the settled practice of the court without holding that a plea to the indictment is a waiver of all objections upon as well as de hors the record in the court below to the empanneling of the grand jury, or even for the want of a grand jury.
In this case, the omission may have first occurred in the transcript sent from Clark to Hot Spring, in pursuance of the order for change of venue. A certiorari to Hot Spring would not supply the defect, and if necessary in order to affirm the judgment, the writ would go to the county of Clark where the indictment was found, and where, as in all changes of venue in criminal cases, the original record remains. And so the circuit court of Hot Spring county, acquiring jurisdiction upon and by means of the order of the Clark circuit court for the change of venue, would clearly have the authority, at any time while the cause is pending before it, and whenever the omission of the entry of the empanneling of the grand jury is brought to its notice, to send a certiorari to Clark county in order to supply it.
6. For the error of the court in deciding that the trial should proceed against the objection of the prisoner, because a list of the jurors summoned had not been delivered to him forty-eight hours before the trial, the judgment of the circuit court will have to be reversed, and we have thought it proper to consider, upon the state of case presented on this record, what disposition is now to be made of the cause and of the prisoner, who, not appearing to have obtained any stay of execution pending his writ of error in this court, we are to presume, is undergoing confinement in the penitentiary, pursuant to the sentence.
At the common law, a writ of error in criminal cases, was not demandable as a right, but only granted as a matter of favor, and issued upon the fiat of the law officer of the crown. This was certainly so in all cases of treason and felony, and though the court might order him to allow it in misdemeanor, where improperly refused, there seems to have been no mode of controlling his discretion to refuse the writ sought to reverse a conviction of treason or felony. (1 Chit. Crim. Law 748.) Bills of exception were not allowed on trials for treason or felony, and it is ques-
