State v. Greenwood , 5 Port. 474 ( 1837 )

ORMOND, J.

The facts of this case are, that an indictment was found at the Circuit Court of Shelby county, against the defendant for horse stealing. The defendant, on being arraigned, pleaded four several pleas in abatement. The Court on motion of the Attorney General, put the prisoner to his election, on which one of the pleas he would rely, and to abandon the rest; which election he refused to make: whereupon the Court directed the pleas to be stricken out, and on refusal of the prisoner to plead further, caused the plea of not guilty to be entered for him. The matters of Jaw arising thereon, were reserved for the revision of this Court, as novel and difficult. The cause was then removed by change of venue, to Tallade-ga county, where the prisoner was tried and convicted, and moved in arrest of judgment, for the following reasons:

1. That it appeared from the record, that .the Court in which the indictment was said to be found, was not held by one of the Judges of the Circuit Court of this State.

2. That it did not appear by the record, that the grand jury, by whom the said indictment wasfound, Was selected and impanneled according'to law.

3. That it did not appear by the record, that the indictment had been returned by the grand jury, into the Court at which said indictment is said to have been found, nor does it appear by the record, whether the grand jury returned the said indictment a true bill, or not a true bill: nor that the indictment upon which said conviction was had, was the same upon which the venue had been .changed.

Which motion in arrest of judgment, was over-ruled by the Court, but reserved for the decision of the Supreme Court, as novel and difficult.— These matters are all relied on in this Court as error, and will be severally considered.

The first cause for the arrest of the judgment, is a mere clerical error of the clerk of Shelby Circuit Court. In making out the transcript in pursuance to the rule of the Supreme Court, he states, that ''the Circuit Court of said county, met agreeable to law. Present, the Honorable Pholemy T. Harris, one of the Judges of the Circuit Court, ” &c. It is impossible for this Court, to shut its eyes to the fact, that this is a mere clerical error of the clerk, in spelling the name of the Judge. It would be trifling with the gravity of judicial proceedings-to suffer such an objection to prevail. It is compared to the case of a plea of misnomer, but it bears no analogy to such a case. This Court must take judicial notice that Ptolemy T. Harris, is one of the Circuit Judges of the State, and will intend that this is a mere clerical error.

The answer to the second cause assigned is, that it appears from the transcript of the record, sent from Shelby county, that the grand jury were drawn, summoned and impanneled, according to law, and if the objection here raised can be made, it can only be by plea in abatement.

The objections raised by the third cause assigned, rest upon the supposition, that the indictment should have been copied upon the records of Shelby Circuit Court.

All the papers relating to the cause, including the indictment, were in fieri, when the order for change of venue was made; and as it did not become a record until after enrolment, the objection could as well be made in the Court where the indictment was found, as elsewhere. The papers, are by law, entrusted to the custody of the clerk, and the certificate which he has made in this cause, that the indictment has been subjoined to the transcript, imports as absolute verity, as would his production of it, on trial in the Court where it was found. In either case, were it not the true indictment, the matter might be disputed in a proper mode.

By the same process of reasoning, we attain the conclusion, that the indictment thus subjoined by the clerk, in accordance to the rule of the Supreme Court, was the one on which the venue was changed; that it is the same which was returned to the Circuit Court of Shelby county, by the grand jury, and that they found it a true bill. Nearly all these principles were determined by this Court, in the case of Collier vs the State. (2 Stewart, 388.) There was no error in refusing to arrest the judgment.

But in compelling the prisoner, to elect on which one of his pleas in abatement he would rely, and in compelling him to abandon the rest, the Court erred. The act of the legislature, in allowing more pleas than one to be filed, does not extend to criminal cases. But the right thus to plead, exists at common law. In 1 Chitty’s Criminal Law, 434, this is denied; but he cites no adjudged case in support of his opinion, whilst the contrary doctrine is held by Hawkins, a much higher author on criminal law, .supported by high authority. This seems then to be the better law, and we do not feel, warranted in depriving the prisoner of any de-fence secured to him by the common law, and not repealed by statute. — [2 Hawkins 66, and authorities there referred to.]

It is- insisted by the Attorney General, that as the order of the Court, referring this case, set out, that the questions were novel and difficult, to the counsel for the prisoner, this Court cannot take jurisdiction. But as it would be improper for the Judge, to send up the case as one of novelty and difficulty, unless he esteemed it so, we must understand him, as endorsing the opinion of counsel, and thus making it his own.

Upon the sufficiency of the plea, as that question is not presented, we express no opinion.

The judgment must be reversed, and the cause remanded.