The People vs. Wintermute.
ment were presented, but as we regard the motion in arrest decisive of the case, that question will only be considered.
The Statute of 1862-3, Criminal Code, 107, § 13, provides that, "a person held to answer a charge for a public offense, may challenge the panel of the grand jury, or any individual grand juror, before they retire, after being drawn and charged by the court."
Among the causes for individual challenge, the act embraces the following: Section 15, Sub. Div. 6, "That a state of mind exists on his part in reference to the case, or to either party, which satisfies the court in the exercise of sound discretion, that he cannot act impartially and without prejudice to the substantive rights of the party challenging."
After the grand jury in the present case had been impanelled, charge and sworn, and before they retired, Peter P. Wintermute, this defendant, "who was then held to answer a charge for a public offense" before that body, challenged an individual member thereof in accordance with the permission and for the cause specified in sub-division six above quoted.
The court disallowed the challenge upon the ground that the Statute of 1862-3 had been repealed by subsequent territorial legislation, and was not in force. That the presence of a disqualified grand juror vitiates the whole panel is well settled by numerous authorities, among which are the following: 1 Bish, Crim, Pro., § 884; Commonwealth v. Cheny, 2 Virg. Ca., 20; 1 Ch. C. L., 307-8-9; 2 Hawk. Cr. Ch., 26, § 16; Barney v. State, 2 S. & M., 68; Portis v. State, 23 Miss., 678; Stokes v. States, 24 Miss., 621; Miller v. State, 33 Miss., 366; State v. Symouds, 36 Me., 128; State v. Lightbody, 38 Me., 200.
The grand jury impanelled and the challenge thus denied, that body returned to consider whatever presentments might be made. Subsequently it indicted the defendant, thus held to answer, for murder ; and afterwards he was tried and convicted in the District Court in the county of Yankton for manslaughter.
If, therefore, the Statute of 1862-3 was not then in force, the court below, by its rulings, so far as the same are presented by the motion in arrest, gave to the defendant all the rights
