delivered the following opinion:
It cannot be collected from the charge, that the Judge gave an opinion to the Jury, whether any matter of fact was sufficiently proved or not. After summing up the circumstances attending the conduct of the prisoner, while at the witness’s house, as described by the witness, the Judge remarks, that it was probable the prisoner had some intention, and that the Jury must ascertain whether he had or not, and if he had, what that intention was, and what effect it would have in the cause.
It was proper that those circumstances should have .been distinctly presented to the view of the Jury, that they might consider what, inference, they warranted, either of the prisoner’s innocence or guilt; and if the Judge had instructed them that from these circumstances they ought to infer either guilt or innocence, it would have been a departure from his prescribed duty. But this is *178cautiously and properly avoided, and the evidence is left without influence to the Jury to decide, whether it established the fact for which it was adduced.
The first reason in arrest is, that.there is no sufficient description of the place, where the assault is alleged to have been committed by the prisoner. But the indictment states the prisoner to have been late of Bladen county, and in the same sentence states, that the assault was committed in the county aforesaid. If the county had been stated in the margin alone, and but one county named in this case, the words, “ county aforesaid,” have sufficient reference to the county, in the margin — (t Saund. 308, note 1.) The second reason in arrest, is equally untenable, for, in capital cases, the issue is immaterial, for the plea and the joining of issue called the similiter, are ore tenus, nor is it usual to make up a formal issue, preparatory to the trial, or to consider tho total omission of the similiter, as sufficient to invalidate the proceedings. — (4 Burr. 2084.) This peculiarity arises from the nature of tho trial, in its origin, which was considered in the maimer of an inquisition, charging the Jury to enquire into the truth of the charge against tho prisoner.
It is complained of, that the prisoner moved the Court for leave to withdraw his plea of not guilty, and to plead in abatement, or to add a plea in abatement, to the plea of not guilty, which the Court refused. This, however, was a.subject altogether within the discretion of the Court, and could not be claimed as a matter of right, for w hen the prisoner had once pleaded, he was bound to abide by the defence he had chosen. An act done in the exercise of a legal discretion, is not the subject of appeal to this Court.
Whether the objection that one of the Grand Jury had been on the Jury of Inquest, would have been valid, if made, at a proper stage of the case, it is not necessary to decide ¡ for it has heretofore been adjudged that such am *179exception cannot be taken after conviction, (State v. McIntyre, 2 Law Rep.)
The objection that the record does not state, that the Grand Jury was drawn from (he original panel returned to Bladen Superior Court, cannot prevail. The record transmitted to this Court, informs us, that the Grand Jury in (lie Superior Court were drawn, sworn, and. charged. From what could they be drawn, except from the list of the original venire? But independently of this» the record states, that the Grand Jury returned into Court the indictment, and so much credit is due to the Court that it must be believed that the Grand Jury was selected in the manner appointed by Law. It is not necessary that the record should state the formula and process by which the Grand Jury is constituted. Being a Grand Jury, we must understand that they were constituted such by the means, and through the ceremony, required by law. For if they were not so constituted, the objection is, at least, as serious as some of .the others ta-llen to "the conviction, and would, in all probability, have been made by way of affirmation on the part of the prisoner, and been established by proof of the fact.
The remaining objection is, that, relative to the summoning of the talesmen, and is divided into three partsj 1st, that the order did .not direct the Sheriff to summon bystanders, and ihe Jurors so called, were not summoned from among the bystanders ; 2d, because the order was not made returnable the same day on which it was issued, but the next day j 3d, because the order directed the Sheriff to summon too groat a number of persons, six ©f the original panel having appeared.
1st. The order directed the Sheriff to summon good and lawful men, and if the order had been disobeyed, the Sheriff was answerable to the Court; hut if the persons attended, the calling them into Court was a sufficient summoning; they were then bound to serve, and were also qualified, although they had been called from a dis-*180tancé. "Whether the Court could lawfully have fined them, for that they were not about the Court-House when summoned, is another consideration. But being assembled there, there is nothing in .the law to prevent them from being lawful talesmen.
2dly. The law does not require the order to he returnable the same day, it only requires (lie talesmen to be every day discharged. The time when they are summoned, docs not enter into their quali filiation to serve, though if may operate on the' mind of the Court not to enforce their service..
Sdly. Seventy-five talesmen were, directed to be summoned 5 and as the law is silent with respect to the number, it unavoidably belongs to the discretion of the Court to specify the number that it may deem necessary: or; if the Court make no direction, to leave if to the Sheriff to summon the number lie may think necessary. In a capital case, where the Prisoner has thirty-five peremptory challenges, and an unlimited number for cause, the number summoned seems reasonable; more especially, in a case, where the Prisoner had sworn that unfounded reports, tending to inflame the public mind, had fyeen in circulation in 1 he county, whence the cause was removed, and that a large number of freeholders had formed and expressed an opinion unfavorable to him. It. was extremely probable, that this prejudice and excitement would extend into the county where he was tried, and. thereby disqualify many of the persons who were summoned from serving. It was therefore every way proper, ‘that a large number should be summoned. I am consequently of opinion, that the motion for a new trial, and the reasons in arrest, of judgment, were properly overruled, and that there is no error in the record transmitted to this Court.
I will subjoin a few remarks, to the Tory satisfactory opinion delivered by the Chief-Justice. First, on the objection, allowing it had been taken at the *181proper time, that one of the Grand Jurors who found the bill, was also one of the Jurors who composed the Coroner’s inquest. Second, that the tales Jurors were directed to be summoned from the county of Columbus.
It is undoubtedly good cause of challenge to one offered as a Traverse Juror, that he was one of the the Jurors which composed the Coroner’s inquest, or the Grand Jury which had found the bill, for he had both formed and expressed an opinion on the subject 5 but it does not follow that it is a cause of challenge to a Grand Juror, or matter which should abate the indictment, that he formed one of the Coroner’s inquest, or had formed one of a Grand Jury which had found a bill for the same offence, or even in the very same words j for it Seems that a prisoner may, at least in England, be tried on the Coroner’s inquisition, and it is now the daily practice to send other bills of indictment, for the same offence, to the same Grand Jury which found the first, and to try the accused on either $ it would, therefore, seem, if this objection prevails, that if one of the Grand Jurors, which found the bill had, before, been one of another accusing Jury, that the accusation would be bad; but if the bill was found by all the persons composing the Jury which found the first bill, that is, the same Jury, or the same persons organized into another Jury, that the accusations would be good. No authorities in point, wTere produced on tiie trial, and none referred to. I except Selfridge’s trial which I have not been able to procure, and I imagine but few can be found on the subject, for I think that the principle is so firmly fixed by the practice stated above, that it has seldom been attempted. In my opinion, therefore, it would have been useless for the Judge to have permitted the plea to be withdrawn, that the prisoner might bring the fact before him.
I think that the other objection, that the tales was awarded of the freeholders of Columbus county, is equal-*182]y unfounded; for I believe, that upon the true construction of our Statutes, on the subject of Jurors, the tales should come'from the same county from which the panel cam0 . more especially in local actions. And this opinion is formed both from the words and spirit of our several acts, and not on a criticism on the word tales. But if others than the freeholders of Columbus had been competent Jurors, it does not follow therefrom, thaithey were incompetent, or that the array should be challenged. It is the right and privilege of the prisoner, that the Jury should come -de vicineto, now de comitutu, not that they should come from tire State at large, even if any freeholder of the State was a competent Juror. I mean to say, that if the law required (he Jurors should come from a particular county, to try the prisoner, it is his .privilege that the Jury should come from that county, and ho may avail' himself of it by challenge; but if . other persons than freeholders of Columbus, were competent Jurors, it is no cause of challenge that they did not compose part of the original or tales panel. The persons offered were competent Jurors, although others might be so also. Challenge is not given to the prisoner that lie should have a particular individual on his Jury; but that he should not have one against whom he had an objection. The motion for a new trial, and motion in am-st, must be overruled, and judgment given for the State.