Opinion
(27 November, 1900.)
INDICTMENT — Murder — Degree — Grand Jury — Demurrer — Homicide — Bill of indictment — Criminal Law.
Where an indictment charges murder, the grand jury have no power to return it for murder in the second degree.
INDICTMENT against D. A. Ewing, heard by Judge H. R. Bryan, at October Term, 1900, of MONTGOMERY.
Indictment for murder: "The jurors for the State," etc., "present: That D. A. Ewing, late of the county of Montgomery, State of North Carolina, on 17 March, 1899, at and in said county and State, with force and arms feloniously, wilfully, and of his malice aforethought did kill and murder one James Stewart, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State." Upon said bill was the indorsement: "A true bill for murder in the second degree." The defendant, before plea, moved to quash the bill upon the ground that the grand jury had no right to find the bill as indorsed. Overruled. Defendant excepted. Defendant then moved to quash upon the grounds set forth in certain affidavits filed, to which the State (556) replied, and the Judge found the following facts: "The defendant in this case having moved to quash the bill of indictment for causes set out in affidavits submitted to the Court, to which counter affidavits were submitted, the Court finds the following facts: (1) That Wiley Rush, Solicitor, was informed by the foreman of the grand jury, about the time the bill was being considered, that the defendant had some relatives who were members of the grand jury. That the Solicitor then told the foreman that he could excuse any relatives of the defendant if they so desired during the consideration of the bill. (2) That the foreman, in pursuance of such information from the Solicitor, and after one member of the grand jury had asked to be excused for the reason that he was related to the defendant, said to said member that he might be excused, and to the body of the grand jury that any member related to the defendant might excuse himself, whereupon said member who had spoken to the foreman and two other members excused themselves, and left the jury room. That no member was excluded otherwise than above stated. (3) That the name of Silas Robinson was indorsed upon the bill of indictment by the foreman by the direction of the Solicitor after the bill had gone into the hands of the foreman, and by direction of Solicitor was called and examined. (4) That said bill was brought into open court by the foreman alone. Upon this the Court refused the motion, and defendant excepted. And upon the facts so found the defendant again moved to quash the indictment. Overruled, and defendant excepted." Defendant then demurred to the bill of indictment upon the ground that, while the bill was drawn for murder in the first degree, the grand jury found and indorsed said bill, "A true bill for murder in the second degree." (557) His Honor sustained the demurrer, and rendered judgment requiring the defendant to enter into bond of $2,000 for his appearance at the next term of Court to abide further action of the Court. The Solicitor for the State appealed.
Zeb. V. Walser, Attorney-General, for the State.
Douglass Simms, for the defendant.
CLARK and DOUGLAS, JJ., dissenting.
The bill of indictment charges in one count that the defendant "feloniously, wilfully, and of his malice aforethought did kill and murder one James Stewart," contrary, etc. The grand jury returned "A true bill for murder in the second degree." The defendant, before pleading, moved to quash the bill upon the ground that the grand jury "had no right to find the bill as indorsed upon the back thereof." Motion overruled. The Court then found the facts as set out in the record, and thereupon the defendant demurred on the ground that the bill is drawn for murder in the first degree and the grand jury have found a true bill for murder in the second degree. Demurrer sustained, and the State appealed.
We believe this question has not heretofore been before this Court, and it is probably here now by reason of Laws 1893, chap. 85. Section 1 provides that the offenses mentioned therein shall be deemed murder in the first degree. Section 2 provides that all other kinds of murder shall be deemed murder in the second degree. Section 3 provides that nothing herein contained shall be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second (558) degree. It is evident that the Legislature intended that the petit jury, and not the grand jury, should determine the degree of the offense upon the whole of the evidence. It is argued that the bill, with a single count, as in this case, contains the essential element of two counts, one in the first and one in the second degree, on the principle that the greater includes the lesser. If the grand jury is allowed upon the State's evidence alone, to fix the grade in the second degree, then the petit jury has nothing to determine except to adopt the conclusion of the grand jury, no matter what the whole evidence may disclose. It is not questioned that when the bill contains several counts the grand jury may find one count true and ignore the others, for each count contains a distinct charge, and the jury may find one true only. The law intends to punish the guilty and protect the innocent, and to that end it is necessary to adopt rules in the administration of the criminal law, and we know of none better than those developed and established by the wisdom of past ages. We are inclined to think that Laws 1893, chap. 85, is well adapted to the just administration of the criminal law and to the present conditions of society. Turning, then, to the forms, precedents, and practice, we find them uniform on the question before us, and we find no contrariant decision in any courts of the American States. Whart. Cr. Pl. and Prac. (9 Ed.), sec. 374, expresses it: "Where there are several counts, the jury can find one true and ignore the others; but, where there is only one count, they must either pass or reject the whole." Chitty on Criminal Law, 322, says: "The jury can not find one part of the same charge to be true, and another false, but they must either maintain or reject the whole; and therefore, if they indorse a bill of indictment for murder billa vera se defendo, or billa vera, for manslaughter, and not for murder, the whole will be invalid, and may be quashed on motion." So, in Archb. Cr. Pl. and Prac., 99, it is laid down: "They can not, however, find a true bill as to part of a count, and ignore the rest (559) of it." To the same effect are 1 Russ. Crimes, 312, and S. v. Wilhite, II Humph., 602. In S. v. Williams, 31 S.C. 96, the charge was an assault and rioting in one count. The jury returned a true bill as an assault, no bill as to rioting. Held, that the jury could not so find, "but must find generally on the whole charge as contained in the indictment." In S. v. Cowan, 1 Head, 280, the bill was for murder, and indorsed, "The grand jury find a true bill for manslaughter." The Court said: "The rule seems to be well established that the grand jury can not find one part of the same charge to be true and another part false, but must either maintain or reject the whole and therefore on an indictment for murder they can not find a true bill for manslaughter. This is a technical rule, but the current of authority is in support of it." S. v. Creighton, 1 Nott. and McC., 256: "Where the grand jury, on a count for riot and assault in an indictment, find A guilty of a riot, it is a partial finding of the entire count, and therefore void." Other authorities of the same import may be found. We have copied freely, because the question under our statute is practical and important. We are satisfied that due care and caution in the conduct of grand juries in discharging their duties are not always observed in the districts, and in this connection we will call attention to S. v. Brown, 81 N.C. 568, where it is held that a bill of indictment returned into Court "Not a true bill' can not be amended and reconsidered by the same grand jury, for the reasons there stated. For the foregoing reasons we think the demurrer was properly sustained.
No error.