By the court,
Mtjndy, J.
On tbe 8tb of January, 1848, it being an adjourned day of tbe September term, 184J, of tbe circuit court for tbe county of Oakland, Findley, tbe plaintiff in error, was indicted for tbe murder of Simpson Buck. Upon bis arraignment, be pleaded not guilty; but was afterwards permitted by tbe court to withdraw that plea; whereupon be put in tbe following plea in abatement: “And the said John Findley comes, &e., and says, that the said bill of indictment ought not to be bad, or further prosecuted against tbe said John Findley, because tbe said bill of indictment was not found by tbe grand jury inqmring in and for tbe body of tbe county of Oakland, at tbe September term of tbe circuit court for said county, in tbe year A. D. 184V,; but that tbe said bill of indictment was found by a body of men .claiming to be tbe grand jurors of the people of tbe state of Michigan, ■inquiring in and for tbe body of tbe said county, on tbe 8th day of January, A. D. 1848; and that on tbe said 8th day of January, A. D. 1848, after tbe said body of men were sworn and charged by tbe court, and were retiring, one Henry Barber, who was of and belonged to the grand jurors of the people of the state of Michigan, inquiring in and for tbe body of tbe county of Oakland aforesaid, appeared in said circuit court and desired to be assembled and convened with tbe said body of men, who found tbe said bill of indictment, before tbe said body of men bad retired to consult upon tbe said bill; and tbe said Henry Barber was, on tbe said 8th day of January, 1848, and before tbe finding .of tbe said bill, rejected and prohibited by the said circuit court, with-
[236]*236out' any legal or justifiable cause, from assembling or convening with the saicj body of men, claiming to be grand jurors as aforesaid, and by whom the said bill of indictment was found; and this the said John Findley is ready to verify, &c. And the said John Findley further saith, that the said bill of indictment ought not to be had or further prosecuted against him, the said John Findley, because the said bill of indictment was found against him, the said John Findley, by a body of men claiming to be the grand jurors of the people of the state of Michigan, inquiring in and for the body of the county of Oakland, at the September term of the circuit court for the said county, in the year A. D. 184V, of and among which said body of men was one William Hibbard and one Peter Richardson, who had been originally drawn and summoned as grand jurors, and who were not sworn as such, which said William B. Hibbard and the said Peter Richardson were not of and did not belong to the grand jurors of the people of the state of Michigan, inquiring in and for the body of the county of Oakland, at the September term of said circuit court for the year A. D. 184V; and this the said John Findley is ready to verify.”
This plea upon demurrer was adjudged to be bad. It was obviously bad on several grounds, 1, Qn the groipid of duplicity: it states several distinct facte, haying no relation to or dependence upon eaph other— as, that Henry Barber was improperly rejected by the court from serving upon the grand jury, and that Hibbard and Richardson were improperly empanneled upon that jury. There is also a great disregard of precision and accuracy, if there is not repugnancy in jts statements, A plea in abatement should be eertaip to every intept, and b© pleaded without any repugnancy. 1 Chitty’s Pl. 492. It should also have a proper conclusion, praying judgment of the indictment and that it may be quashed. 1 Chitty’s Crim. L. 440. It is said, in 1 Chitty’s PI. 496, “great accuracy is necessary in the form of all pleas in abatement, as well in the commencement as in the conclusion, for it is said ‘they malee the plea'. A plea which concluded with praying judgment ‘ if’ (instead of ‘ of ’) the plaintiff’s bill, was held bad on demurrer, though the words ‘ and that the same may be quashed,’ were also added.”
To this plea there is no prayer of judgment. The plea is not verified by affidavit. Section 33, chapter 164 of the Revised Statutes provides, that “no plea in abatement, or other dilatory plea to the in[237]*237dictment, shall be received by any court, unless the party offering such plea shall prove the truth thereof by affidavit, or by some other evi, denee.” Without such proof, it is no plea — a mere nullity. 3 Burr, 1617; 2 Stra. 1161; 2 Barn. & Cress. 618.
But we axe all of opinion that the grand jury was properly constituted. These are the facts of the case: the grand jurors summoned at the September term, having finished the business before them, were dismissed by the comt; afterwards, and before the adjournment of the comt for the term, the crime for which the defendant was indicted was committed. At the common law it would haye been .competent for the comt to have commanded another grand jury to be summoned and sworn. 2 Hale 156; 1 Chitty’s Crim. L. 314. Our Revised Statutes, sec. 11, chap. 164, provide that, 11 when the grand jury attending any comt shall have been dismissed before the court is adjourned without day, they may be summoned to attend again, in the same term, at such time as the comt shall direct, and for the despatch of any business that may come before them.”
Hibbard and Richardson, though belonging upon the list of grand jurors drawn .and summoned to attend the September term of the comt, for some reason, and it matters not what, were not at the commence, ment of the term sworn and empanneled; when the event had occur, yed which made proper the convocation a second time of the grand jjn-y, they, with the others named in the grand jury list, were summoned, and appearing were sworn, and with the others empanneled, We do not see upon what principle it .can be said, that these two per, sons weye not qualified grand jurors, probi et legales homines. It is said that they weye not s>yom at the commencement of the term; and though grand jurors, that_they did not belong to the grand jury inquiring in and for the body of the county of Oakland, If they had not been dismissed for the term, it would have been competent for the comt at any time before the panel had been dismissed, upon their coming into court, to have sworn them, and sent them to their fellows. It has been very usual to do this when delinquent jurors have come in on the same day, after the jury have been sworn and charged. If it may be done that day, it may be done at any time during the session of the grand jury. It is a matter entirely in the discretion of the coiut; and .circumstances, as the absence of a part of those empanneled, from siclpr [238]*238ness, or other cause, might make its exercise very proper. There are in the statute no words of limitation, confining the jurors to be reassembled, to those only who had at first been sworn, and performed the duties of grand jurors, by inquiring in and for the body of the county, into the crimes and misdemeanors committed therein.
Barber, who had been re-summoned with the others, did not appear until after the jury had been sworn and received the charge of the .court; and, as is very frequently the case, there being enough without him, he was not sworn. This we consider to be a matter of discretion with the court, and, as we have already said, a usual practice, not only in this country, but in England. 1 Chitty’s Crim. L. 313.
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By the court,
Mtjndy, J.
On tbe 8tb of January, 1848, it being an adjourned day of tbe September term, 184J, of tbe circuit court for tbe county of Oakland, Findley, tbe plaintiff in error, was indicted for tbe murder of Simpson Buck. Upon bis arraignment, be pleaded not guilty; but was afterwards permitted by tbe court to withdraw that plea; whereupon be put in tbe following plea in abatement: “And the said John Findley comes, &e., and says, that the said bill of indictment ought not to be bad, or further prosecuted against tbe said John Findley, because tbe said bill of indictment was not found by tbe grand jury inqmring in and for tbe body of tbe county of Oakland, at tbe September term of tbe circuit court for said county, in tbe year A. D. 184V,; but that tbe said bill of indictment was found by a body of men .claiming to be tbe grand jurors of the people of tbe state of Michigan, ■inquiring in and for tbe body of tbe said county, on tbe 8th day of January, A. D. 1848; and that on tbe said 8th day of January, A. D. 1848, after tbe said body of men were sworn and charged by tbe court, and were retiring, one Henry Barber, who was of and belonged to the grand jurors of the people of the state of Michigan, inquiring in and for tbe body of tbe county of Oakland aforesaid, appeared in said circuit court and desired to be assembled and convened with tbe said body of men, who found tbe said bill of indictment, before tbe said body of men bad retired to consult upon tbe said bill; and tbe said Henry Barber was, on tbe said 8th day of January, 1848, and before tbe finding .of tbe said bill, rejected and prohibited by the said circuit court, with-
[236]*236out' any legal or justifiable cause, from assembling or convening with the saicj body of men, claiming to be grand jurors as aforesaid, and by whom the said bill of indictment was found; and this the said John Findley is ready to verify, &c. And the said John Findley further saith, that the said bill of indictment ought not to be had or further prosecuted against him, the said John Findley, because the said bill of indictment was found against him, the said John Findley, by a body of men claiming to be the grand jurors of the people of the state of Michigan, inquiring in and for the body of the county of Oakland, at the September term of the circuit court for the said county, in the year A. D. 184V, of and among which said body of men was one William Hibbard and one Peter Richardson, who had been originally drawn and summoned as grand jurors, and who were not sworn as such, which said William B. Hibbard and the said Peter Richardson were not of and did not belong to the grand jurors of the people of the state of Michigan, inquiring in and for the body of the county of Oakland, at the September term of said circuit court for the year A. D. 184V; and this the said John Findley is ready to verify.”
This plea upon demurrer was adjudged to be bad. It was obviously bad on several grounds, 1, Qn the groipid of duplicity: it states several distinct facte, haying no relation to or dependence upon eaph other— as, that Henry Barber was improperly rejected by the court from serving upon the grand jury, and that Hibbard and Richardson were improperly empanneled upon that jury. There is also a great disregard of precision and accuracy, if there is not repugnancy in jts statements, A plea in abatement should be eertaip to every intept, and b© pleaded without any repugnancy. 1 Chitty’s Pl. 492. It should also have a proper conclusion, praying judgment of the indictment and that it may be quashed. 1 Chitty’s Crim. L. 440. It is said, in 1 Chitty’s PI. 496, “great accuracy is necessary in the form of all pleas in abatement, as well in the commencement as in the conclusion, for it is said ‘they malee the plea'. A plea which concluded with praying judgment ‘ if’ (instead of ‘ of ’) the plaintiff’s bill, was held bad on demurrer, though the words ‘ and that the same may be quashed,’ were also added.”
To this plea there is no prayer of judgment. The plea is not verified by affidavit. Section 33, chapter 164 of the Revised Statutes provides, that “no plea in abatement, or other dilatory plea to the in[237]*237dictment, shall be received by any court, unless the party offering such plea shall prove the truth thereof by affidavit, or by some other evi, denee.” Without such proof, it is no plea — a mere nullity. 3 Burr, 1617; 2 Stra. 1161; 2 Barn. & Cress. 618.
But we axe all of opinion that the grand jury was properly constituted. These are the facts of the case: the grand jurors summoned at the September term, having finished the business before them, were dismissed by the comt; afterwards, and before the adjournment of the comt for the term, the crime for which the defendant was indicted was committed. At the common law it would haye been .competent for the comt to have commanded another grand jury to be summoned and sworn. 2 Hale 156; 1 Chitty’s Crim. L. 314. Our Revised Statutes, sec. 11, chap. 164, provide that, 11 when the grand jury attending any comt shall have been dismissed before the court is adjourned without day, they may be summoned to attend again, in the same term, at such time as the comt shall direct, and for the despatch of any business that may come before them.”
Hibbard and Richardson, though belonging upon the list of grand jurors drawn .and summoned to attend the September term of the comt, for some reason, and it matters not what, were not at the commence, ment of the term sworn and empanneled; when the event had occur, yed which made proper the convocation a second time of the grand jjn-y, they, with the others named in the grand jury list, were summoned, and appearing were sworn, and with the others empanneled, We do not see upon what principle it .can be said, that these two per, sons weye not qualified grand jurors, probi et legales homines. It is said that they weye not s>yom at the commencement of the term; and though grand jurors, that_they did not belong to the grand jury inquiring in and for the body of the county of Oakland, If they had not been dismissed for the term, it would have been competent for the comt at any time before the panel had been dismissed, upon their coming into court, to have sworn them, and sent them to their fellows. It has been very usual to do this when delinquent jurors have come in on the same day, after the jury have been sworn and charged. If it may be done that day, it may be done at any time during the session of the grand jury. It is a matter entirely in the discretion of the coiut; and .circumstances, as the absence of a part of those empanneled, from siclpr [238]*238ness, or other cause, might make its exercise very proper. There are in the statute no words of limitation, confining the jurors to be reassembled, to those only who had at first been sworn, and performed the duties of grand jurors, by inquiring in and for the body of the county, into the crimes and misdemeanors committed therein.
Barber, who had been re-summoned with the others, did not appear until after the jury had been sworn and received the charge of the .court; and, as is very frequently the case, there being enough without him, he was not sworn. This we consider to be a matter of discretion with the court, and, as we have already said, a usual practice, not only in this country, but in England. 1 Chitty’s Crim. L. 313.
After the petit jury had received the charge of the court and retired to consider of their verdict, they sent for and were permitted by the court, against the wishes of the defendant, to have in their room a copy of the Revised Statutes. For this reason a new trial was moved for, and by the court denied; and this matter coming up, upon a bill of exceptions, is assigned for error.
In the sending for and receiving of this book, the jury were guilty of no misbehavior; and it is .difficult to conceive how any use which they may have made of it could have injured the defendant. In the application of the law as given in charge to them by the court, the statute book, defining as it does the offence, and declaring it murder in the first or second degree, according to the mode and the circumstances of its perpetration, may'have been to them a just and useful guide; the more so as it was their duty to ascertain, in their verdict, whether it be murder of the first or second degree.
If the jury, without the knowledge or ajrprobation of the court, had procured this book, it would not, we think, be a sufficient cause for setting aside the verdict. Juries may, without the assent of the parties, take with them into their room, papers under seal which have been read in evidence; other papers and books which have been given in evidence, they have no right to take; but if they do take them, though it may be misbehaviour in them, it will not set aside the verdict. Co. Litt. 22Í b.
In the case of the Commonwealth v. Jenkins, Thatcher’s Crim. Cas. 108, it was held, that where the officer in attendance delivered to the jury at their request, without application to the court, after they had [239]*239retired to consult upon a verdict, a volume of the laws of the state, containing the act upon which the indictment was founded, which act had been commented upon by the counsel and court, that this was not a sufficient ground for a new trial.
In another case, 7 Mo. R. 607, it is said that a jury ought not to be permitted to carry out law books with them, unless for the sake of referring to the law as stated in a paragraph marked out for them. Hardy v. State. While we think there was no error in this case, in the permission given by the court, that the jury might have a copy of the Revised Statutes, we are fully satisfied that the view taken of this matter by Lord Tenterden, 3 Carr. and Payne 310, is the correct one, and ought to be followed. After his lordship had summed up the case, and the jury had retired, they sent a message to his lordship, desiring to have Selwyn’s Law of Nisi Prius sent them. His lordship, although both parties, consented, said, the regular way is for the jury to come into court and receive the law from the court, and for the sake of precedent that course should be adopted now.
The judgment of the circuit court must be affirmed.
Judgment affirmed.