Collier V. The State. aause from Jackson to Madison, after passing the limits of JANUARY 1830, his county, he lost the character of clerk, and had no more authority than any other messenger. The rule of practice adopted by the Supreme Court, requires the papers to be transmitted, sealed up, &c. Those papers were sent loose and open, and they were out of his hands for several days. It was improper to permit the clerk to swear that the indictment was the proper one. There was but one legal mode known to the law to make it evidence; it was the certificate of the clerk made in his proper county, and transmitted sealed as the rule requires. a The demurrer should have been sustained, because by the record it appeared the grand jury were selected on the return of the venire, and not drawn by lot, as requir ed by law. The word used is precisely opposite in meaning to what the statute requires. This statement in the caption of the indictment, must be taken as true, and the demurrer reaches into the caption of the indictment. How then can it be said they were lawfully empanelled, when it is expressly stated they were selected? Suppose it appeared in so many words that the Judge made choice of particular persons out of the names returned on the venire, would it be lawful? The statement here is tantamount. The language used, forbids the supposition that they were drawn. STEWART, for the State. a 1 John Rep. 498. Laws of Alabama, 496, section. 3. 1 Chitt. Crim. law 358, Tom. index 103. Lord Raymond, 1038, 1179. 3 By JUDGE COLLIER. The questions, as present- Salk. 187. ed, require an opinion on these points: 1. Should it appear from the indictment, or elsewhere on the record, that the jury summoned on the venire for the term, were chosen as required by statute, by a particular recital of the manner in which they were chosen? 2. Should it appear in totidem verbis, that the grand jury was selected, as the law requires? 3. Can the papers of a cause be taken by the jury in their retirement, if not read to them before? 4. Can a clerk, from whose Court a cause has been removed by change of venue, certify the original papers of the cause, seal them up with a certified copy of the entries in relation to it, and deliver them over to the clerk of the Court to which it is removed, while without his county? 1. No reason suggests itself to us why the indictment, or any other part of the record should discover how the Strange 598. 1 T. R 316., 4 Ch. Pl. 241. Collier V. The State. JANUARY 1830. panel of jurors were drawn. It is certainly no part of the appropriate office of the indictment; and if it be a material part of the record, we think it sufficiently appears from the venire itself, that the jury was regularly drawn. The part of the venire to which we have reference, after reriting the names of the jurors, proceeded thus: "being good and lawful jurors of your county, duly appointed as the statutes require.' The manner of appointment directed by the statute can be no other than legal, and we must suppose that they were so appointed. By so supposing, the plaintiff in error cannot be prejudiced, for if the jury have not been drawn pursuant to law, he may shew the irregularity to the Court by proof, under an issue adapted to its admissibility. 2. With regard to the second point, it need not appear from any part of the record, that the grand jury was chosen from the panel by lot;" any words of an equivalent import are equally good as those employed by the statute. It appears from the record, that the grand jury were selected, as the statutes in that case provides." These words convey to the understanding the idea of being chosen either by lot,' or such other way as the statutes require; and are therefore sufficient for all legal purposes. If, however, it did not appear that the grand jury were drawn pursuant to law, if the record was silent on this point, we should be disinclined to give to the prisoner any benefit from the exception. If the objection was well founded, he might have availed himself of it by plea in abatement. 3. In respect to the third point, it is sufficient to say that all the records and proceedings of a cause are considered before the jury when it is submitted to them, and whether read or not, are subject to their examination. 4. On the last point, it is insisted that the law is in favor of the prisoner, because this Court have, where there is a change of venue, directed the original papers, and the entries relative thereto, to be certified and transmitted in a manner different from what they have been in the present The rule relied on is the 8th rule for the government of the practice of the Circuit and County Courts, adopted at May term, 1820. So much as is pertinent, is in these words: "Whenever a change of venue shall be awarded, it shall be the duty of the clerk to subjoin to the original papers belonging to the suit, a transcript of all en case. Collier V. tries relative to the same, the whole of which being en- JANUARY 1830. closed under seal, shall be sent by some discreet peron to the clerk of the Court to which the suit shall be removed, &c." This rule, it may be remarked, does not require The State. the clerk to certify and seal the papers at any particular place. And if it was competent for him, before its adoption, to do this elsewhere than in the county of which he was clerk, we can discover no reason why he should not be permitted to do so now. In this case, the clerk certifies under his private seal, because he has no official seal. Our reasoning as well our conclusion, is therefore designed for the particular state of fact, leaving the general proposition to be determined when a fit case shall present itself. In order to make the proper certificates, the clerk should compare his transcript with the minutes of the Court. The original papers are only to be identified with the papers of the cause, and if the clerk is informed as to the correctness of the transcript, and the identity of the papers, he may make a certificate at any place. The case relied on by the plaintiff in error, a is not anala- a 1 John. 497. gous in principle. In that case, a judge, without the State in which he held his office, administered an oath, in regard to some matter within the State. It was held that the administration of the oath was unauthorized, because it was a judicial act. The reason of that case, it must be observed, does not apply to a ministerial act, of which character was the one complained of, and ministerial acts in regard to locality are not controlled in all respects by the same rules which apply to those that are judicial. A judge cannot, when out of the jurisdiction where his duties are to be performed, receive a relinquishment of dower from a feme covert; but he may certify the official character of a clerk of one of his Courts any where. Instead of transmitting the papers and copies of the entries, as expressed in the rule, the clerk might himself have become the bearer, and the respect to which his certificate is entitled as evidence, is not lessened from the circumstance of the solicitor's having had the papers of the cause in his hands before they were certified and delivered by him. By afterwards enveloping and delivering them, he affirmed their genuineness. Again, by the plea of "not guilty," the prisoner admitted himself legally triable on the papers in the Madison Circuit Court; and if he was not, his objections being extrinsic, should have been urged on motion for a new trial. JANUARY 1830. Collier V. The State. Having examined the questions upon the reference, we are of opinion that the judgment must be affirmed. By JUDGE CRENSHAW. In this case I cannot concur in the judgment now rendered by a majority of the Court. In criminal proceedings, I hold it absolutely es sential to extend to the party accused all his rights which he has not expressly waived. No citizen can be legally punished unless he has been prosecuted and convicted in pursuance of a law prescribed, and according to the modes of proceeding, which are legal and constitutional. No feature of our criminal jurisprudence is more sacred than that spirit of tenderness and humanity which pervades the whole system. This is the citadel of safety and protection of our rights and liberties, to which we are to resort in times of tumult and violence, and indeed at all times. If a party is to be infamously punished, his conviction must be clearly according to law, otherwise his punishment is illegal and oppressive. In the case before the Court, I dissent from the opinion of a majority of the Judges, because the Judge who tried the case had no evidence from which he could legally know that the bill of indictment on which the party was tried, was indeed the true indictment. Suppose it was lawful for the clerk of Jackson, after he had carried the papers of the case from his own office to Madison, to certify in Madison county, that they were the true papers of the case, yet I would ask how could he make such a certificate when the papers had been out of his possession for three days, and when it was imposssible for him certainly to know that they were the true papers, though he might have the strongest belief that they were? To say the least of it, I think it a dangerous practice, and it ought not to be, tolerated in a criminal proceeding Furthermore, it was at least doubtful whether it was competent for the clerk of Jackson, out of his office, and in another county, to give a certificate, which was material in a criminal case. And in a criminal proceeding, where the punishment is infamous, I hold that a doubt of the fact or of the law, is tantamount to an acquittal. For these reasons, I am for reversing the judgment, and remanding the case for a trial de novo. Judgment affirmed. JUDGE WHITE not sitting. JANUARY 1830 LAKE & BARRON V. THE GOVERNOR. The declaration stated, that the defendant being charged as father of a bastard child, gave bond payable to the Governor in the penalty of $2,000, to appear before the County Court to answer the charge, and that he failed to appear, and on demurrer, the Court gave judgment for $500, without a jury. It was held. 1. That the bond under the act of 1811, was properly made payable to the Governor. 2. That the defendant was liable to an action on the bond for failing to appear, though no conviction against him was shewn. 3. That it was not error for the Court to render judgment without a jury, for a less sum than the penalty of the bond. 4. That such bond is not within the statute of 1824, requiring breaches to be assigned. An action of debt was instituted in Perry County Court, in 1827, in the name of John Murphy, Governor of Alabama, and successor of I. Pickens, against J. Lake and W, Barron, on a bond executed by them the 31st October, 1825, whereby they bound themselves to said Pick. ens, Governor, and his successors in office, in the penalty of $2,000, with condition, that, "whereas, Peggy Hartley, a single woman, hath in, and by her examination, taken in writing, and upon oath, before me, the undersigned, a justice of the peace in and for said county, declared that on the 4th of October instant, she was delivered of a male bastard child, and hath charged the said Lake with having begotten her with child of said bastard: Now, the condition of the above obligation is such, that if the said Lake do and shall appear at the next County Court, to be holden in and for said county, on the second Monday in January next, and shall abide and perform such order or orders as shall be made in the premises, pursuant to the act in such case made and provided, and shall, in the mean time, be of good behaviour, then to be void, &c." The declaration contained three counts: the first was on the penalty of the bond only, alleging as a breach the non-payment of the money. The second count recited the obligation and condition, and averred that at the January term, 1826, the County Court was not holden, on account of the absence of the Judge, whereby the obligation thereof stood in full force and effect in law to the next term, to wit: July term, 1826, at which time said Lake failed to appear to abide the order of the Court, by means of which the bond became forfeited. The third count was nearly similar, but stated the instrument as a recogni |