State v. Ross , 14 La. Ann. 364 ( 1859 )

Lastd, J.,

also dissenting. The District Attorney preferred to the Grand Jury, of the Parish of Carroll, a bill of indictment, charging the defendant with the crime of manslaughter.

After hearing the evidence, they returned the bill into court with this endovse-men! upon it, “ bill not found,” signed, T. M. Tucker, foreman of the Grand Jury.

On the same day, the 1st of October, 1858, the District Attorney presented to the court an information against the defendant for the same crime charged in the bill of indictment, which was filed, and ordered to be entered on the minutes, and which afterwards was quashed on the motion of defendant, and the State appealed.

This case, therefore, conies before us without either an indictment or information against the defendant, and his counsel has filed a motion to dismiss the appeal for the want of jurisdiction in this court.

Prosecutions can only bo carried on by indictment or information. There can be no prosecution by indictment without the finding of a grand jury. There can bo no prosecution by information without the consent of the court first obtained. Acts of 1855, sec. 1, p. 151.

In this case the grand jury refused to find a bill, and the court refused its consent to a prosecution by information after hearing the parties.

Whether the party charged, should be put upon his trial either by indictment or information, is a question necessarily involving the consideration of facts, of which, this court has no appellate jurisdiction.

No appeal lies from the refusal of a'grand jury to find a bill upon the evidence before them. Nor will an appeal lie from the refusal of a District Judge to give his consent to a prosecution by information.

The judgment quashing the information, is proof conclusive, that the filing was only pro forma, and was not preceded by the consent of the court, to a prosecution in that form, — but that the Judge withheld his consent until the defendant could be heard, and then refused it.

This court is, therefore, without jurisdiction of the case, in my opinion.