85

84

81

oath contains the words omitted, as above stated, or again take up, on its own motion, a case investigated by a prior grand jury and no indictment found.82 This origination of matters by a grand jury has often occurred in respect of inquiry into conduct of public officers. No executive order, as for example an order of the President to a district attorney not to prosecute a certain person, can affect this power. There has never been any question about a grand jury entering upon the investigation of matters called to its attention by the court or submitted to it by the state's representative, and the practice of prosecuting officers in bringing their attention to certain matters is that ordinarily pursued. Thus these officers may bring into the grand jury room and deliver to the foreman indictments already drawn, which they are to find as a true bill or ignore, after witnesses have been examined. The rule seems to be that mere inquisitorial power is not limitless in a grand jury and is in a measure under the court's control, but as to things within their personal knowledge they act according to their own discretion, and in nothing whatever that they do take into consideration has the court any right to attempt to control their findings. 87 In Pennsylvania it was said that a court should not give in charge to the grand jury with a view to presentment, any case of ordinary offense, unless there is a serious public reason for invoking a grand jury's inquisitorial power.ss

88

§ 2846. Consideration of Proposed Indictments-Assistance of Prosecuting Officer.-As we have seen that investigation into alleged offenses is generally as these things are given in charge by the court or submitted by the state's officer, the procedure is by examination of witnesses produced before the body. These wit

Pa. 30; St. v. Stewart, 45 La. Ann. 1164; Charge to Grand Jury, Fed. Cas. No. 18,255, 2 Sawy. 667.

81 Oglesby v. St., 121 Ga. 602, 49 S. E. 706; St. v. Overstreet, 128 Mo. 470, 31 S. W. 35.

82 St. v. Brown, 128 Iowa, 24, 102 N. W. 799; St. v. Smith, 50 Tenn. (3 Heisk) 465.

83 Charge to Grand Jury, Fed. Cas. 18,248 (Chase, 263); Hawkins v. St., 54 Ga. 653.

84 In re Miller, Fed. Cas. No. 9,552.

85 U. S. v. Reed, Fed. Cas. 16,134 (2 Blatchf. 435); In re Lester, 77 Ga. 143; O'Hair v. People, 32 III. App. 277; Baldwin v. St., 126 Ind. 24, 25 N. E. 820.

86 Teas v. St., 7 Humph. (Tenn.) 174; St. v. Warner, 163 Mo. 413.

87 Com. v. Ridgway, 2 Ash. (Pa.) 247; Allen v. St., 61 Miss. 627; St. v. Terry, 30 Mo. 368; In re Lester, 77 Ga. 143; Charge to Grand Jury, Fed. Cas. No. 18,255 (2 Sawy. 667). 88 In re Citizen's Assn., 8 Phila.

478.

nesses were by the common law rules sworn in open court," but by various state statutes it is provided that the foreman may administer the oath.90 In the examination of these witnesses it is generally provided or regarded as settled that the state's attorney may be present and examine witnesses.91 Where witnesses have been examined the rule ordinarily is that the grand jury have the right either to pass upon the testimony of such as have been produced or they may ask that additional testimony be submitted, some courts ruling that the request is to be made to the court.92 In other courts the grand jury have the right to send for such other witnesses as may in their opinion give evidence relating to matters pending before them, but no accused nor other person has the right to insist upon giving evidence before a grand jury," and the grand jury has not the right to require an accused to appear before it.95

93

§ 2847. Deliberations and Votes of Grand Jury.-After a grand jury has heard the evidence submitted or when they are considering whether a presentment should be made, no one should be present except members of the body, as in their deliberations and votes no assistance is contemplated by any other person. The presence of an unauthorized person during the taking of evidence is generally held, in the absence of any proof of prejudice to be a mere irregularity that will not vitiate an indictment,96 while the contrary effect arises as to an unauthorized person present during their deliberations and when the votes are given." It has been ruled, however, that presence of the prosecuting attorney during deliberations and

89 Rex v. Shaftesbury, 8 How. St. Tr. 759; St. v. Butler, 8 Yerg. 83; St. v. Kilcrease, 6 S. C. 444.

90 Bird v. St., 50 Ga. 585; St. v. White, 88 N. C. 698; St. v. Green, 24 Ark. 591.

91 In re District Attorney, Fed. Cas. 3,925; Bennett v. St., 62 Ark. 516, 36 S. W. 947; Shrop v. People, 45 Ill. App. 110; St. v. Aleck, 41 La. Ann. 83, 5 South. 639; People v. O'Neill, 107 Mich. 556, 65 N. W. 540; St. v. Baker, 33 W. Va. 319, 10 S. E. 639.

921 Chit. Cr. L. 317; O'Hair v. People, 32 Ill. App. 277; Baldwin v. St., 126 Ind. 32.

93 St. v. Faulkner, 175 Mo. 546, 75 S. W. 116.

94 People v. Goldenson, 76 Cal. 328, 19 Pac. 161; U. S. v. Blodgett, Fed. Cas. 18,312.

95 St. v. Froisett, 16 Minn. 296 (Gil. 260); People v. Singer, 18 Abb. (N. C.) 96.

96 Territory v. Staples, 2 Idaho, 778, 28 Pac. 166; Bennett v. St., 62 Ark. 516, 36 S. W. 947.

97 St. v. Fertig, 98 Iowa, 139, 67 N. W. 87; St. v. Clough, 49 Me. 573; Rothschild v. St., 7 Tex. App. 519; Doss v. St., 28 Tex. App. 506, 13 S. W. 788; St. v. Addison, 2 S. C. 356.

vote is at most an irregularity,98 and there should be proof of prejudice arising therefrom," which is shown if he actually participates in the deliberations or attempts in any way to influence the finding.1

§ 2848 Grand Jury Finding.-After the hearing of the evidence submitted, the grand jury deliberates in absolute secrecy and the members vote upon the question of declaring the indictment a "true bill"—"vera bill"—or "not a true bill," or anciently the result of the voting was expressed by the word "ignoramus" and afterwards by the word "ignored" or "not found."2 Whatever the finding the indorsement is accordingly made over the signature of the foreman who adds his official title, though such addition is not necessary to the indictment's validity, as the foreman's official character is a matter of record.* An indictment indorsed as a true bill and such indorsement properly signed imports that a finding to such effect was by an adequate number of jurors.5 Statutes prescribe variously how many shall constitute a grand jury and what number thereof must concur for the finding of a true bill and if no such number concur, a contrary finding is indorsed and the indictment returned into court, so that prisoners in custody may be discharged or bonds for appearances have their obligation terminated by matter of record. Other indorsements are required by statutes such as the names of witnesses, and the necessity for the observance of statutory directions or other requisites to a valid indictment will be considered hereafter under chapter relating to indictments.

98 Com. v. Bradney, 126 Pa. 199, 17 Atl. 600; Regent v. People, 96 Ill. App. 189.

99 U. S. v. Terry, 39 Fed. 355.

1 St. v. Aleck, 41 La. Ann. 83, 5 South. 639.

21 Chit. Cr. L. 324; St. v. Horton, 63 N. C. 595; Esterling v. St., 35 Miss. 210.

3 U. S. v. Plumer, 3 Clif. 28.

4 Barlow v. St., 127 Ga. 58, 56 S. E. 131; Wesley v. St., 52 Ala. 182; St. v. Sopher, 35 La. Ann. 975. It has even been held that a grand jury may return an indictment

which is endorsed a true bill though there has been no special appointment of a foreman. Friar v. St., 3 How. (Miss.) 422. Some statutes, however, appear mandatory in respect to the foreman's indorsement and an indictment not having the requisite indictment null. See St. v. Morrison, 30 La. Ann. 817; St. v. Buntin, 123 Ind. 124; St. v. Mertens, 14 Mo. 94. Others not. St. v. Sultan, 142 N. C. 569, 54 S. E. 841.

5 Spigener v. St., 62 Ala. 383; Spratt v. St., 8 Mo. 247.

§ 2849. Indictment Reported to Court.-When an indictment has been acted on the usual course is for the grand jury to return same into court, presentation thereof being made by the foreman to the court in the presence of the grand jury. This being done, what was a true bill becomes upon acceptance by the court and filing by the clerk an indictment, but statutory directions upon the subject of filing of indictments are largely directory and slight departure will rarely vitiate an indictment." Thus it has been held. that an error in the date of a clerk's file mark may be cured by a simple direction of the court to the clerk to correct same. Nevertheless the indictment must have been returned into court and become a matter of record or a motion in arrest of judgment, notwithstanding it has been pleaded to by a plea of not guilty and a trial had thereon, will be sustained."

St. v. Quarles, 13 Idaho, 252, 89 Pac. 636; 1 Chit. Cr. L. 324; St. v. Bordeaux, 93 N. C. 560; Franklin v. St., 28 Ala. 9; Williams v. St., 55 Ga. 391.

7 Stanley v. St., 88 Ala. 154; Pittman v. St., 25 Fla. 648; St. v. Jolly, 7 Iowa, 15.

8 Nelson v. St., 51 Tex. Cr. R. 349, 101 S W. 1012.

8

Holcombe v. St., 31 Ark. 427; Thornell v. People, 11 Colo. 305; Aylesworth v. St., 65 Ill. 301; Heacock v. St., 42 Ind. 393; St. v. Sandoz, 37 La. Ann. 376; St. v. Brown, 81 N. C. 568; Simmons v. Com., 89 Va. 156; St. v. Heaton, 23 W. Va. 773.

SECTION

CHAPTER LXXXIV.

MOTIONS AFFECTING INDICTMENTS.

2855. Defects on Face of Indictment and Waiver thereof.

2856. Motions to Quash and Pleas in Abatement.

2857. When Indictments should be Assailed.

2858. Burden on Defendant to Establish Extrinsic Facts against Indictment.

2859. Assailing Indictment by Negative Proof.

2860. Further as to Negative Proof-Indictment Improperly Found. 2861. Affirmative Evidence to Impeach an Indictment.

2862. Basis of Indictment.

2863. Allegation as to Matters Unknown-Variance. 2864. Discrimination against Negroes.

2865. Amending indictments.

§ 2855. Defects on Face of Indictment and Waiver thereof.Generally speaking the remedy for assailing a defect which appears on the face of an indictment, when resorted to before trial, is demurrer.1 Where for such defect an indictment is attacked after verdict the remedy is by motion in arrest of judgment. As a motion in arrest of judgment follows only after a conviction it might in many cases be deemed better policy to await the event of a trial before attacking an indictment for such a defect, but it is to be remembered that while demurrer applies wherever motion in arrest would be successful, the converse of this proposition is not true, because for many of such defects either a waiver arises from failure to interpose objection before trial, and even before pleading thereto, or, as in effect the same thing by another name, there is aider by verdict. It is not allowable to assail the sufficiency of an indict

1 Jackson v. St., 64 Ga. 344; St. v. Hart, 29 Iowa, 268; St. v. Vincent, 91 Md. 718, 47 Atl. 1036, 52 L. R. A. 83; Gates v. St., 71 Miss. 874, 16 South. 342; Knight v. St., 84 Ind. 73; People v. Upton, 38 Hun, 107.

2 St. v. Brown, 181 Mo. 192, 79 S. W. 1111.

8 St. v. Ledford, 133 N. C. 714, 45 S. E. 944.

4 St. v. Stock, 95 Mo. App. 65, 68 S. W. 579; St. v. Niesman, 101 Mo. App. 507, 74 S. W. 638.