Duke v. State

20 Ohio St. (N.S.) 225

Opinion

By the Court:

This application must be overruled. We are of opinion that the demurrer to the plea was properly sustained. It does not appear from the plea that an oath or affirmation was not administered to each of the witnesses by the clerk before they were examined by the grand jury. If they were so sworn or affirmed the vital provision of section 16 of the code of criminal procedure was observed. While all the provisions of this section should be followed in practice, because prescribed, yet we are not prepared to say that where the witness has been sworn or affirmed by the clerk before he goes before the grand jury for examination, the indictment found upon his testimony is not lawfully found because the court has not certified that such oath or affirmation had been administered by the clerk, or because such certificate, if made, has not been delivered to the witness and by him presented to the foreman of the grand jury, when he is admitted for examination.

Writ refused.