Fifth. That he is the prosecutor upon a charge against the defendant. Sixth. That he is a witness on the part of the prosecution. Seventh. That such a state of mind exists on his part in reference to the party charged, that he can not act impartially and without prejudice to the substantial rights of the challenger.

Eighth. That he holds his place in the grand jury by reason of the corruption of the officer who selected and impaneled the grand jury. Ninth. That he is in the habit of becoming intoxicated.

Tenth. That he has requested, or caused any officer or his deputy to be requested, to place him upon the grand jury.

Persons in custody or on bail may, before indictment challenge members of the grand jury. Mershon v. State, 51 Ind. 14.

If persons indicted are not in custody or on bail when the grand jury is impaneled, they may challenge the jurors by plea in abatement. Hardin v. State, 22 Ind. 347; Mershon v. State, 51 Ind. 14.

Pleas in abatement should be neither uncertain, ambiguous or repugnant. Hardin v. State, 22 Ind. 347; Ward v. State, 48 Ind. 289.

Pleas in abatement must show that the defendant had no opportunity to challenge the jury before indictment. McClary v. State, 75 Ind. 260.

A challenge to the array of a grand jury must set forth the causes therefor, and be under oath. McClary v. State, 75 Ind. 260.

When jurors are required to be freeholders of the county, they must own real estate within the county. Wills v. State, 69 Ind. 286.

Irregularities in the selection of a grand jury, not amounting to fraud or corruption, is no cause for challenge. Cooper v. State, 120 Ind. 377; Meiers v. State, 56 Ind. 336. Pleas challenging the validity of a grand jury must be filed before pleading to the indictment. Cooper v. State, 120 Ind. 377; Deitz v. State, 123 Ind. 85.

If a defendant has challenged the array before indictment, he can not again present the same question by plea in abatement. Meiers v. State, 56 Ind. 336; McClary v. State, 75 Ind. 260.

1726. (1657.) Challenge, how tried.-84. Such challenge may be oral, and must be entered by the clerk upon the minutes. If the facts alleged be denied, the challenge must be tried at once by the court; and the juror challenged may be examined as a witness to prove or disprove the challenge, and he is bound to answer every question pertinent to the inquiry therein. The challenger, and other witnesses then present, may also be examined on either side; and the rules of evidence applicable to the trial of other issues shall govern the admission or exclusion of testimony on the trial of the challenge; but the matter must be summarily heard, and the court must allow or disallow the challenge, and the clerk must enter its decision upon the minutes.

1727. (1658.) If allowed, new jury selected.-85. If a challenge be allowed to an individual grand juror for any of said causes, he must be forthwith discharged from the grand jury, and his place shall be filled from among the by-standers.

1728. (1659.) Foreman administers oaths.-86. The foreman of the grand jury is authorized to administer all necessary oaths to wit

nesses.

1729. (1660.) Juror, having knowledge, discloses crime.-87. If a member of the grand jury know, or have reason to believe, that a public offense has been commitfed which is triable in the county, he must declare the same to his fellow-jurors, who must thereupon investigate the same.

1730. (1661.) Secrecy.-88. Every member of the grand jury must keep secret whatever he himself or any other grand juror may have said, or in what manner he or any other grand juror may have voted on a matter before the grand jury.

1731. (1662.) When may disclose.-89. A member of the grand jury may, however, be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court; or to disclose the testimony given before them by any person upon a charge against him for perjury, in giving his testimony or upon his trial therefor.

Grand jurors may be called as witnesses to prove what occurred before the jury. Burnham v. Hatfield, 5 Blkf. 21; Shattuck v. State, 11 Ind. 473; Burdick v. Hunt, 43 Ind. 381.

1732. (1663.) Can not be questioned.-90. A grand juror can not be questioned for anything he may say or any vote he may give in the grand jury relative to a matter legally pending before the grand jury, except for a perjury of which he may have been guilty in making an accusation or giving testimony to his fellow-jurors.

Malicious prosecution can not be maintained against grand jurors for their action, no matter from what motives they acted. Hunter v. Mathis, 40 Ind. 356.

1733. (1664.) Witness refusing to answer.-91. Witnesses may De compelled to attend and testify before the grand jury, and if a witness before the grand jury refuse to answer an interrogatory, the fact shall be communicated to the court in writing, in which writing the question refused to be answered shall be stated, together with the excuse for the refusal, if any be given by the person interrogated; and the court shall thereupon determine whether the witness is bound to answer or not, and the grand jury shall be immediately informed of the decision. Each witness shall also be sworn not to divulge, except when legally called upon to do so, any portion of his testimony before the grand jury, for a violation of which portion of such oath such witness shall be liable to punishment as for a contempt.

Courts may punish witnesses for contempt in failing to obey process to appear before a grand jury. The statute regulating proceedings for contempt is not applicable to such cases. Baldwin v. State, 126 Ind. 24.

1734. (1665.) Obstinate witness.-92. If the court determine that the witness is bound to answer, and he persist in his refusal, he shall be brought before the court; which shall proceed in the same manner as if the witness had been interrogated and refused to answer in open

court.

1735. (1666.) Order of business.-93. The grand jury must inquire

First. Into the case of every person imprisoned in the county jail on a crimimal charge, and not indicted.

Second. Into the case of every person under bail in said county to answer a criminal charge, and not indicted.

Third. Into willful and corrupt misconduct in office of public officers of every description in the county, and into any charge against them of extortion.

Fourth. Into the condition and management of the public prisons and poor-houses of the county.

Fifth. Into violations of the criminal laws of this state generally, of which the court has jurisdiction.

The grand jury can only inquire into offenses committed within the jurisdiction of the court. Beal v. State, 15 Ind. 378.

1736. (1667.) Prisons and poor-houses.-94. The grand jury, during term-time of the court, shall be entitled to free access, at all reasonable times, to the county prison or prisons and the county poorhouse, for the purpose of examining their condition and management. 1737. (1668.) Presence of prosecutor.-95. The prosecuting attorney or his deputy shall be allowed, at all times, to appear before the grand jury, for the purpose of giving information relative to any matter cognizable by it or advice upon any legal matter when required; and he may interrogate witnesses before the grand jury, when the jury or he deem it necessary; but no prosecuting attorney, officer, or person shall be present with the grand jury during the expression of their opinions or in giving their votes upon any matter before them.

Prosecuting attorneys may attend the sittings of the grand jury, examine witnesses, and advise the jury upon matters of law; and his presence during the time the jury votes upon finding an indictment is no cause for the abatement thereof. Shattuck v. State, 11 Ind. 473.

Prosecuting attorneys may be required to testify as to the evidence given before the grand jury by a witness. State v. Van Buskirk, 59 Ind. 384.

[1881 S., p. 114. In force September 19, 1881.]

1738. (1669.) Indictment, and how found.-96. At least five of the grand jurors must concur in the finding of an indictment; and when so found it must be signed by the prosecuting attorney; and it must also be indorsed by the foreman of the grand jury. "A true bill," and he must subscribe his name thereon as foreman.

No inquiry can be made as to the number of jurors concurring in the finding of an indictment. Creek v. State, 24 Ind. 151.

It is not proper to inquire as to the amount of evidence on which the grand jury acted. Stewart v. State, 24 Ind. 142.

If the indictment is not signed by the prosecuting attorney, and the record does not show a return of the indictment by the grand jury, it should be quashed. Heacock v. State, 42 Ind. 393.

An indictment may be signed by a special or deputy prosecuting attorney. Dukes v. State, 11 Ind. 557; Stout v. State, 93 Ind. 150; Taylor v. State, 113 Ind. 471.

The name of the prosecuting attorney printed to an indictment will be sufficient. Hamilton v. State, 103 Ind. 96.

If an indictment is not indorsed by the foreman of the grand jury, it should be quashed. Johnson v. State, 23 Ind. 32; Strange v. State, 110 Ind. 354.

See Reeves v. State, 84 Ind. 116.

The foreman or prosecutor may use the initials of his Christian name in making the indorsement. Wassels v. State, 26 Ind. 30; Vanderkarr v. State, 51 Ind. 91.

Mistake of the foreman in making the indorsement at the wrong place on the indictment will be immaterial. State v. Bowman, 103 Ind. 69.

The indictment must be indorsed by the foreman as "a true bill," or it will be quashed. State v. Buntin, 123 Ind. 124; Cooper v. State, 79 Ind. 206.

The name of the foreman on the indictment will be presumed correct although it varies from his name in the record. Dietz v. State, 123 Ind. 85.

The record, outside of the indictment, need not show the indorsements on the indictment. Beard v. State, 57 Ind. 8.

The indorsements on an indictment should be made a part of the record by a bill of exceptions. Bowe v. State, 25 Ind. 415; Clare v. State, 68 Ind. 17. See Beard v. State, 57 Ind. 8.

1739. (1670.) Court compels signatures and indorsements.-97. As soon as the grand jury has returned an indictment into court, the judge must examine it; and if the foreman have neglected to indorse it "A true bill," with his name signed thereto, or if the prosecuting attorney have neglected to sign his name, the court must cause the foreman to indorse it or the prosecuting attorney to sign it, as the case may require, in the presence of the jury.

A variance in the name on the indictment as foreman, and the name given in the record as foreman, will be immaterial, as it will be presumed that the court inspected the indictment and required the proper indorsement. Deitz v. State, 123 Ind. 85.

As to what are sufficient record entries showing a return and identification of indictments, see Wall v. State, 23 Ind. 150; Bailey v. State, 39 Ind. 438; Beavers v. State, 58 Ind. 530; Mitchell v. State, 63 Ind. 276; Clare v. State, 68 Ind. 17; Powers v. State, 87 Ind. 144; Stout v. State, 93 Ind. 150; Heath v. State, 101 Ind. 512; Epps v. State, 102 Ind. 539; Padgett v. State, 103 Ind. 550; Walter v. State, 105 Ind. 589; Henning *. State, 106 Ind. 386; Mergentheim v. State, 107 Ind. 567; Ford v. State, 112 Ind. 373.

1740. (1671.) Witnesses' names.-98. When an indictment is presented by the grand jury, the names of all the material witnesses must be indorsed upon the indictment; but other witnesses may afterward be subpoenaed by the state; but unless the names of such witnesses be indorsed on the indictment at the time it is presented, no continuance shall be granted to the state on account of the absence of any witness whose name is not thus endorsed.

The only effect of not indorsing the names of the witnesses on the indictment is to prevent the state from obtaining a continuance for such witnesses. Short v. State, 63

Ind. 376.

1741. (1672.) Record of indictment.-99. As soon as an indictment is presented and examined by the court, or information filed, the clerk shall indorse thereon the date of such filing or presentation; and he shall then record such indictment or information, with its indorsements, in a record-book to be kept for that purpose, and the clerk, before the last day of the term at which the same are presented, must compare the record with the original indictment or information and certify to the correctness thereof.

Indictments should be recorded in the court where found, and not in the court to which the venue is changed. Reed v. State, 8 Ind. 200.

Indictments need not be recorded in the order-book. Heath v. State, 101 Ind. 512. The file mark of the clerk on the indictment is prima facie evidence of the filing. State v. Matthews, 129 Ind. 281.

1742. (1673.) Nolle prosequi.-100. No indictment shall be nonprossed or information dismissed except by order of the court on motion of the prosecuting attorney; and such motion must be in writing, and the reasons therefor must be stated in such motion and read in open court before such order is made; and the mere number of indictments against the same person shall not be a cause for non-prossing said indictments.

Where two are indicted jointly, there may be a nol. pros. as to one and a trial and conviction of the other. State v. Woulfe, 58 Ind. 17.

Where, after the jury is sworn, it is discovered that the indictment is so defective that a verdict would be voidable, a nol. pros. may be entered; and this will not bar another prosecution. Joy v. State, 14 Ind. 139.

When the state elects to prosecute on only a part of the counts the other counts may be nollied. Joy v. State, 14 Ind. 139; Hensley v. State, 107 Ind. 587.

When a cause is unconditionally stricken from the docket, it will amount to a nolle. Kistler v. State, 64 Ind. 371.

Entering a nolle after jeopardy has attached will work an acquittal of the defendant. Joy v. State, 14 Ind. 139; Halloran v. State, 80 Ind. 586.

The prosecuting attorney can not, even with the approval of the court, make an agreement, that will bind the state, to enter a nolle at some future period. State v. Bain, 112 Ind 335.

1743. (1674.) Lost indictment.-101. Whenever an indictment is lost, mislaid, stolen, or destroyed, and the same shall have been recorded and certified, such record, or a copy thereof, certified to be a true copy by the clerk of the court to which such indictment was presented, shall be sufficient evidence of the finding of said indictment and the contents thereof; and the defendant may be tried upon such copy, and the trial thereon shall proceed and be determined in the same manner, and have the same binding force and effect, as if the original indictment were present, without any delay from that cause. If an indictment is lost or destroyed, and there is no record thereof, the defendant can not be put upon trial on such indictment. Buckner v. State, 56 Ind. 208; Buckner t. State, 56 Ind. 210.