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342 TRIAL OF JOHN U'. WEBSTER.
made requisite that "all precepts, warrants, venires, and processes,"
issued from the
Municipal Court, shall be tested like the processes of the Court of Common
Pleas,
and be under seal. Is it supposed by the learned counsel, that this makes
seals to
processes any more requisite in the instance of the Municipal Court, than
the
Court of Common Pleas, or any other court of superior jurisdiction? The
plain
intent of the statute is to require a seal to the Municipal Court process,
where the
process is of such a nature as to require a seal; and the old seal of the
Court is
retained under its new organization.
Besides, it is enough to say of this order, that it is not "a process;" any
more
than as if the same information had been communicated to the prisoner in
open
Court. It is no order of command from the Court, but only a communication of
information. Why, also, if there is anything in the point, is it not
insisted that the
notice of the Chief Justice of the finding of the indictment is not under
seal?
If the reasoning above urged is just, then the position, that the Municipal
Court
are intended by the law to act only a ministerial part in the transmission
of a
capital indictment to this Court, and to serve as a mere conduit or channel
of
conveyance, is not only made good, but the further position is
substantiated, that,
acting in that ministerial capacity, it has complied with all the
requisitions of the
statute. It has had the order of notice passed and recorded, the service
has (for
aught that properly appears) been duly made by the sheriff, and the clerk
has
certified and transmitted the indictment to this Court. This Court,
therefore, had
proper cognizance of the case; and I submit, that our first position is
made out,
that the grounds of error raised are immaterial and of no moment. But if
this is not
sufficiently shown, I pass to my second point,
2. That they disclose only matters of abatement, and which have therefore
been waived by pleading over.
Various analogous cases have arisen where the Courts have decided that
defects
similar to those now complained of must be taken advantage of, if at all,
in the
way of abatement or preliminary objection. I have classified some of these
under
two or three divisions, which I will not trouble the Court with commenting
upon in
detail.
The privilege of having a copy of the indictment must be claimed in advance,
or it will be deemed to have been waived. 1 Chit. Cr. L. 405; Smith v. The
State, 8
Ham. (Ohio R.) 294; State v. Calvin, R. M. Charl., (Geor. R.,) 142; Loper
v. The
State, 3 How. (Missip. R.) 429; State v. Johnson, Walk. (Missip. R.) 392;
State v.
Williams, 3 Stew, (Ala. R.) 463.
So, as to the omission of the endorsement of the names of the witnesses on
the
back of an indictment. Rex v. Dickinson, Rus. & Ry. 401; State v. Roberts,
2 Dev.
& Bat. (N. Car. R.) 540; State v. McEntire, 2 Car. L. R. 287; King v. The
State, 5
How. (Missip.) 730.
As to the omission of the seal on the copy of the notice complained of here
it
has been decided by this Court in three very strong civil cases, that the
omission of
a seal to process is waived by pleading over. Ripley v. Warren, 2 Pick. 592;
Stevens v. Ewer, 2 Met. 74; Foot v. Knowles, 4 Met. 386. This latter case
went
the length even, that the use of a Common Pleas Court writ in commencing a
Supreme Court action was cured by going to trial upon the merits.
Coming to matters of preliminary proceeding, and at the same time of
substance,-it has been held that disqualifications of grand jurors must be
excepted to
at the outset. Turns v. Commonwealth, 6 Met. 224-234 per Shaw, C. J. See
also
Commonwealth v. Tucker, 8 Mass. 286; The People v. Jewett, 3 Wend. 314;
McQuillen v. The State, 8 Smede and Mar. 599. So even of want of partiality
in a
traverse juror. Commonwealth v. Knapp; 10 Pick. 480. And of a juror's being
an
atheist. McClure v. The State, 1 Yerg. 206. So of a juror's not belonging
to the
county in which he is empanelled. Case mentioned by Jack
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