It is conceded in this case, that no precept was issued by the district attorney for summoning the grand jury, who found the bill of indictment against the prisoner. The district attorney has pleaded to the special assignment of error, that a precept for summoning the petit jury, by whom he was convicted was actually issued, and that the same is now on file in the office of the sheriff of the county. It appears, by the return of the clerk to the certiorari, which was issued to him upon an allegation of diminution, that no such precept has ever been returned to the office of the clerk of the court, and that none is on file.in this office. It is insisted by the counsel for the prisoner, that the mere issuing such precept is of no avail, but that it must be returned by the" sheriff'to the court, that it may be filed and become a part of the record, that the want of the precept and return in the record brought tip, is érror for which the judgment should be reversed.
I am inclined to the opinion, that this position is correct. The office of the writ of. error, is to bring up the record for the inspection of the appellate court, as well the judgment record as any of the out branches of the record, which are claimed to be defective.
The execution of the process of the court, can only appear by the return of the officer whose duty it is to execute it, and no action of the court, based upon the execution of such process can be regularly taken, until it shall appear by the records themselves that Such process has been duly executed.
Hence it follows, that the regularity of all the proceedings *157of the court should appear by the record itself, and, upon writ of error, if the appellate court upon an inspection of such record, finds any material defect in it, the judgment should be reversed.
It is not necessary to decide whether the Oyer and Terminer might not have allowed a return to have been made and filed nunc pro tunc. No such thing was in fact done, and we must pass upon the sufficiency of the record as it now is. We come back then to the question, whether the omission to issue jury process is a fatal error, for which the judgment of the Oyer and Terminer should be reversed.
. In regard to the precept for summoning the petit jury, the point has been directly adjudicated in this state, in the case of The People v. McKay, (18 J. R. 212.)
The prisoner in that case, had been convicted of murder at the Alleghany Oyer and Terminer. It was moved upon a re-, turn to a certiorari, showing that the precept for summoning the petit jury was without seal, and that no return had been made to it by the sheriff, that the judgment be arrested.
The inotipn was granted by the Court, Ch. J. Spencer, giving the opinion.
It will be seen by examining the statutes in force at that time, and comparing them with the Revised Statutes, that they were substantially the same so far as they affect the question under consideration. (See 2 R. L. 508, sec. 13, 24 to 30; 1 R. L. 328; sec. 11 and 19; 2 R. S. 206; sec. 37 and 38; 1 R. S. 339; sec. 15 and 16.)
Precisely, the same answers were made to the objection upon the argument in that case that were made upon this, to wit: that the jury were drawn and summoned pursuant to specific directions in the statute, and that a precept was therefore a mere matter of form. But the court in that case held the objection fatal, and arrested the judgment. The case was argued by very able counsel on both sides, and after careful deliberation, the decision, for aught that appears in the report, was made by the unanimous concurrence of all the members of that very able court. We should not, therefore, even if we *158doubted its correctness-, feel at liberty to overrule this decision; but we are satisfied that it is well sustained upon authority.
At common law, a precept to summon the jury was always necessary. (1 Chitty Crim. L. 505, 508.) The different Courts had different kinds of process, but in all the courts, process of some kind was absolutely essential. It was the authority under which the sheriff summoned the jury, and it was only upon the return of the process, that the court acquired jurisdiction to impannel the jury and try the cause. In some of the courts a special venire was necessary in each case, but before the justices of jail delivery, a general precept was issued upon which a jury of a given number were summoned, out of which a panel for the several • cases as they were tried, was awarded orally-, thus conforming somewhat to our own practice. (1 Chit. Crim. Law, 506.)
Our statute, so far from dispensing with this process, peremptorily directs -it to be issued by the district attorney of the county, at least twenty days,, before the time of holding any court of Oyer and Terminer, and in every such precept, the sheriff is commanded, among other things; “ to ¿summon the persons who shall have been drawn in his county pursuant to law, to serve as -grand and petit jurors at the said court, to appear thereat.” (2 R. S. 206, § 37, 38.) This precept is still, therefore, retained as the authority to the sheriff; and for disobedience to this, he may be attached ór otherwise made amenable for neglect of duty..
Upon the opening of the court, when proclamation is mudé for him to return the writs and precepts delivered to him, it is his duty, if he has not- before returned it, to return it theft. Those provisions for returning the jurors by officers of towns; and for drawing- the same by the 'county clerk and other officers, are made for securing the attendance of competent jurors, as well as for equalizing the burthen of jury duty among-all the competent citizens of the couhty, but they do not in any wise affect the necessity of vesting the sheriff with competent authority to summon them and-the court to impannel them. Similar provisions are contained in the English statutes, for' *159securing the attendance of competent jurors, and for equalizing the burthen of jury duty; but it was never supposed that such provision obviated the necessity of jury process. And a late English writer-, in speaking of jury process in civil actions, remarks “ that though the making otit the jury process, getting it duly returned and annexed to the record, is now little more than a form, it is a form, thé observance of which is so essential, 'that if it be neglected, there can be no valid trial of the cause.” (Smith on Jlciions at Lav), 125.)
Suppose the sheriff had entirely neglected to summon the jury, and that they had come together of their own accord, could a valid trial have been had in such a case? It seems to me very clear, that there could not have been a valid trial before such a jury, yet this récord furnishes no evidence that the jury were not thus impanneled in this case. It is said that the legislature has abolished jury process in courts of Sessions and in civil cases. But this fact, instead of affording an argument in favor of the right to disregard the statute requiring process to be issued for summoning jurors for courts of Oyer and Terminer, affords an argument on the other side. The fact that the legislature has retained it for the latter courts, while it has been abolished for the former, shows that the distinction was designed; and it is not for the courts to decide what the statute peremptorily enjoins may be dispensed with as a mere matter of form and as unnecessary. If the abolition of such process is found to work well in courts of Sessions and in civil cases, the legislature may hereafter extend it to all the courts; but until that shall be done by legislation, we must follow the well settled rules of law in relation to it.
That the defect is vital and constitutes error in the record, for which the judgment should be reversed, is settled by repeated adjudications, both in this country and in England.
In State v. Williams, (1 Rich. 188,) in. the Gourt'of Appeals of South Carolina, there was a motion in arrest of judgment, On the ground that the grand jury who found the bill, and the petit jury who convicted the prisoner, were summoned by writs of venire without the seal of the court. The motion was *160granted, and the judgment in this, as well as in three other cases in which the defendants had been indicted and tried by the same jurors, was arrested.
In a previous case, The State v. Dazin, (1 Spears, 211,) the prisoner was convicted of murder, and the same objection was taken, with the same result. I have not had access to the statutes of that state, but from what was said in the case of the State v. Crosby, (2 Harper, 90,) they provided for drawing the jury somewhat in the manner provided by the statutes of this state. It is said in that case, that the important object of obtain-, ing an impartial jury is secured by the manner of drawing them, which is not affected or controlled in the least by the manner of summoning them; that the writ of venire was the authority of the sheriff, and, as the process of the court, merely secured the attendance of the jurors. (See also State v. McElmundy, 1 St. Tr. 33.)
The case of Rogers v. Smith and another, in the King’s Bench, (1 Ad. & El. 772,) was a civil case, but particularly applicable to the point now in question. For it would scarcely be contended that less regard should be paid to errors of this kind in criminal than,, in civil cases, especially when life is involved. That was a writ of error coram nobis, and the error assigned was that there “ was no return of the distringas juratores by the sheriff or other officer therein mentioned, nor any panel of the jurors returned and annexed thereto.” In England, in the Queen’s Bench, there are two writs issued; the venire facias, which is made returnable at the court at Westminster, and the distringas juratores, which is made returnable at court on a day therein named, unless sooner, &e.
The former of these writs the sheriff does not' execute, but makes out a panel of the jurors and returns the names, (Smith on Actions at Law, p. 119 ) TJpon the issuing of the distringas to the sheriff, he summons the jurors whose names he has returned on the panel, and returns the same to the court with the panel annexed. In the case above cited, the error alleged was that the sheriff had made no return to the distringas, nor annexed thereto a panel of the jurors.
*161The Court of Queeii’s.-Bench reversed the judgment. Lord Denman, delivered the opinion of the court, and held that at common law, the want of a return or a defective return was error. (See also Cro. Eliz, 311; ib. 587; 3 Buls. 220; Cro. El. 509; 1 Roll. 295; Hob. 130; Cro. Jac. 188.)
It appears from the remarks of the author in -Smith on Actions at Law, above cited, that the issuing of these writs is mere matter of form. He says, “ in fact they are now little more than forms, for by 6 Geo. 4, C. 50, sec. 15, the sheriff is obliged to return the same panel of jurors for the trial of all common jury causes, instead of being allowed as he anciently was, to return any duly qualified persons he pleased; so that the opportunity for investigation is now given in another way, and any body may know long before the day of trial, .the names of the jury specified in this panel.” It will also be noticed by examination, that the English statute of amendments is much broader and more extensive than our statute of amendments, applicable to criminal courts. (See also Beekman v. Rye, Cro. Eliz, 587; Rowland Case, 5 Rep. 416; 3 Buls. 220; 5 T. R. 462.)
Upon the defect in the want of a venire for summoning the grand jury, it is not necessary to pass. Judge Nelson held .in the Circuit Court of the United States, in the Jerry Rescue ' Cases, that our statute-which takes away the right of challenge to the array of- grand juries, had, by implication, taken away the right to raise the objection in any form. If an. objection exists to the summoning of the-jury, which, previous to our revised statutes, would be a. good objection on a motion to quash, or upon a writ of error, and which might also be-a good objection as a ground of challenge to the array, I do not clearly perceive how the taking away the rights of challenge to -the array for such , cause, would necessarily deprive the party of his other common law remedies.
It seems to me it would rather strengthen his right to avail himself of his other remedies. The right of trial by jury, as well as the exemption from being-held to answer for crime, unless upon presentment of a grand jury, is the boast of the *162common law, and is guarantied by the fundamental law of both the state and national governments.
That these juries should be composed of impartial and competent men, has been the constant care of both legislatures and courts during the whole history of the. common law. And the citizen has not been compelled to rely alone upon the fidelity of public officers to secure this right, but he has always been allowed to watch the proceedings himself.
He has always been allowed the largest liberty in availing himself of any defect in the proceedings, or in any want of conformity to the prescribed forms of procedure. It is true that the legislature have removed many of these old land marks of the common law, have abolished many of those writs and processes, which were once deemed essential. Yet the courts are to follow the legislature and not anticipate its action. They should not by judicial decision, attempt to abolish those remaining requirements of the common law which the legislature have thought best to leave unmolested.
Suppose in drawing a grand jury under our statute, the clerk or some one else, should so arrange the ballots in the box that the names of persons hostile to the accused would most certainly be drawn. This would not under our statute be a cause of challenge to the array.
But is there no remedy for the accused in such easel The right of challenge to the grand jury is practically of little importance, for in many cases the accused has no knowledge that any proceedings are pending against him, until the indictment is found. But the right to object to the proceedings after the indictment is found, is one of the most important rights secured to the citizen..
The fair inference it seems to me to be drawn from the consideration of the whole subject, is, that the legislature took away the right of challenge to the array, for the reason that it was of no practical benefit, designing to leave all the other common iaw rights of the accused unimpaired. But it is not necessary in this case to place our decision on the ground of the want.of process to summon the grand jury.
*163We are satisfied that the objection, in regard to the want of process for summoning the petit jury was fatal, and the judgment of the Oyer and Terminer, must be reversed.
We will award a venire de novo, but we think the safer course for the district attorney would be to procure a new indictment to be found.
Gridley and W. F. Allen, JJ., concurred. Hubbard, J., dissented.
Judgment reversed.