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quire an indictment to be quashed,42 especially if he participates in voting.43 The rule as to prejudicial presence during deliberations applies to a prosecuting officer the same as that of another."

§ 2862. Same. Basis of Indictment.—So far as the success of an effort to set aside an indictment depends upon the incompetency or insufficiency of evidence before the grand jury is concerned, it is to be said that it must be shown affirmatively that there was no other evidence before the grand jury than that,45 but some courts do not recognize this as a ground of attack.46 It is also ruled to be in the discretion of the court whether to permit any inquiry for the purpose of ascertaining whether or not the evidence was in part illegal or incompetent or was insufficient, not to be exercised but in cases where the ends of justice imperatively so demands. The fact that no evidence was heard does not vitiate an indictment which is a substitute for one that has been quashed. But a grand jury should not receive evidence not admissible before a trial jury.49 The view has been taken by some of the courts that incompetent evidence heard before a grand jury should be regarded from the same standpoint as if it had been submitted to a petit jury, that is

42 St. v. Watson, 34 La. Ann. 669; St. v. Clough, 49 Me. 573; Wilson v. St., 70 Miss. 595, 13 South. 225; People v. Metropolitan Traction Co., 50 N. Y. S. 117; Doss v. St., 28 Tex. App. 506.

43 St. V. Tilly, 8 Baxt. 382. If such unauthorized person be a disqualified juror the objection is subject to the rule as to challenges and whether the statute allows this as a ground for the setting aside of an indictment.

44 Stuart v. St., 35 Tex. Cr. R. 440, 34 S. W. 118. And it has been held that where a special assistant to the attorney general conducted proceedings before a grand jury this was the appearance of an unauthorized person for which a motion to quash lay. U. S. v. Rosenthal, 130 Fed. 862. The presence of a prosecuting attorney disqualified to prosecute a particular case, during the exami.

nation of witnesses has been held good ground for setting aside indictment. St. V. Rocker, 130 Iowa, 239, 106 N. W. 645.

45 Chadwick v. U. S., 141 Fed. 225, 72 C. C. A. 343; St. v. Dayton, 23 N. J. L. 49; St. v.' Fasset, 16 Conn. 457; U. S. v. Thomas, 145 Fed. 74.

46 St. v. Woodrow, 58 W, Va. 527, 52 S. E. 545; Com. v. Minor, 89 Ky. 555; St. v. Lewis, 38 La. Ann. 680; U. S. v. Cobban, 127 Fed. 713; Cotton v. St., 43 Tex. 169; Hope v. People, 83 N. Y. 418; Dockery v. St., 35 Tex. Cr. R. 487, 34 S. W. 281.

47 McGregor v. U, S., 134 Fed. 187.

48 Worthem v. St. (Ark.), 101 S. W. 757.

49 1 Chit. Cr. L. 319; 1 Whart. Cr. L., § 493 (7th Ed.); Washington v. St., 63 Ala. 189; Bryant v. St., 79 Ala, 282,

80 St. V. Lanier, 90 N. C. 714.

to say if the court cannot say what effect the incompetent testimony had the indictment should be set aside. New York rulings on this line are controlled greatly by the statute, which prescribes that "the grand jury can receive none but legal evidence,” 51 but the majority rule is believed to be that merely receiving incompetent evidence does not vitiate. If however, evidence is plainly illegal, as where defendant was compelled to testify against himself it has been held that the indictment should not be allowed to stand, though the evidence without his testimony be sufficient to warrant the find ing of the indictment.52 The mere presence of defendant before the grand jury has been held not to have such effect,53 nor does the fact of the wife of an accused being a witness, as ruled in Iowa, vitiate the indictment.54

§ 2863. Allegation as to Matter Unknown. Variance. It has been held that an allegation that a fact or a person is to grand jurors unknown is permissible only from necessity and if it appears on the trial that the name of the person or fact referred to either was, or by the exercise of ordinary diligence should have been, known to the grand jury this shows a variance fatal to the indictment.55 In such cases verdicts have been directed for defendant,56 and it has been denied that the variance would have this effect.57 In New York it does not appear that this is regarded as a variance,58 and in Massachusetts that the conclusion of variance must be a necessary one, as for example where in an indictment for abortion committed by an instrument to the grand jurors unknown, a variance was not shown though it appeared that witnesses before them described the instrument.59

§ 2864. Discrimination against Negroes.—Where a grand jury has been impaneled and negroes are excluded therefrom on account

61 N. Y. Cr. C., § 296; People v. Metropolitan Trac. Co., 50 N. Y. Supp. 1117.

62 U. S. v. Edgerton, 80 Fed. 374; St. V. Gardner, 88 Minn. 130; Counselman v. Hitchcock, 142 U. S. 547; St. v. Frizell, 111 N. C. 722.

53 St. V. Shepherd, 129 Iowa, 705, 106 N. W. 190.

54 St. v. Brown, 128 Iowa, 24, 102 N. W. 799. 56 St. v. Stowe, 132 Mo. 199, 33 S.

TRIALS—133

W. 799; Jorasco v. St., 6 Tex. App. 238; Presley v. St., 24 Tex. App. 494, 6 S. W. 540.

56 U. S. V. Riley, 74 Fed. 210; Winten v. St., 90 Ala. 637; Yost v. Com., 5 Ky. Law Rep. 935; Sault v. People, 3 Colo. App. 502, 34 Pac. 263.

67 Com. v. Gallagher, 126 Mass. 54.

58 People v. Fleming, 60 Hun, 576, 14 N. Y. S. 200.

69 Com. v. Noble, 165 Mass. 13, 42 N. E. 328.

of discrimination because of their race or color this may be taken advantage of by plea in abatement, or motion to quash in some jurisdictions, but it has been held that the affidavit of defendant is not sufficient to establish such discrimination. Nor does proof that discrimination has been made available unless the instance in which indictment has been found is such that it appeared to operate to the disadvantage of defendant. For example, it was held necessary to show in a murder case that defendant and deceased were both negroes.81

§ 2865. Amending Indictments.-At common law the grand jury upon returning indictments into court were asked if they agreed that the court should amend same in matter of form altering no matter of substance.62 Whether that form be followed or not, it has been ruled by the federal Supreme Court that under the fifth Amendment of the Constitution that there can be no change or amendment in the body of an indictment after it has been filed, even though the change be only the striking out of surplus words without resubmitting the indictment to the grand jury.63 It undoubtedly is true that an indictment cannot be amended in matter of substance but must be resubmitted to the grand jury,64 yet it is believed as largely under authority of statute, many amendments may be made which at common law would not have been permitted, but whenever made it must be by order of court and not by the prosecuting attorney.85 Thus by Kentucky statute amendment may be made by entering of record the true name of defendant.66 It has been held in a capital case that an amendment as to date of commission of the offense may be made, because the statute of limitations does not run as to this crime.67 It has been held allowable to amend an indictment which shows it was found at an impossible term of court.68 Generally it is held that defects in caption or commence

60 Tarrance v. Florida, 188 U. S. 519, 47 L. Ed. 572; Smith v. Mississippi, 162 U. S. 592, 40 L. Ed. 1082.

61 St. v. West, 116 La. 626, 40 South. 920.

62 1 Chit. Cr. L. 324.

63 Ex parte Bain, 121 U. S. 1, 30 L. Ed. 849. See however Caha v. U. S., 152 U. S. 211.

64 Patrick v. People, 132 Ill. 529,

24 N. E. 619; St. v. Twining, 71 N. J. L. 388, 58 Atl. 1098.

66 Shurley v. St., 89 Miss. 117, 43 South. 299.

66 International Harvester Co. v. Com., 30 Ky. Law Rep. 716, 99 S. W. 637.

67 St. v. Cornelius, 118 La. 146, 42 South, 154.

68 Reys v. St., 45 Tex. Cr. R. 463,

69

ment may be corrected by order or direction of court.

And so as
to formal conclusion, signature of officer and indorsements.70 But
American decision has corrected errors even in the body of indict-
ments, which are the result of clerical errors," or the filling in of a
blank." Under Louisiana statute an indictment in a larceny case
was allowed to be amended by stating the name of the true owner.73
In a murder case the true Christian name of deceased was allowed
to be inserted 74 and in a seduction case the true name of the woman
was allowed to be substituted. The liberality of the Louisiana
statutes was held not to extend to the inserting of the word “felo-
niously” before the word “rob,” 76 and so it may be said as to words
which are essential to the legal description of a crime in its general
aspect and not as detail as to a particular offense."

76 S. W. 457; St. v. Humphries, 35
La. Ann. 966; St. V. Jenkins, 64 N.
H. 375, 10 Atl. 699; Osborne v. st.,
24 Tex. App. 398, 6 S. W. 536.

69 St. v. Humphries, 35 La. Ann.
966; St. v. Society etc., 42 N. J. L.
504; Brown v. Com., 78 Pa. 122;
Murphy v. St., 29 Tex. App. 507, 16
S. W. 417.

70 St. V. Crenshaw, 45 La. Ann.
651, 18 South. 647; St. V. Amidon,
58 Vt. 524, 2 Atl. 154; St. v. Squire,
10 N. H. 558; Cain v. St., 4 Blackf.
(Ind.) 512; St. V. Anderson, 45 La.
Ann. 651, 12 South. 737; St. v. Wil.
liams, 47 La. Ann. 1609, 18 South.
647.

71 Gamblin v. St., 45 Miss. 658;

St. V. Brooks, 85 Iowa, 366, 52 N.
W. 240.

72 St. V. May, 45 S. C. 509, 23 S.
E. 513.

78 St. v. Hanks, 39 La. Ann, 323,
1 South. 665; St. V. Ware, 44 La.
Ann. 954, 11 South. 579. See also
St. V. Casavant, 64 Vt. 405, 23 Atl.
636; People v. Richards, 44 Hun,
278, 5 N. Y. C. R. 355.

74 Miller v. St., 68 Miss. 221, 8
South. 273.

76 People v. Johnson, 104 N. Y.
213, 10 N. E. 690.

78 St. v. Durbin, 20 La. Ann. 408.

77 Kline v. St., 44 Miss. 317; St.
V. Jones, 101 N. C. 719, 8 S. E. 147;
Com. v. Kaas, 3 Brewst. 422; Bates
V. St., 12 Tex. App. 26.

CHAPTER LXXXV.

DECISIONS APPEALABLE.

§ 2865a. Introductory.-We have considered the office of a bill
of exceptions in securing review by an appellate tribunal, and of
there being review of alleged error so far as the record proper
may be sufficient to show its absence or existence. There lie,
however, outside of these records considerations, which may pre-
vent such a tribunal from going into a review of alleged error.
These considerations pertain either to the bona fides of the cause
in which is the record, or the nature of the question as to which
error is alleged, when appeals either may be postponed or not al-
lowed at all, or may be immediately taken.

§ 2865b. Bona Fides of Controversy.-A judicial tribunal sits
only for the determination of real controversies between parties
who have a legal interest, of technical sufficiency, in subject mat-
ters embraced in the records of causes pending in courts; that is
to say, merely abstract or moot questions will not be determined.
This rule applies to feigned and fictitious suits. There must be a
subsisting question on which the judgment invoked may operate
immediately. And, therefore, if pending appeal the situation
changes, so as to make a question merely academic the appeal will
be dismissed, and so if the judgment becomes thereby unenforce-
able. That costs are dependent upon an appeal being considered
is not sufficient to prevent its dismissal.

1 Bradley v. Voorsanger, 143 Cal.
214, 76 Pac. 1031; St. v. Indian.
apolis Gas Co., 163 Ind. 48, 71 N. E.
139; Sullivan v. Gawey (Iowa), 92
N. W. 672; King v. Tilford (Ky.),
70 S. W. 1064; Mackie Groc. Co. v.
Pratt, 114 La. 341, 38 South, 250;
McDaniel v. Hart, 88 Miss. 769, 41
South. 381; In re Davies, 168 N. Y.
89, 61 N. E. 118, 56 L. Ř. A. 855;
Gether V. Clark, 24 Wash. 16, 63
Pac. 1106.

2 Ebert V. Reedy, 113 Ill. 316;
Blake v. Andrew, 76 N. C. 325.

3 Leber v. United States, 170 Fed.
881, 96 C. C. A. 57; In re Macky's
Estate, 46 Colo. 100, 102 Pac. 1088;
Neving v. Moore, 221 Mo. 330, 120
S. W. 43; Albright v. Erickson
(Okla.), 102 Pac. 112.

4 Rollins v. League for Honest
Elections, 46 Colo. 47, 102 Pac. 744;
Hicks v. J. B. Pearce Co., 158 Mich.
502, 122 N. W. 1087.

5 Miller v. Ury (Okla.), 102 Pac.
112; Seldon v. Montague, 194 U. S.
153; Montgomery County v. Trac-
tion Co., 140 Ala. 458, 37 South,

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