¶1To the indictment in this case, the respondent pleaded in abatement, and the State demurred to the plea. The demurrer was sustained, and the respondent excepted.
¶2The question presented is whether, when an indictment is regularly returned into court by a grand jury and is placed in the custody of the clerk, proof of the fact that the clerk does not enter it upon the docket until after adjournment of the term is fatal to the indictment. We think it is not necessarily so.
¶3It is a common practice not to enter upon the docket indictments where the respondents have not previously been apprehended, and are not in custody, nor under bail. The practice is a necessary one; otherwise the parties indicted might be apprised of the fact, and escape before arrest. This necessity is recognized in section 8, of chapter 135 of the Revised Statutes, which provides that “no grand juror or officer of the court shall disclose that an indictment for felony has been found against any person not in custody, or under recognizance, until he is arrested, except by issuing process for his arrest.” A court docket is open to public inspection, and to enter an indictment for a felony upon the docket before an arrest has been made would be violative of this statute, unless the indicted party is in custody or under recognizance. Though the statutory prohibition extends only to indictments for felonies, the principle which it seeks to enforce applies as well to all grades of offenses.
¶4The respondent contends that it was the duty of the clerk to docket the indictment during the term, and that he had no authority to do so after adjournment. It is the general rule that the record must show that the indictment was returned into court by the grand jury, either by an entry made at the time of the return, or by an indorsement of the fact upon the indictment itself; and that in the absence oí a record entry, or of such an indorsement, the indictment will be had on plea in abatement. 10 Cyc. of Pleading and Practice, 410, and cases cited. In view of this rule, the defendant’s plea is bad. It denies that the indictment was docketed, but it does not deny the alternative requirement of indorsement by the clerk. All that is alleged in the plea may be true and yet the *546indictment may be good. On this ground, in any event, the demurrer was properly sustained.
¶5We have no necessity to discuss the authority of the clerk to docket the indictment in vacation.
¶6The exceptions must be overruled and respondeas ouster awarded. State v. Pike, 65 Maine, 111.
¶7Exceptions overruled.