were not selected by the Levy Court, drawn by the Prothonotary and Clerk of the Peace, and otherwise qualified in all respects, as prescribed by law. Nor is it contended that they were not duly summoned by the Sheriff; nor shown that they did not actually appear in this Court pursuant to his summons and find said indictment. Neither is it denied that the Sheriff received a lawful precept, duly signed by all the Judges *409■of this Court, attested by the Clerk, and under the seal of this Court, appointing the time for holding of the present Court of •Oyer and Terminer, and commanding him to summon thereto the requisite special Petit Jurors, nor that there was written upon the face of said precept, on the margin thereof, the words :—“ Summon the Grand Jurors for the Court of Oyer and Terminer.”
The sole objection made to the validity of this precept is that the said portion thereof respecting the summoning of said Grand Jurors was irregular and unauthorized. That the holding of this Court and the summoning of the petit jurors was lawful in all respects is undisputed. That this Court has jurisdiction under the Constitution and statutes of this State, of the offense charged, and also of the persons of the prisoners by virtue of their lawful arrest and commitment for trial here, is unquestionable. Hence the only objection to the validity of the indictment in this case is that the Grand Jury was illegally summoned because of the alleged irregularity and illegality of that portion of the precept respecting the •direction to the Sheriff to summon said Grand Jurors.
Bnt for the purpose of disposing of the present motion in arrest of judgment, it is not necessary to consider and determine whether or not the precept was, in whole or part, illegal and invalid ; nor whether or not the Grand Jury was illegally summoned by the Sheriff. Nor is it material to inquire whether or not the alleged irregularity or invalidity of the precept, in any respect, is a matter appearing of record. Because it is now firmly settled by authoritative adjudications in both this country and England, that by pleading not guilty to an indictment and going to trial without making any objection to the qualification of Grand Jurors, or the mode of summoning or impaneling them, the objection is waived. And this doctrine of waiver applies as well to cases where such objection appears of record. All such objections, where no statute makes the proceedings utterly void should be taken in limine, either by challenge, by motion to quash, or by plea in abatement. It is the prevailing rule that it is too late after a verdict to object to the -competency of the Grand Jurors by whom the indictment was *410found, or to the mode of summoning or impanelling them. Robinson’s case, 2 Park. Cr. Rep. 235, 308, 311; State vs. Carver, 49 Me. 588, 593-4; 33 Am. St. Rep. 626-627; State vs. Stewart, 7 W. Va. 731; 77. S. vs. Gale, 109 U. S. 55-74. Robinson’s case, supra, is especially applicable to the motion before us. There no precept for summoning the grand jury had been issued by the District Attorney to the Sheriff as the law required, though the Sheriff summoned them in the usual way, as he did in this case. But the Supreme Court of New York nevertheless held, after argument by able counsel, that this omission did not affect the substantial rights of the prisoner, and that the objection could not be raised after trial and conviction. Many authorities were referred to in the opinion of the Court, and this general statement was then made : “ It seems to be well settled in most of the States that an objection to the qualification of grand jurors, or to the mode of summoning or impanelling them, must be made by a motion to quash or by a plea in abatement before pleading in bar.” This announcement of the law in Robinson’s case was afterwards quoted with marked approval by Mr. Justice Bradley, speaking for the Supreme Court of the United States, in United States vs. Gale, 109 U. S. 65-74, decided in 1883. It was equally relied on and approved in the leading case of State vs. Carver, 49 Me. 594, and has since been generally followed in this country. In the case last cited, after a verdict of guilty, there was a motion in arrest of judgment on the ground that it appeared by the venires that at least one of the persons acting on the grand jury which found the indictment was not legally drawn as a grand juror, on account of defects in the manner of notifying the town meetings for the draft of said jurors, etc., and therefore it was not a legal grand jury and consequently had no authority to find the indictment in question.
It was contended that, as the objection appeared of record by the return upon one of the venires, the motion in arrest of judgment should be sustained. The motion being overruled by the trial Court, the Supreme Court, on exceptions taken, sustained the decision below. It held, first, that this was not such an objection *411appearing of record as could be sustained on a motion in arrest of judgment, and, secondly, that, by pleading generally to the indictment, the defendant admits its genuineness, and waives all matters that should have been pleaded in abatement. The Court say, “ the decisions to this point, both in England and in this country, are numerous. But it is urged that such cases are to be distinguished from the one at bar, because here the defendents deny that there is any indictment, on the ground that there was no legal grand jury. The question here presented has often been raised in this country, and it has uniformly been held that it is too late, after a verdict, to object to the competency of the grand jurors by whom the indictment was found: or to the mode of summoning or impanelling them. All such objections must be pleaded in abatement. The Attorney General has cited other cases where the same doctrine.is held. And we are not aware of any cases where it has been called in question.”
In State vs. Stewart, 7 W. Va. 731, a statute provided that before any prisoner is tried for felony in a Superior Court he shall be examined before an inferior Court unless such examination be waived by his consent entered of record in such Superior Court. In this case the defendant did not make any motion to quash the indictment or do any other act before trial or verdict by which the attention of the Court would be directed to the fact as to whether he had been examined by the county Court touching said charge. But even in such a case, where the statute itself made such examination a prerequisite to the jurisdiction of the Superior Court to try the prisoner, it was nevertheless declared by the Supreme Court of Appeals, in that State, that if a defendant indicted for felony desired to claim the benefit of the provisions of said act, he should da so certainly before verdict of guilty, and, perhaps, before the jury to try the cause are selected, impanelled and sworn. In the same case this Court cited with approval the case of Angel vs. Commonwealth, 2 Va. Cases 231, wherein the Court said, “ after verdict against the prisoner, he cannot move in arrest of judgment that he *412was not examined (under the act) for the felony of which he was indicted. The objection comes- too late.”
In United States vs. Gale, 109 U. S. 65-74, above cited, Mr. Justice Bradley in a most able and elaborate review of the authorities, English and American, conclusively establishes the correctness of the doctrine announced in Robinson’s case, as above stated. In this case, the Supreme Court of the United States was required to determine for the judges of the Circuit Court of the United States for the Northern District of Florida, whether or not a certain motion in arrest of judgment before them could be sustained. The ground urged in arrest of the judgment was that four persons, otherwise competent, were excluded from the panel of jurors who found the indictment, under a provision of the United States Revised Statutes, which the defendant alleged to be unconstitutional. The exclusion of these persons for this cause appeared by an amendment of the record, made mine pro tune, showing what took place; but no objection was taken to the indictment or proceedings on that account until after a plea of not guilty, and a conviction, when the objection was first taken on motion in arrest of judgment.
In this case the Court, by Mr. Justice Bradley, says: “The question as to the constitutionality of the 820th section of the Revised Statutes, which disqualifies a person as a juror if he voluntarily took any part in the rebellion, is not an essential one in the case inasmuch as by pleading not guilty to the indictment and going to trial without making objection to the mode of selecting the grand jury,such objection was waived. The defendants should either have moved to quash the indictment or have pleaded in abatement, if they had no opportunity, or did not see fit, to challenge the array. This, we think, is the true doctrine, in cases where the objection does not go to the subversion of all the proceedings taken in impaneling and swearing the grand jury; but relates only to the qualification and disqualification of certain persons sworn upon the jury or excluded therefrom; or to mere irregularities in constituting *413the panel. We have no inexorable statute making the whole proceedings void for any such irregularity.”
Again the same Court say: “All ordinary objections based upon the disqualification of particular persons, or upon informalities in summoning or impaneling the jury, when no statute makes the proceeding utterly void, should be taken in limine, either by challenge, by motion to quash, or by plea in abatement. Neglecting to do this, the defendant should be deemed to have waived the irregularity. It would be trifling with justice, and would render criminal proceedings a farce, if such objections could be taken after verdict, even though the irregularity should appear in the record of the proceedings.” And further the Court, through Mr. Justice Bradley, declare: “ We think that the doctrine of waiver applies as well to cases where the objection appears of record as where it appears by averments ; and that it applies to all cases of objection to the qualifications of jurors, and to the mode of impaneling the jury; but does not apply to cases where the proceeding is wholly void by reason of some fundamental defect- or vice therein. In Seaborn’s case, 4 Dev. 305, it was held that after conviction of murder, it was too late to take advantage of an error in constituting the grand jury, though it appeared in the record.
It will thus be seen that the Supreme Court of the United States has approved and relied upon Robinson’s case, which held that the entire absence of the precept, although required by law, for summoning a grand jury, was an omission which did not affect the substantial rights of the prisoner, and which belonged to the class of objections that could not be raised after trial and conviction. As that case is substantially identical with that now before us, this convincing array of authority unquestionably warrants this Court in holding that the defendants have waived their objection to the grand jury and the indictment now in question. Therefore their motion in arrest of the judgment must be overruled.
Marvel, J., concurred.
*414Lore, C. J.In this case a motion was made in arrest of judgment, upon the ground that the indictment was not found before a grand jury summoned to the Court of Oyer and Terminer, and, not being so found, was not certified up into the Court of Oyer and Terminer.
By the statute in that behalf, a Court of Oyer and Terminer in this State only exists by virtue of the precept, which is the writ of command from the Judges to the Sheriff. There are no regular terms of the Court of Oyer and Terminer, and no term of the said Court can be held; without such precept as has been duly issued by order of the Judges of the Court. A precept in this case was duly issued. It contained, however, only the direction to make proclamation of the convening of the Court, and a direction to summon the petit jurors. There was in the body of the precept no order whatever to summon a grand jury for the Court of Oyer and Terminer. There is, however, an endorsement in red ink, upon the margin of the precept, in these words: “ Summon grand jury for Court of Oyer and Terminer.” This, however, is not in the body of the precept, and it is within the knowledge of this Court that it was not made by order of the Judges, but was a memorandum made by the clerk, of an order given by myself to him verbally, to see that the grand jury was summoned, and so direct the Sheriff
As the sessions of the Court exist only by virtue of the precept, and grand and petit jurors can only be summoned by authority of its express terms, it is manifest that there was no order of the Judges for summoning the grand jury, and that there was no grand jury summoned for the Court of Oyer and Terminer. This-goes to the existence of such a grand jury, and is not a matter of irregularity.
The indictment, therefore, being found by a grand jury which was duly summoned to the Court of General Sessions, and not having been certioraried up into the Court of Oyer and Terminer, the indictment was never legally before the last named Court. It follows, therefore, that the trial of the case in the Court of Oyer and *415Terminer was comm non judice, and in the opinion of Judge Cullen and myself, the trial was without warrant of law.
I desire, however, expressly to put on record, that no fault whatever attaches to the Attorney General or to his Deputy, Mr. Cooper, in this matter. The latter expressly called the attention of the Court to the usual custom of certioraring indictments into the Court of Oyer and Terminer, and he was informed by the Court that it was not necessary, as we then supposed the grand jury had been duly summoned to the Court of Oyer and Terminer. No fault whatever attaches to the Sheriff. He faithfully complied with the verbal orders given him. No fault attaches to any one of my three associates who sit with me. The fault is absolutely and exclusively my own, and I am unwilling that any responsibility in the matter shall rest elsewhere.
To constitute a legal grand jury in the Court of Oyer and Terminer, the order for its summons must be in the body of the precept. In fact, only a verbal order was given, not by the Judges, but by myself only, which was a nullity. Such order gave no authority to the Sheriff, and I had no authority to give it; but it grew out of the desire to save the trouble of certioraring indictments into the Court when we had authority to Constitute a Court of Oyer and Terminer in which indictments could be found in the first instance.
The grounds urged in arrest of judgment go to the existence of the grand jury, and not to regularity or irregularity in summoning.
It is idle, therefore, to speak of the irregular execution of a power, which power was never evoked and never existed.
We think the motion in arrest of judgment ought to prevail.