Roberts

Mr. Justice Terry concurred.

The appellant was indicted and convicted of the crime of murder.

The first error assigned is, that the indictment was not found by a lawfully constituted grand jury.

To support this proposition, it is alleged—First: That the sheriff who participated in the drawing of the jury, was appointed by the Judge of the County Court; admitting this, and that such appointment was void, still his acts as a de facto officer were good. This principle is too old to require argument or authority.

Second : It is said that incompetent persons were allowed to sit upon the jury; that it was composed of less than seventeen persons, by reason of the incompetency of one of them, and that less than seventeen concurred in finding the indictment.

In the case of the People v. Freeland, decided at the January term, 1856, the question arose as to the same juror whose competency is now attacked, and it was held that the declaration of a juror that he was a naturalized citizen, should be received by the Court as prima facie true, so as to supersede the necessity of proof by the actual production of his papers. The counsel for the prisoner, however, admitting the principle,…