Mesmer v. Commonwealth

Citations

• 26 Va. 976
• 26 Gratt. 976

Syllabus

<p>I. On the 18th of September 1874, S, judge of the Corporation court of W, issued his order in vacation to the clerk of the court, directing that a grand jury of ten citizens, &c., be summoned to attend the court on the 21st of September. Upon this order the clerk issued his warrant to the sergeant to summon certain grand jurors, naming them. Of the list furnished the sergeant, nine attended the court. At the September term of the court an order was entered as follows: This day came a grand jury, to wit: naming six of those who had been summoned by the sergeant; who being elected, &c. Held :</p> <p>1. It is not a valid objection to this grand jury, that the list of the jurors was not made out and delivered to the sergeant five days before the term.</p> <p>2. The statute does not require the order of the judge to be entered of record. And when it appears by the record that six were elected, &c., it must be presumed that all this was done by the direction of the court.</p> <p>3. The acts of the clerk done in the presence of the court and under its supervision, must be taken to be done by direction of court; and is the act of the court.</p> <p>4. All the statute requires is, that the number of grand jurors may be limited to six by the direction of the court. It does not require that the direction shall be matter of record.</p> <p>5. Nor is it a valid objection to the grand jury, that it was composed of six of the nine summoned by order of the court in vacation.</p> <p>II. A policeman who does not use more force than is necessary to arrest a person who is engaged in riotous and disorderly conduct, and who resists the officer, is not guilty of an assault and battery.</p>