Page:Palmore v. State.pdf/4

VOL. 29] Rh

17.CRIMINAL PRACTICE: What papers should be excluded from the jury.

The jury should not be permitted to take with them, when they retire, papers containing statements bearing on the case, which were not read in evidence. But where the paper taken is the appellant's motion for continuance, containing a statement of the facts he expects to prove, it cannot be prejudicial to him.

APPEAL from Phillips Criminal Court.

Hon. C C. W, Judge.

T. B. Hanley and Palmer & Sanders, for appellant.

S. P. Hughes, Attorney General, contra.

W, Sp. J. The appellant was indicted in the criminal court of Phillips county, for murder of one Meyers. He filed his motion to set aside the indictment, on the ground that two members of the grand jury that found the indictment were not freeholders or householders. To this motion the state demurred, the court sustained the demurrer, and appellant excepted.

Section 1978 of Gantt's Digest prohibits all exceptions to the ruling of inferior courts in refusing to set aside an indictment for certain causes, among others this. This section violates the provision of the constitution of 1868, section 9, article I., which requires a presentment or indictment by a grand jury, before the accused can be called to answer for such a crime as this. While the legislature may prescribe the time and manner of determining the objection for the want of qualification of jurors (Whitehead v. Wells, ante, p. 99), it cannot take away the right to make it.

The objection is here made in apt time, and the right of appeal cannot be taken away as to any important right. Constitution of 1868, secs. 4 and 15, art. VII; Simpson v. Simpson, 25 Ark., 489. It was not necessary that the members of the