The indictment against the defendants in this case was for misconduct as election officers at an election held in Florida for a representative to congress, in stuffing the ballot-box with fraudulent tickets, and abstracting tickets which had been voted. In impaneling the grand jury which found the indictment, four persons, otherwise competent, were excluded from the panel for the causes mentioned in section 820 of the Revised Statutes, which grounds are, in substance, voluntarily taking part in the rebellion, and giving aid and comfort thereto. The exclusion of these persons for this cause appears by an amendment of the record, made nune pro tunc, showing what took place; but no objection was taken to the indictment or proceedings on that account until after a plea of not guilty, and a conviction, when the objection was first taken on motion in arrest of judgment. The indictment was founded upon sections 5512 and 5515 of the Revised Statutes, and the constitutionality of those sections was called in question, as well as that of section 820. The judges having disagreed upon the motion in arrest of judgment, certified up the following questions for the determination of this court, namely:
(1) Whether sections 5512 and 5515 of the Revised Statutes of the United States, on which such indictment was founded, are repugnant to and in violation of the constitution of the United States; (2) whether section 820 of the Revised Statutes of the United States is repugnant to and in violation of the constitution of the United States; (3) whether judgment of this court could be rendered against the defendants on an indictment found by a grand jury impaneled and sworn under the section aforesaid; and (4) whether the indictment aforesaid charges any offense for which judgment could be rendered against the defendants in this court under the constitution and laws of the United States.
The question of the validity of sections 5512 and 5515 has already been decided by this court in the cases of Siebold and Clarke, 100 U.S. 371 and 399, and was determined in favor of their validity. As to those sections, therefore, the answer must be in the negative, namely, that they are not repugnant to, nor in violation of, the constitution of the United States.
The second question, as to the constitutionality of the 820th section of the Revised Statutes, which disqualifies a person as a juror if he voluntarily took any part in the rebellion, is not an essential one in the case; inasmuch as, by pleading not guilty to the indictment and going to trial without making any objection to the mode of selecting the grand jury, such objection was waived. The defendants should either have moved to quash the indictment or have pleaded in abatement, if they had no opportunity, or did not see fit, to challenge the array. This, we think, is the true doctrine in cases where the objection does not go to the subversion of all the proceedings taken in impaneling and swearing the grand jury, but relates only to the qualification or disqualification of certain persons sworn upon the jury or excluded therefrom, or to mere irregularities in constituting the panel. We have no inexorable statute making the whole proceedings void for any such irregularities.
Chitty, in his work on Criminal Law, (vol. 1, p. 307,) says:
'It is perfectly clear that all persons serving upon the grand jury must be good and lawful men; by which it is intended that they must be liege subjects of the king, and neither aliens nor persons outlawed even in a civil action; attainted of any treason or felony; or convicted of any species of crimen falsi, as conspiracy or perjury, which may render them infamous. And if a man who lies under any of these disqualifications be returned, he may be challenged by the prisoner before the bill is presented; or, if it be discovered after the finding, the defendant may plead it in avoidance, and answer over to the felony; for which purpose he may be allowed the assistance of counsel, on producing in court the record of the outlawry, attainder, or conviction on which the incompetence of the juryman rests.'
This is, undoubtedly, the general rule as to the manner in which objection may be taken to the personnel of the grand jury, though in this country a motion to quash the indictment may be made instead of pleading specially in abatement. The requirement of answering over to the felony in connection with the plea in abatement is for the benefit of the accused, in order that he may not be concluded on the merits, if he should fail in sustaining his special plea,-a precaution which probably would not be necessary in our practice.