Opinion
No. 27074.
October 8, 1928.
1. CRIMINAL LAW. Indictment and information. Claimed defect in indictment as not properly signed can only be reached on motion to quash and is not available for first time on appeal ( Hemingway's Code 1927, sections 1229, 1235).
Under Code 1906, section 1413 (Hemingway's Code 1927, section 1229), relative to irregularity or informality in pleadings or proceedings, claimed defect in indictment as not signed by foreman of grand jury, as required by Code 1906, section 1418 (Hemingway's Code 1927, section 1235), because of fact that indorsement on back thereof was by Prentiss Furr rather than by W.P. Furr, could only have been reached by motion to quash, and is not available for the first time on appeal.
2. INDICTMENT AND INFORMATION. Return of indictment in connection with regularity on its face and clerk's indorsement was sufficient evidence that it had been properly found.
Return of indictment into court by grand jury in connection with regularity on its face and indorsement of its filing by the clerk on its back constitutes sufficient evidence that it had been properly found and returned by grand jury.
APPEAL from circuit court of Lincoln county, HON. E.J. SIMMONS, Judge.
Naul Yawn, for appellant.
W.P. Furr, the duly appointed and qualified foreman of the grand jury, did not indorse his name on the indictment nor was his name indorsed thereon as foreman, but the name of Prentiss Furr was indorsed thereon. Said indictment is therefore invalid, illegal, a nullity, not being legally presented. Sec. 1235 of Hemingway's 1927 Code.
Jas. W. Cassedy, Jr., Assistant Attorney-General, for the state.
I deem it necessary only to refer the court to the fact that the record recites that the grand jury returned into open court, and in the presence of at least twelve of their number and upon their oaths and through their foreman, the indictment numbered one which is the indictment as shown on page 54 of the record. The indorser "Prentiss Furr" must be presumed to be the same person as W.P. Furr, who was appointed and sworn as foreman of the grand jury, as no objections were made to the indictment in the lower court and this objection is made now for the first time in the supreme court. Sec. 1229 of Hemingway's Code of 1927; Chandler v. State, 143 Miss. 312, 108 So. 723; Smith v. State, 58 Miss. 867; Cooper v. State, 59 Miss. 267; Holland v. State, 60 Miss. 939; Easterling v. State, 35 Miss. 210; Friar v. State, 3 How. (Miss.) 422; Peter v. State, 3 How. (Miss.) 433; Wingo v. State, 91 Miss. 865, 45 So. 862; Collins v. State, 148 Miss. 250.
Argued orally by J.A. Naul, for appellant, and James W. Cassedy, Jr., Assistant Attorney-General, for the state.
Appellant was indicted and tried in the circuit court of Lincoln county on a charge of the murder of her husband, Ephram Wilcher, and convicted of manslaughter, and was by the court sentenced to the penitentiary for a term of two years. From that judgment, she prosecutes this appeal.
Appellant makes the contention, for the first time, in this court, that the indictment was void because the name of the foreman of the grand jury which found and presented the indictment was not entered thereon.
Section 1418, Code of 1906 (section 1235, Hemingway's 1927 Code), provides, among other things, that:
"All indictments must be presented to the court by the foreman of the grand jury, with his name indorsed thereon."
W.P. Furr was foreman of the grand jury which found and presented the indictment against appellant. There was indorsed on the back of the indictment the following:
"A true bill. Prentiss Furr, Foreman Grand Jury."
Following that indorsement there appears the names of the witnesses, and following their names there appears the following:
"Filed this the 5 day of Jan., 1928, R. Lee Moak, Clerk. Recorded 5 day of Jan., 1928, R. Lee Moak, Clerk."
The minutes of the court at which the indictment was found and returned showed that W.P. Furr was appointed and sworn as foreman of the grand jury. The minutes show, further, the following:
"The grand jurors of the state of Mississippi, taken from the body of the good and lawful men of Lincoln county, Miss., duly elected, impaneled, sworn and charged to inquire into and true presentments make, came into open court, there being then and there, at least, twelve of their number present, and upon their oaths and through their foreman, presented the following true bills of indictment to the court, to-wit: Numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, which were received by the court and entered and filed by the clerk in the presence of the said grand jury."
It will be seen that among the indictments enumerated in the minutes of the court was indictment No. 1, which was the number of the indictment against appellant. The indictment against appellant was signed by the district attorney.
Section 1413, Code of 1906 (section 1229, Hemingway's 1927 Code), provides as follows:
"A person shall not be acquitted or discharged in a criminal case before verdict, for any irregularity or informality in the pleadings or proceedings; nor shall any verdict or judgment be arrested, reversed, or annulled after the same is rendered, for any defect or omission in any jury, either grand or petit, or for any other defect of form which might have been taken advantage of before verdict, and which shall not have been so taken advantage of."
The indictment appears to be valid on its face. Under the statute, the claimed defect in the indictment could only have been reached by motion to quash. Appellant made no motion to quash the indictment. Chandler v. State, 143 Miss. 312, 108 So. 723.
Furthermore, if a motion had been made to quash the indictment, it should have been overruled. The return of the indictment into court by the grand jury, in connection with its regularity on its face and the indorsement of its filing by the clerk on its back, was sufficient evidence that it had been properly found and returned by the grand jury. Smith v. State, 58 Miss. 867; Holland v. State, 60 Miss. 939.
In Easterling v. State, 35 Miss. 210, one of the grounds of the motion to quash the indictment was that it was not indorsed "a true bill" by Lazarus J. Jones, who was foreman of the grand jury. There was indorsed on the back of the indictment, "A true bill. L.J. Jones." The court said, among other things:
"Although the name of the foreman was Lazarus J. Jones, yet it was competent for him to indorse the bill under his signature of L.J. Jones."
In Peter v. State, 3 How. (Miss.) 433, an objection was made to the indictment that the grand juror indorsing it as foreman was not shown to have been appointed by the court as such foreman. Responding to the objection, the court said:
"To this we answer, that the record shows that the indictment was found and returned into court by the whole panel of the jury, and this is sufficient."
Appellant argues that the evidence was insufficient to sustain the conviction; that, therefore, the court should have directed a verdict of not guilty. We think there was ample evidence, consisting of physical facts and circumstances which were contradictory of appellant's direct testimony, to make the question of her guilt one for the jury.
Affirmed.