Opinion
(December Term, 1859.)
On a motion to quash a bill of indictment on the ground that the witness on whose evidence it was found by the grand jury was not sworn in the court, the decision of the judge below, upon the facts, was Held to be conclusive, and not the subject of an appeal.
MOTION to quash bill of indictment, heard before Manly, J., at the last term of HERTFORD.
Attorney-General for the State.
D. A. Barnes for Defendant.
The motion was made upon the calling of the case and before a plea was entered by the defendant. The ground of the motion was that it did not appear any evidence was before the grand jury upon which it was found.
The evidence relied on by the State consisted of the name of a witness endorsed on the bill by the solicitor, under which were the printed words:
"The witness marked thus — sworn and sent" subscribed (21) below which was the name of the clerk of the court. There was no mark, either at the name of the witness nor at the space left for that purpose in the printed formula.
The court being of opinion that there was no sufficient evidence before him that the witness had been sworn on the bill, sustained the motion and ordered the bill to be quashed; from which judgment the solicitor appealed.
It is settled that if a bill of indictment be found without evidence, or upon illegal evidence, as upon the testimony of a witness not sworn in court, the defendant may take advantage of it by a plea in abatement, or upon a motion to quash the bill; S. v. Cain, 8 N.C. 352. But it is not a ground for arresting the judgment after a verdict upon a plea in bar; S. v. Roberts, 19 N.C. 540. Here the objection was brought forward in proper time and manner, and the only question is whether his Honor, in the court below, erred in ordering the bill to be quashed under the circumstances disclosed in the statement of the case. The Attorney-General contends that he did, upon the ground that the bill must be presumed to have been found upon legal evidence; that the burden of showing the contrary was upon the defendant, and that he failed to produce any evidence at all in support of his motion. Unfortunately for this position, it does not appear that it was taken in the court below. There it seems to have been admitted by the solicitor for the State that he was bound to show that the witnesses upon whose testimony the bill was found were sworn in court before they were sent to the grand jury. He accordingly relied upon what was endorsed upon the bill of indictment as sufficient to establish the fact. That endorsement was no part of the record and if it had been in other respects full and complete, it could not, of itself, have been received as evidence of the fact that the witnesses were sworn. It could (22) have been used only for the purpose of aiding the memory of the clerk if he had been called to testify as to the fact. S. v. Roberts, ubi supra. But, in truth, the endorsement was left incomplete, and could afford no aid whatever to the recollection of the clerk, unless to indicate to him that the witnesses had not been sworn. So far, then, as appears from the case stated, we should concur with his Honor in his finding of the fact, if we were at liberty to review his decision. But we are of opinion that, as the motion to quash was predicated upon a question of fact, which had to be passed upon in the court below, the decision of that court upon it is final and conclusive, and is not the subject of review upon an appeal to this Court.
The record does not show any error in any question of law, and as we have not the power to inquire whether there be any error in any question of fact, the judgment must be.
PER CURIAM. Affirmed.
Cited: S. v. Harwood, 60 N.C. 231; S. v. Horton, 63 N.C. 596; S. v. Harrison, 104 N.C. 732.