¶1By the Court —
¶2delivering the opinion.
¶3The question in this case is, whether when a case is tried upon an indictment, founded upon a special presentment of the -grand jury, the States’ attorney is bound to read to the traverse jury, the special presentment, as an indispensable part of the proof in the case; and failing to do so, the defendant is entitled to a verdict of acquittal or a new trial ?
¶4It is conceded that the party is tried upon the indictment and not upon the presentment. When the defendant is arraigned, it is upon the indictment. It is endorsed upon the back of the indictment by the State’s counsel, that it is founded upon a special presentment of the grand-jury, and this is required to be done by the code. Before pleading to the indictment, the defendant is entitled to inspect the presentment, and take ai^r exception apparent upon the'face of the proceedings; as for instance, that the indictment does not correspond with the presentment; and is not supported by it; that it charges another and a different offence, or no of-fence at all; and if this be true, it will be good in arrest of judgment, even after conviction. But this is an exception to be decided by the Court and constitutes no part of the issue submitted to the jury. Guilty, or not guilty, is the only issue referred to the jury.
¶5Suppose it be true, that the presentment is for one offence and the indictment for another, the Court and not the jury, will pronounce judgment in the premises.
¶6Was it ever known or heard of, that where the foreman’s name is indorsed upon a bill found by the jury, that the fact of whether or not a competent jury passed upon the indict*309ment, had to be proven to the jury ? We apprehend not And under the code, the indorsement of the Solicitor General in this case is equivalent to that of the foreman, where the jury act directly upon the indictment.
¶7Let it be noticed too, that the fact that there was a sufficient presentment to authorize the indictment, is not controverted. A copy is before us as a part of the record. The' only complaint is, that it was not read to the petit jury as a necessary part of the testimony. It was not necessary that it should have been. It constituted a part of the pleadings, but not of the proof in the case.
¶8Judgment affirmed.