Page:Dakota Territory Reports.djvu/87

 fore, extend to the defendant all his legal rights in the premises. But as this point will be hereafter considered, I shall pass it by for the present.

The first question that naturally arises and that should be examined, is: had the defendant a fair opportunity allowed him, according to law, to exercise his right of challenging the individual grand juror, George W. Delamater? This is the precise End only point in the case. The defendant complained that he had not, and the majority of this court sustained his view of the matter. Without stopping here to inquire whether or not the objection was properly on the record, or at all a part of it, under well-known rules, and in order to a correct and thorough understanding of the subject, I consider it proper (even at the expense of being considered prolix) to adduce the record, so that it may answer. It discloses the following facts:

Peter P. Wintermute being under arrest, charged with the killing of Gen. McCook, was, on the 5th of March, 1874, set at liberty, by being admitted to bail to appear at the next April term, to answer to such indictment therefor as might be found against him. On the 4th of April, in pursuance of an order to that effect, the officers appointed by law duly drew the names of the sixteen grand jurors; and the venire was, on the same day, placed in the hands of the sheriff. Among the names drawn and in the venire, was that of George W. Delamater, a well-known citizen of Yankton. The venire was returnable to the 16th of April, 1874. It thus appears that from the 4th until the 16th of that month, the accused had knowledge, from the public records, of the names of all the grand jurors; and he consequently had abundant time and opportunity to make all requisite inquiries as to the character, competency, and impartiality of the citizens who were, to compose the grand inquest, and more especially with reference to Mr. Delamater, a resident of his own city. On the 16th day of April, the sheriff having made return of said venire, the names of the grand jurors served (fifteen) were publicly called in open court, and they appeared and took seats. Among them, was George W. Delamater. The de-