ception thus abandoned. And so the supreme court of New York decided in the subsequent case of Freeman vs. The People. Referring to the case in 1 Denio 310, Judge Beardsley, who delivered the opinion of the court in both cases, said, "The prisoner was free to use his peremptory challenges as he thought proper, but, having resorted to them, they must be followed out to all their legitimate consequences. Had he omitted to make peremptory challenges, his exceptions, growing out of the various challenges for cause, would have been regularly here for revision. But he chose, by his own voluntary act, to exclude these jurors, and thus virtually, and, as I think, effectually, blotted out all such errors, if any, as had previously occurred in regard to them." Such, we think, is the law applicable to the case now under consideration.
5. The only objection to the caption of the indictment here is, that it does not, in setting forth the style and term of the court, state at what place it was holden. Such defect cannot be objected after verdict. (Dennis vs. The State, 5 Ark. 231.) But the record does not show that the indictment was preferred by any legally constituted grand jury. It has never been the practice in this State for the names of the persons composing the grand jury, by whom the indictment was found, to be inserted in the caption. But it has been the uniform practice of this court, on appeals and writs of error in criminal cases, to require the transcript to set forth the empanneling of the grand jury and their names. This is an independent proceeding, usually the first to take place on the opening of court, of which a separate entry is made on the record, forming no part of the record of any particular indictment, so long as the record remains in the court where it was preferred; but when the record is removed, it has been considered necessary that the transcript be prefaced with copy of the entry of the empanneling of the grand jury at the term when the indictment was found.
It is not doubted that a party in cUstody and liable to indictment, may challenge the array of the grand jury, before they are
