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ment by objecting to the reception of any testimony thereunder, a principle the effect of which is necessarily to remit all questions affecting defects in indictments made after plea entered to the motion in arrest of judgment. In such contingency, as we have just seen, the objector encounters the doctrine of waiver and aider by verdict. Neither is it permitted to ask for a dismissal after trial is entered upon, still further enforcing the truth of the observation just made. In some jurisdictions motion to quash is as to such defects as appropriate as demurrer, but it is more like a general demurrer, and it is largely in the discretion of the court either to allow same or require as more formal and exact, the interposition of a demurrer.' The motion to quash reaches, however, in most of the states other matters than such defects, and it is these as to which we are principally concerned in this chapter 10

§ 2856. Motions to Quash and Pleas in Abatement.—Considering motions to quash as embracing matters not appearing on the face of the indictment they are remedies which are cumulative of pleas in abatement but not extending to all of those things to which such pleas apply. Thus we have seen that the court has discretion whether or not to entertain a motion to quash and as therefore the interposing of this motion is more by leave of court than a right, so the practice has grown up in American jurisdictions of allowing it to refer to extrinsic facts.11 But the extrinsic facts are those which pertain to the validity of the indictment, upon objection seasonably made, also in the purview of a plea in abatement. Thus a plea in abatement lies for informalities in drawing, summoning or impaneling the grand jury.12 So as to qualifications of members.13 For the same defects the judge may allow a motion to quash

8 St. v. Gregory, 178 Mo. 48, 76 S. W. 970; U. S. v. Harmon, 45 Fed. 414; St. v. Ashe, 44 Kan. 84, 24 Pac. 72.

6 St. V. Bloodsworth, 25 Or. 83, 34 Pac. 1023.

7 St. v. Norris, 65 S. C. 287, 43 S. E. 791.

8 Nichols v. St., 46 Miss. 284.

e People v. Walters, 5 Parker Cr. R. 661; St. V. Wishow, 15 Mo. 503; Black v. St., 53 N. J. L. 462, 26 Atl. 804; St. v. Stuart, 23 Me. 111.

10 In Vermont it is held that motion to quash does not go to matters dehors the record. St. y. Ward, 60 Vt. 142, 14 Atl. 187.

11 St. v. Batchelor, 15 Mo. 207; St. V. Horton, 63 N. C. 525; St. v. Nutting, 39 Me. 359.

12 Tervin v. St., 37 Fla. 396, 20 South. 551; St. v. Haywood, 73 N. C. 437; People v. Goldenson, 76 Cal. 328, 19 Pac. 161.

13 Matthis v. St., 94 Ind. 562.

to be interposed.14 But some of the states remit these matters to plea in abatement.15 It has often been allowed for motion to quash to raise the question of sufficiency of evidence before the grand jury,16 or that indictment was based on illegal evidence.1? Whether an indictment is invalid by reason of there being informality in the impaneling of the grand jury, irregularity in its procedure, lack of evidence before it or non-observance of requirements as to its being returned and filed and what is a sufficient showing thereof is that which we wish to consider, whether the question be raised by motion to quash, or to set aside, an indictment, or by plea in abatement. Also incidentally we may say, that it is universally held that motion to quash must be interposed before arraignment, unless leave is granted for the motion to be filed after plea has been entered.18

$ 2857. When Indictments should be Assailed.-As a rule almost universal in its application it may be said that indictments merely defective by reason of failure to conform to statutory directions, such as indorsements of witnesses thereon,19 or any other minor defects.20 Indeed it is doubted whether any objection going to extrinsic proof in its support could be urged after arraignment and plea, unless there be ample showing both as to ignorance and diligence, because the effect of displacing the indictment is not to let the prisoner go free, but the court may hold him for another indictment,21 even before plea, if an unusual time has elapsed, for example where there is continuance to a later term, an objection may

14 St. v. Moloney, 12 R. I. 251; MCInerney v. U. S., 147 Fed. 183, 77 C. C. A. 411 (following rule in Indiana); Com. v. Shaffner, 146 Mass. 512, 16 N. E. 280; O'Donnell v. People, 224 Ill. 218, 79 N. E. 639.

15 St. V. Brown, 118 La. 373, 42 South. 969; Cubine v. St., 44 Tex. Cr. R. 596, 73 S. W. 396; Pate v. St., 150 Ala, 10, 43 South. 343.

16 Perkins v. St., 66 Ala. 457; People v. Price, 2 N. Y. S. 414, 6 N. Y. C. R. 480; Chadwick v. U. S., 141 Fed. 225, 72 C. C. A. 343.

17 Boone v. People, 145 111. 440, 36 N. E. 99; Shivers v. Ter., 13 Okl. 466, 74 Pac, 899.

18 St. V. Jones, 88 N. C. 671; St. V. Collins, 4 Idaho, 184, 38 Pac. 38; Marsh v. People, 226 Ill. 464, 80 N. E. 1006; St. v. Barnett, 142 N. C. 577, 55 S. E. 72; McFall v. St., 73 Ark. 327, 84 S. W. 479; Frisbie v. U. S., 157 U. S. 160, 39 L. Ed. 657.

19 McFall v. St., 73 Ark. 327, 84 S. W. 479; Frisbie v. U. S., 157 U. S. 160, 39 L. Ed. 657.

20 Ter. v. Easton (N. M.), 79 Pac. 713 (not reported in state reports).

21 St. v. Daugherty, 106 Mo. 182; Coleman v. St., 71 Ala. 312; St. V. Allen, 94 Ind. 441.

not be entertained.22 We will therefore consider the sufficiency of grounds of attack independently of how and when the question is raised, and the sufficiency of evidence to sustain the grounds of attack.

§ 2858. Burden on Defendant to Establish Extrinsic Facts against Indictment.—The signature of the foreman of the grand jury in attestation of the fact that a paper is “a true bill” is a prima facie presumption that it has been found by an adequate number of grand jurors and that compliance with all the prerequisites therefor has been had.23 When in addition thereto the record shows the return of the paper into court an indictment arises as a record in the same court.24 Extrinsic facts therefore are necessary to overcome this presumption and these are various, consisting of matters of an affirmative and negative character, which will be considered in inverse order.

§ 2859. Assailing Indictment by Negative Proof.—The reason why the indorsement of a true bill” on a paper by one professing to be a “foreman," a word of well recognized import followed by the filing mark of a court and signature of its clerk is taken as prima facie a competent document exists in the presumption that a court has the inherent power and duty to protect its records. grand jury, however, cannot spring into existence except in a prescribed method from among those who are by law qualified to serve as grand jurors. The procedure in the organization of such a body is by and through the court and this must be shown by its record. Therefore if such indorsement is not supported by the record showing the impaneling of a grand jury it loses its force and the indictment will be quashed or set aside.25 But the record that the grand jury was impaneled if not full as showing how it was impaneled it may be corrected nunc pro tunc to show the necessary steps taken. Thus if the indictment sets forth that the grand jurors were duly sworn and this fact be inadvertently omitted from the record.26 It has also been held that where the record shows the appointment

22 Com. V. Windish, 176 Pa. 167, 34 Atl. 1019.

23 Spigener v. St., 62 Ala. 383; Spratt v. St., 8 Mo. 283; Brotherton V. People, 75 N. Y. 159.

24 Cooper v. St., 79 Ind. 206; St. V. Morrison, 30 La. Ann. 817; St. v.

Buntin, 123 Ind. 124; St. v. Davidson, 12 Vt. 300; Stout v. St., 93 Ind. 150.

25 Parmer v. St., 41 Ala. 416.

26 Baker v. St., 39 Ark. 180; St. v. Folke, 2 La. Ann. 744.

of one person as foreman and the indorsement of an indictment by another the presumption of due procedure following impanelment will suppose that the record appointee has been discharged and succeeded as foreman and defendant could show such was not the case. 27 Proof of disqualification of members of the grand jury is also negative in character, but, as we have seen, this character of objection cannot be made after the grand jury has been impaneled by those who have been held to answer or are otherwise bound to take notice that charges against them are expected to be considered by such grand jury. Thus where it is required that a member shall have paid his taxes 29 and in several states it has been that one not required to challenge the array or individual jurors for any reason good in law, has the right to object to indictment for a similar ground, except for favor.30 Latterly, however, courts are averse to holding grand juries not competent to return indictments because of any irregularity in organization, if it cannot be shown any prejudice has resulted.31 Where statute enumerates grounds of challenge or of quashal this enumeration has been held exclusive 32 And it has been held not unconstitutional as denying equal protection of the laws to one committing a crime subsequent to impanelment the right to attack indictment for such disqualification as would give the right of challenge before impanelment.38

§ 2860. Further as to Negative Proof-Indictment Improperly Found.—As there must be concurrence of an adequate number of the grand jury for the finding of an indictment it is in the nature of negative evidence to show that this is not true, and it has been allowed for grand jurors to testify how many voted in favor of an indictment.84 It has been held that it does not conflict with the

27 People v. Roberts, 6 Cal. 214; St. v. Gouge, 80 Tenn. 132. See also as to silence of record as to presentation of indictment by foreman in presence of the other grand jurors. Williams v. St., 150 Ala. 84, 43 South. 182.

29 St. v. Durham, 111 N. C. 658.

80 Fenalty v. St., 12 Ark. 630; St. v. Larkin, 11 Nev. 314; Rolland v. Com., 82 Pa. 306; People v. Travers, 88 Cal. 233, 26 Pac. 88; St. v. Hardy, 4 Idaho, 478, 42 Pac. 507.

31 Woodward v. St., 33 Fla. 508; St. v. Glasgow, 59 Md. 209; Cox v. People, 80 N. Y. 501; Wolfson v. U. S., 101 Fed. 430; St. V. Johnson, 136 Iowa, 601, 111 N. W. 827.

32 St. V. Lamphere, 20 S. D. 98, 104 N. W. 1038; Robinson v. Ter., 16 Okl. 241, 85 Pac. 451; Thomas v. Ter. (Ariz.), 89 Pac. 591 (not reported in state reports).

33 St. v. Lang, 75 N. J. L. 1, 502, 66 Atl. 942.

34 Manion v. People, 29 Ill. App. 532. See also St. V. Shelton, 64

federal constitution that a grand jury should be composed of less than the common law number of twenty-three or that there should be a concurrence of twelve to find same.35 So it has been held that if witnesses upon whose testimony a bill has been found were not sworn the indictment will be quashed.36

§ 2861. Affirmative Evidence to Impeach an Indictment. It is very frequently sought to set aside indictments because of the presence before the grand jury of unauthorized persons, the insufficiency, incompetency or illegality of evidence upon which it is based, or of active interference with the freedom of deliberation on their part. This naturally requires evidence of a positive or negative character and its legal effect and persuasiveness is for the court, or for the jury accordingly as the issue is tried. As to the presence of unauthorized persons it has been held that if more than one witness at a time be permitted in the grand jury room this may cause an indictment to be quashed,37 but more generally it has been held that presence of an unauthorized person during examination of witnesses is not sufficient to vitiate an indictment.3 A stenographer taking notes of testimony has been held an assistant to the states' prosecuting officer and his presence affords no reason for quashing indictment.39 If the court appoints one to be present during such examination this will not vitiate the finding 40 If however advantage is taken of being before the grand jury to bring improper influence to bear on them as for example where an attorney employed to prosecute was called as a witness and urged the grand jury to find an indictment, this presents good ground on motion to quash." The presence of any unauthorized person during deliberations is ordinarily held to presume prejudice and to re

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Iowa, 333; Donald v. St., 31 Fla. 255; St. V. Barker, 107 N. C. 913; St. v. Williams, 35 S. C. 344.

85 Hausenfluck v. Com., 85 Va. 702.

86 Joyner v. St., 78 Ala. 448; In re Lester, 77 Ga. 143. In Iowa it has been held otherwise because of this not being one of the grounds enumerated by statute. St. V. Eas. ton, 113 Iowa, 516. In New York, however, it was held that an objection of this kind is a constitutional right not to be excluded by any statutory enumeration of

grounds of objection. People v. Sexton, 187 N. Y. 495, 80 N. E. 396.

37 U. S. v. Edgerton, 80 Fed. 374. See also St. v. Fertig, 98 Iowa, 139.

88 Bennett v. St., 62 Ark. 516, 36 S. W. 947; Courtney v. St., 5 Ind. App. 356, 32 N E. 335.

89 U. S. v. Simmons, 46 Fed. 65; St. V. Bates, 148 Ind. 610. Contra, St. v. Bowman, 90 Me. 363.

40 Raymond v. People, 2 Colo. App. 329, 30 Pac. 504.

41 Welch v. St., 68 Miss. 341, 8 South, 673.

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