Opinion
December Term, 1856.
Where a record shows that a grand jury was drawn and empannelled, sworn and charged to enquire for the State, of and concerning all offences, c., and by such grand jury, "it was presented in manner and form following, that is to say," setting out the bill of indictment, the record is sufficient without copying the entry of "a true bill," usually found on the books of indictments.
This was a TRIAL for MURDER, tried before SAUNDERS, J., at the Fall Term, 1856, of Wake Superior Court.
The prisoner was found guilty of murder, and a motion was made in arrest of judgment, but upon what grounds the record does not show. The motion was overruled and the prisoner appealed. In this Court the prisoner's counsel moved in arrest, upon the ground that it does not appear from the record that the bill of indictment, upon which the prisoner was tried, was found by a grand jury to be a true bill.
That part of the record pertaining to this point, is so fully recited in the opinion of the Court, that it is not deemed necessary to set it forth here.
Attorney General (Bailey) for the State.
Miller, G. W. Haywood, and Husted, for defendant.
The prisoner's counsel moved to arrest the judgment upon the ground that it does not appear from the record that the bill of indictment was found by the grand jury a true bill; and he insists that, for aught that appears, the prisoner may have been arraigned and tried upon an indictment which had never been passed on by a grand jury.
We think it does appear from the record, without the aid of any presumption, or intendment, that the indictment was passed on by the grand jury, and a true bill found. The record states, "and thereupon by the oath of (18 persons, naming them,) "good and lawful men, of the County aforesaid, then and there drawn from the said venire, and then and there empannelled and sworn, and charged to enquire for the State, of, and concerning, all crimes and offences committed within the body of the said County, it is presented in manner and form following: that is to say," setting out the bill of indictment at large.
The manner of presenting a bill of indictment is, for the grand jury, after having examined the witnesses on the part of the State, touching the allegations set out in the indictment, to come into open Court and return the bill endorsed "A true bill," which is done by the foreman, acting for the grand jury, and the return is made in their presence. If the grand jury do not pass the bill, they refuse to present it, which is signified by the endorsement made by the foreman, "Not found," or "Not a true bill," or "Ignoramus."
It is not necessary that the record should set out the manner in which a bill of indictment was presented, or the evidence and memoranda, and entries, from which the record was made up. It is sufficient, and most proper, that the record should only set out the fact that it was presented by the grand jury. This avoids all that useless detail with which records are frequently encumbered ; such as, who was appointed foreman, the signature of the foreman, the signature of the attorney for the State, what witnesses were sworn and sent, and (as we find, in many cases, by an examination of the files of the Court,) who was the constable of the grand jury. Such matters constitute no part of the record, but are minutes from which the record is made up. State v. Collins, 3 Dev. 117; State v. Calhoun, 1 Dev. and Bat. 376; State v. Roberts, 2 Dev. and Bat. 540.
The form of the record in this case is taken from "Eaton's forms." It is a "concise, legal and logical statement" of all that constitutes the record, or properly makes a part of it, and Mr. Eaton is entitled to the thanks of the public for its introduction. It was used in State v. Peace, 1 Jones' Rep. 250, (June Term, 1854) and passed without objection, and judgment was pronounced on the prisoner. It is taken from the appendix, 4 Black. Com., and is the form used in England.
It was insisted by the prisoner's counsel that the matter set out in this record is a presentment as distinguished from an indictment, in the sense in which these words are used in the Declaration of Rights, sec. 8. — "That no freeman shall be put to answer any criminal charge, but by indictment, presentment or impeachment," and that the trial and proceedings upon the matter set out in this record were illegal and in violation of the act of 1797, which provides — "No man shall be arrested, or charged before any Court, on a presentment made by a grand jury, before the attorney acting for the State shall prepare a bill, and the bill be found by the grand jury to be a true bill."
The distinction between an indictment and a presentment is this — an indictment was a charge of some criminal offence, formerly drawn up by an attorney for the crown,(or State,) and found by a grand jury, upon the oath of witnesses, and presented by the grand jury to the Court. A presentment was a charge of some criminal offence drawn up by the grand jury, not usually with much attention to the necessary averments, and found upon the testimony of some of their own body, and presented by the grand jury to the Court. The object of the 8th section of the Declaration of Rights was to forbid the practice of putting persons to answer a criminal charge upon informations made by the officer for the crown, without the intervention of a grand jury. Prior to the act of 1797, it was found that the "presentments" made by the grand juries were frequently so informal that a trial could not be had upon them, and very frequently the presentment would set out a matter which was not a criminal offence; so that sometimes the citizen was arrested and greatly oppressed when he had committed no violation of the public law, and oftentimes he was put to the trouble and expense of a trial, when, if the public law had been violated, the charge was made without the averments necessary to insure certainty in judicial proceedings, and it was necessary to enter a nol. pros. and send a bill of indictment. To remedy these writs, the act of 1797 was passed, but it made no change in the distinction between an indictment and a presentment. They were both presented by a grand jury, and, in a general sense, "presentments" of the grand jury; but the matter set out in this record is, to all intents and purposes, as much a bill of indictment since that act as it was before.
This question is discussed in State v. Roberts, ubi supra, where it is said, "The act of 1797 does not require any change in the form of the entry in the case of an indictment, c." There is no error.
PER CURIAM. Judgment affirmed.