jurors, being freeholders, within the county where the court is held, to serve on the petit jury, and on any day the court may discharge those who have served the preceding day. It shall be a disqualification and ground of challenge to any tales juror that such juror has acted in the same court as grand, petit or tales juror within two years next preceding such term of court.

Code, s. 1733; R. C., c. 31, s. 29; 1779, c. 156, s. 69.

JUROR MUST ACT TO BE DISQUALIFIED.—To render a juror disqualified because he has served on the jury within two years past it must appear not only that he has been summoned, but that he has acted within that time. Whitfield, 92-831.

Exemption from jury duty claimed by virtue of services in a fire company for five years, as prescribed in its charter, is not a contract, but a mere privilege, and may be revoked by the legislature at any time. Cantwell, 142-604.

The exemption from jury duty claimed by defendant under ch. 55, private acts 1868, providing that five years active service in the fire company incorporated by that act shall exempt its members from jury and militia duty during life, is directly in conflict with Rev., sec. 1957, which directs the county commissioners to place the names of all taxpayers of good moral character, etc., on the list for jury duty, the exemptions being stated in sec. 1980, which does not exempt the defendant: Held, that the act of 1868, if public in its nature, is repealed by Rev., sec. 5453, or, if it is a private act, by sec. 5458. Cantwell, 142-604.

Sec. 542 (1968). Judge to appoint one to summon tales jurors, sheriff interested.

In the trial of any action before a jury where the sheriff of the county in which the case is to be tried is a party to or has any interest in the action, or when the presiding judge shall find upon investigation that the sheriff of the county is not a suitable person, on account of indirect interest in or relative to the cause of action, to be entrusted with the summoning of the tales jurors in any particular case pending, such judge shall appoint some suitable person to summon the jurors in place of the sheriff.

1889, c. 441.

III. GRAND JURORS.

Sec. 543 (1969). How drawn.

The judges of the superior court, at the terms of their courts, except those terms which are for the trial of civil cases exclusively, and special terms for which no grand jury has been ordered, shall direct the names of all persons returned as jurors to be written on scrolls of paper and put into a box or hat and drawn out by a child under ten years of age; whereof the first eighteen drawn shall be a grand jury for the court; and the residue shall serve as petit jurors for the court.

Code, s. 404; R. C., c. 31, s. 33; 1779, c. 157, s. 11.
Note. For special terms, see s. 1515.

Sec. 544 (1970). Exceptions to, when taken.

All exceptions to grand jurors for and on account of their disqualifications shall be taken before the jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if not so taken the same shall be deemed to have been waived. Code, s. 1741.

Sec. 545 (1971). Foreman may administer oaths.

The foreman of every grand jury duly sworn and impaneled in any of the courts shall have power to administer oaths and affirmations to persons to be examined before it as witnesses: Provided, that the said foreman shall not administer such oath or affirmation to any persons except those whose names are endorsed on the bill of indictment by the officer prosecuting in behalf of the state, or by direction of the court: Provided further, that the foreman of the grand jury shall mark on the bill the names of the witnesses sworn and examined before the jury.

Code, s. 1742; 1879, c. 12.

FAILURE TO MARK NAMES OF WITNESSES.-The above section is merely directory, and the omission of the foreman to mark on the bill the names of the witnesses sworn and examined is no ground for quashing the bill or arresting the judgment. Following State v. Sheppard, 97–401. Hollingsworth, 100-535.

The omission of the foreman of the grand jury to put a X before the name of the witnesses is not ground for the arrest of judgment, since such endorsements form no part of the record. A motion to quash on such ground made after pleading to the indictment may be overruled in the discretion of the court, since defendant might have pleaded in abatement and shown, if such was the fact, that the witnesses had not been sworn. Sheppard, 97

401.

The failure of the foreman to sign the endorsement on the back of a bill underneath the words "those marked thus X sworn and sent," is not sufficient ground to sustain a motion to quash, or in arrest of judgment. Lanier, 90-714.

It is not necessary that it should appear that the state's witnesses were sent before the grand jury. Frizell, 111-722.

DRAWING AND SWEARING GRAND JURY.-The record stated that the persons impaneled as grand jurors, among whom was the one appointed foreman, were "duly drawn, sworn, and the court having appointed J P foreman, are charged": Held, that it sufficiently appeared that the foreman had been properly drawn and sworn. Weaver, 104-758.

CONSTITUTION.-An act of the legislature making the concurrence of nine members of the grand jury sufficient, is unconstitutional. Barker, 107—913. ACTUAL PRESENCE OF GRAND JUROR WHEN BILL FOUND.-Defendant is not required to show affirmatively that a grand juror who was disqualified by having a suit on the docket was actually present and participated in the deliberations of the grand jury when the bill was found. Smith, 80-410.

BILL NOT RETURNED IN OPEN COURT-HOW PROVED.-The recital in an indictment that "the jurors upon their oath present," etc., raises a presumption, when accompanied by the endorsement of a "true bill" signed by the

foreman, that it was duly returned and presented in open court, and proof to the contrary can only be heard on plea in abatement made in apt time. Weaver, 104-758.

ENDORSEMENT OF TRUE BILL.-The endorsement on the back of an indictment "a true bill," raises a presumption that every member of the grand jury concurred in the finding of the bill. McNeill, 93-552.

DEFENDANTS NOT TO BE EXAMINED AGAINST EACH OTHER.-Where there are two defendants, it is improper to examine each against the other before the grand jury for the purpose of obtaining a true bill against both. Krider, 78-481.

WITNESS NOT TO BE EXAMINED PUBLICLY.-A judge of the superior court has no right to require a grand jury to have the witnesses on the part of the state examined publicly. Branch, 68-186.

WITNESS, HOW SWORN.-The statute simply gives an additional mode of swearing witnesses to testify before the grand jury, but does not abrogate the mode formerly prevalent of swearing them in open court. Allen, 83-680. NEW BILL FOR SAME OFFENSE, WITNESS EXAMINED.-Where an indictment is quashed and a new bill for the same offense sent and returned by the grand jury "a true bill," without a re-examination of the witnesses, the new bill should be quashed. Ivey, 100–539.

PRESENTMENT NEED NOT BE SIGNED.-A presentment need not be signed by any one; it is the returning of the indictment in open court and its being there recorded that makes it effectual. Cox, 28 (6 Ired.), 440.

Sec. 546 (1972). Must visit jail and county home.

Every grand jury, while the court is in session, shall visit the county home for the aged and infirm, the work-house, if there is one, and the jail, examine the same, and especially the apartments in which inmates and prisoners shall be confined; and they shall report to the court the condition thereof and of the inmates and prisoners confined therein, and also the manner in which the jailer or superintendent has discharged his duties.

Code, s. 785; R. C., c. 30, s. 3; 1816, c. 911, s. 3.

NOTE. For duty of grand jury in reporting infants without guardian, see s.

1810.

IV. SPECIAL VENIRE.

Sec. 547 (1973). Ordered; summoned.

Whenever a judge of the superior court shall deem it necessary to a fair and impartial trial of any person charged with a capital offense, he may issue to the sheriff of the county in which the trial may be, a special writ of renire facias, commanding him to summon such number of the freeholders of said county as the judge may deem sufficient (such number being designated in the writ), to appear on some specified day of the term as jurors of said court; and the sheriff shall forthwith execute the writ and return it to the clerk of the court on the day when the same shall be returnable, with the names of the jurors summoned.

Code, s. 1738; R. C., c. 35, s. 30; 1830, c. 27.

Sec. 548 (1974). Drawn from box, when.

Whenever a judge shall deem a special venire necessary, he may, at his discretion, issue an order to the clerk of the board of commissioners for the county, commanding him to bring into open court forthwith the jury boxes of the county, and he shall cause the number of scrolls as designated by him to be drawn from box No. 1 by a child under ten years of age. And the names so drawn (being freeholders) shall constitute the special venire, and the clerk of the superior court shall insert their names in the writ of venire, and deliver the same to the sheriff of the county, and the persons named in the writ and no others shall be summoned by the said sheriff. If the special venire is exhausted before the jury is chosen, the judge in his discretion may order another special venire to be drawn and summoned in like manner as the first, until the jury has been chosen. The scrolls, containing the names of the persons drawn as jurors from box No. 1 shall, after the jury is chosen, be placed in box No. 2; and if box No. 1 is exhausted before the jury is chosen, the drawing shall be completed from box No. 2, after the same shall have been well shaken. In the counties of Durham and Rockingham whenever a special venire is ordered, the jurors shall be drawn as herein provided.

Code, s. 1739; 1897, c. 364.

Sec. 549 (1975). Penalty on sheriff not executing; on jurors not attending. If any sheriff shall fail duly to execute and return such writ of venire facias, he shall be fined by the court not exceeding one hundred dollars; and all jurors so summoned shall attend until discharged by the court, under the same rules and penalties as are prescribed for other jurors.

Code, s. 1740; R. C., c. 35, s. 31; 1830, c. 27, s. 2.

V. GENERAL PROVISIONS.

Sec. 550 (1976). Summoned and must attend until discharged.

The clerk of the board of county commissioners shall, within five days from the drawing, deliver the list of the jurors drawn for the superior court to the sheriff of the county, who shall summon the persons therein named to attend as jurors at such court, which summons shall be served, personally, or by leaving a copy thereof at the house of the juror, at least five days before the sitting of the court to which he may be summoned; and jurors shall appear and give their attendance until duly discharged.

Code, s. 1733; 1868-9, c. 9, s. 12; R. C., c. 31, s. 29; 1779, c. 157, ss. 4, 6.

CONSTITUTION.-Laws of N. C., 1885, c. 63, sec. 19, prescribing the mode for drawing a special venire for the criminal court of New Hanover, is substantially the same in effect as The Code, sec. 1739, and is not unconstitutional. Jones, 97-469.

WHERE JUROR HAS FORMED AND EXPRESSED AN OPINION.-Where a juror, on his examination, states that he had formed an opinion that the prisoner was guilty on report merely, and that it would require evidence to remove the impression, yet, he could, on hearing the evidence and the judge's charge, disregard the opinion, and the trial judge decides that the juror is indifferent, the decision of the court is unreviewable. Potts, 100-457.

A juror in answer to the question whether he had formed and expressed an opinion as to the guilt or innocence of the prisoner, said that he had, and the prisoner challenged him for cause, but the court suggested to counsel to ask whether the opinion expressed was that the prisoner is guilty, which counsel declined to do, and the challenge was disallowed: Held, no error, since it is incumbent on him who challenges to show that he is the party likely to be prejudiced. Efler, 85-585.

It is no good cause of challenge that a juror has formed and expressed an opinion adverse to the prisoner, such opinion being founded on rumor, when the juror states that he can try the case according to the law and evidence, uninfluenced by any opinion he may have formed from such rumor. 70-241.

Collins,

PAYMENT OF TAXES.-The judge when ordering a special venire may direct the sheriff to summon only freeholders who have paid their taxes for the preceding year, who have not served on the jury within the past two years, who have no suits in court, and who are not under indictment. Codey, 119908.

An objection that the special venire was summoned by the sheriff as prescribed by section 1738 of The Code instead of being drawn from the jury box as prescribed by section 1739 is untenable, since the latter method is discretionary. Smarr, 121-669.

A tales juror called on a trial in April, 1894, is not disqualified because he had not paid his taxes for 1893, he having paid them for 1892. Sherman, 115-773.

EVIDENCE UNNECESSARY, WHEN.-No evidence of the disqualification is necessary when the court refuses the motion to quash, solely on the ground that it is too late. Haywood, 94-847.

A motion to quash for the disqualification of a grand juror made before plea will be granted as a matter of right; if made after plea it will be granted or not in the discretion of the judge. DeGraff, 113–688.

A motion to quash, made before plea, on the ground that three of the grand jurors had failed to pay their taxes for the preceding year was properly sustained. Fertilizer Co., 111-658.

CHALLENGE GRAND JUROR A SON OF THE PROSECUTOR.-The fact that a member of the grand jury that found an indictment for larceny was the son of the prosecutor whose goods are charged to have been stolen, and that the said grand juror "actively engaged in finding said bill a true bill," is not sufficient to support a motion to quash made before arraignment by plea in abatement, and a demurrer to such plea will be sustained. Sharp, 110—604.

NO APPEAL WHEN.-Where a motion to quash for the disqualification of a grand juror is made after plea and declined without the assignment of any reason, it will be assumed that it was denied in the discretion of the court, and no appeal will lie. DeGraff, 113-688.

When a grand juror was of age when he served in February, 1897, but reached his majority in September, 1896, the fact that he had not paid his taxes for the preceding year (1895) is no tenable objection to his compe