¶1After much deliberation we are of opinion that in this case the grand juror is not a witness, though as to the case of perjury we think differently.
¶2After another argument it was decided that a juror might swear to these facts, however, vis.: that Lewis charged Mr. Wallace before the juror with this crime out of' the juryroom and before he was examined; that Lewis, was sworn before the grand jury; that the usual memorandum containing the names of Lewis *610and Riley as witnesses on the indictment against Wallace was sent up to the jury, the loss of that memorandum having been first proved by Harper, the clerk, on oath.
¶3Thomas Clayton moved to strike out Bell’s testimony, a grand juror who had given in all his evidence before the exception was taken. The counsel for the State opposed, and the Court decided that the objection came too late. (Sed vide 2 Esp.N.P. 346, N.Y. ed.,
¶4The jury were out about seven hours, and verdict not guilty.
¶5This reference and the next following reference to Esp. N. P. are to the first "Gould edition,” 2 vols., New York, 1811.
¶6 Footnote by Clayton, “For the prisoner’s objection, 1 Macnal. Ev. 146; yet such objections in criminal cases are always allowed, and so I think the Court was wrong.”