Mr. Justice Fraser

(concurring in the result) : The petitioner had a difficulty with one John C. Nicholson, in the town of Leesville, in Lexington County. In that difficulty the petitioner inflicted wounds upon Nicholson that were mortal. Nicholson was carried to a hospital in Columbia, in Richland County, where in a short time he died from the said wounds. The coroner of Lexington County held an inquest in Lexington County, in which they found that the deceased came to his death from wounds inflicted by the petitioner. Mr. Justice Watts of this Court heard and granted an application for bail, and made the bond conditioned for the petitioner’s appearance in the Court of Lexington County. The grand jury for Lexington County presented the petitioner for murder, and called upon the Solicitor to prepare a formal indictment. This the Solicitor declined to do, under instructions from his superior officer, the Attorney General, as it was determined by the prosecuting officers to try the case in Richland County. The grand jury for Richland' County took up the matter, and made a presentment to the Court of General Sessions for Richland County, in which they protested against the prosecution of the petitioner in Richland County. The presiding Judge overruled their protest and ordered them to consider the bill. In obedience to this order, they passed upon the bill and found a true bill. The presiding Judge of the Rich-land Court, on ascertaining that the petitioner would not appear at the Richland Court, issued a bench warrant for him, and he was arrested and placed in the Richland jail to await his trial in Richland County.

The State did not appeal from the order of Mr. Justice Watts, and it is the law of this case. No Court or Judge *99 had the right to order the rearrest of the petitioner until he has failed to comply with the order of Mr. Justice Watts. There is no intimation in the record that the petitioner has in any way failed to comply with this order. The petitioner has made application to this Court for his discharge from the custody of the Sheriff of Richland County. It is a serious thing to rearrest one, for the same offense, who has been admitted to bail under habeas corpus proceedings, before he has violated the terms of the order under which he was admitted to bail. There was an honest mistake 'and misapprehension as to the law, and no one is to blame.

The mistake arises from a misapprehension of the powers and duties of the grand jury. The duties of the grand jury are twofold-: Without fear or favor they are first to present those^who, in their untrammeled judgment, should be presented; and, second, they are to refrain from presenting those who in their judgment should not be presented. These two duties are of equal importance. When the grand jury of Lexington County presented the petitioner he was by that fact indicted in Lexington. In the argument it was said the Solicitor did not act upon the Lexington presentment. The grand jury indicts, not the Solicitor.

It is the duty of the Solicitor to put the indictment of the grand jury in proper- legal form. It would doubtless be unsafe to go to trial upon such an informal indictment of a grand jury. The indictment is the official act of the grand jury and not of the Solicitor. It lies in no man’s mouth to tell the grand jury of the county that they shall not present one who, in their judgment, should be indicted. They may indict the Solicitor himself, if in their judgment, the public interest demanded his indictment.

The power and duty to refrain from indicting those who, in their judgment, should not be indicted, is equally absolute and of equal advantage to the people. The indictment by the Richland grand jury, after and over their *100 protest, was void. We have before us a case in which the petitioner is held to bail in Lexington County, under valid proceedings. We have the petitioner rearrested in Richland County, under proceedings that are void. The result is inevitable to return the petitioner to the custody of his bail, and he shall remain in that custody until he has failed to obey those proceedings, or is surrendered by his bail.

We are asked to pass upon the constitutionality of the act that in a proper case would give ■ Richland County jurisdiction to try the case. It is evident that the decision is not necessary, and the. question in this case academic.

The opinion of the Court was delivered by

The constitutionality of Section 147 of the- Criminal Code was directly in issue in the case of State v. McCoobmer, 79 S. C., 63; 60 S. E., 237, and by the solemn adjudication of this Court was unanimously sustained. We are not disposed to reopen the question, particularly as a decision upon the constitutionality of the section is not necessary to a determination of this matter.

The inquest was held in Lexington County; a warrant was issued for the arrest of the petitioner by the coroner of Lexington County; he was arrested under that warrant, and committed to the jail of Lexington County; a petition for a writ of habeas corpus was filed in Lexington County; it was opposed by the Solicitor of the circuit of which Lexington County is a part; an order admitting the petitioner to bail and requiring him to give bond for his appearance at the next term of the Court of General Sessions for Lexington County was signed by a justice of this Court; the bond was accordingly executed by the petitioner, and approved by and filed with the Clerk of Court of Lexington County. The Court of Lexington County has therefore assumed exclusive jurisdiction of the case against the petitioner.

The entire proceedings by which it was sought to arrest the petitioner and hold him to trial in Richland County are annulled and the bond executed by the petitioner under a previous order of three of the Justices of this Court in the present proceeding is directed to be cancelled by the' Clerk of this Court. The Reporter will incorporate in the report of this proceeding the very clear and complete statement *98 of the facts contained in the argument for the petitioner by Mr. Timmerman.