Byers v. State , 1885 Md. LEXIS 81 ( 1885 )

Miller, J.,

delivered the opinion of the Court.

The plaintiff in error was indicted for bigamy. The indictment, which is set out in the record, is in proper form and free from objection. Upon this indictment he was arraigned, pleaded not guilty, submitted his case to the Court for trial, and was found guilty. He then moved in arrest of judgment, stating as the ground of his motion that the words “Jennie Y. Miller,” the name of the woman whom he was charged to have married during the life of his wife, were not found by the grand jury in their finding of the “ true bill against him,” hut were improperly and without warrant inserted after said true hill was found.

The Court overruled this motion, sentenced the prisoner to the penitentiary for three years, and the case has been brought to this Court as upon Writ of Error.

In support of and against the motion in arrest affidavits of the clerk and the State’s Attorney, and a statement by the Judge who presided at the trial, were made. From these it appears .that the grand jury returned the indictment duly endorsed by the foreman “true hill” on the 20th of November, 1884. The next day the foreman and the State’s Attorney came to the Court and called attention to the fact, that the name of the party to whom the accused was alleged to have been married the second time had by inadvertence been omitted from the indictment, although a blank space for that purpose had been left in the indictment, and made the request to correct this omission by inserting the name of “Jennie Y. Miller-.” The Court, however, directed the foreman to go to the grand-jury room and make the matter known to his fellow jurors; so that the grand jurors might appear at the bar of the Court and make formal application for that purpose. This was done, and soon afterwards on the same day the grand jury appeared at the bar of the Court, and through their foreman requested the return of the indictment for the purpose of filling up the blank therein with the name of “ Jennie Y, Miller; ” and upon this request the Court directed the clerk to return the indictment to the foreman for the purpose aforesaid. The indictment was then placed in the hands of the foreman in the presence of his fellow jurors in open Court. The grand jury then retired to their room, and subsequently on the same day returned the same indictment again to the bar of the Court and delivered it to the Court with the name of the said “ Jennie Y. Miller ” inserted in the space so as aforesaid left blank, and the Court received it and handed it to the clerk endorsed as aforesaid.

But these affidavits and this statement constitute no part of the record, to which alone this Court is confined in reviewing any judgment of an inferior Court upon writ of error. It is well settled, that a motion in arrest must be founded upon some error apparent upon the face of the record; for the only ground on which judgments can be arrested is some matter intrinsic appearing on the record which renders them erroneous and reversible, and extrinsic or foreign matters not so appearing are wholly unavailable for this purpose. 1 Poe’s Pl. and Pr., sec. 750; Gover vs. Turner, 28 Md., 606 ; Archer vs. State, 45 Md., 461; Long, et al. vs. Bailey & Caldwell, 43 Md., 17; State vs. Phelps, 9 Md., 25. That which appears ill upon the same record may be alleged in arrest of judgment; but not a matter of fact which doth not appear upon the record. Trials per Pais, 328. In the present case there is uo defect in the indictment as it is set out in the record, upon which the plaintiff in error was arraigned and to which he pleaded, nor is there any defect in the verdict or finding of the Court. His effort, in effect, is to show by extrinsic evidence that the indictment upon which he was tried was not the indictment found by thé grand jury, and for that purpose resort is had to these affidavits and this statement of the Judge. In other words, he seeks to assail the legal sufficiency of the indictment by matter dehors the record. This cannot be done upon a motion in arrest of judgment. If the matters alleged and shown by these affidavits and statement rendered the indictment substantially defective, he should have taken advantage of them by a motion to quash or to set it aside, before pleading not guilty, or by some form of proceeding other than a motion in arrest. The case is quite different from that of Ford vs. State, 12 Md., 514. In that case the controversy was whether the jury had, in point of fact, found the verdict which the clerk had recorded, and this Court took the judgment of the Court below as to what 'the jury actually did find as part of the record, and then determined that such finding thus judicially ascertained, did not, as matter of law authorize the judgment pronounced against the prisoner, and accordingly reversed it. As we have shown, no such state of facts exists here, and the writ of error must be dismissed.'

But even if the question were open for review we do not think this objection to the indictment could be sustained. It is settled law everywhere that when a grand jury is in session, they and their proceedings are under the general superintendence and control of the Court, and that the Court may at any time re-commit to them an imperfect finding. Wharton’s Crim. Pl. & Pr., sec. 376; Archbold’s Crim. Pr. & Pl., 211, note 1; Low’s Case, 4 Greenleaf’s Rep., 450. In this State the mode of returning presentments and hills of indictment hy grand juries and filing them by the clerks, is not regulated hy statute, hut is governed hy uniform and long established usage and practice. According to this practice the grand jury when they are ready to make a return come into open Court with their foreman, their entrance being announced by a bailiff, and the clerk then calls them severally hy their names, and says: “ Gentlemen, have you agreed upon any presentments or hills of indictment ?” The response being in the affirmative, they are then requested hy the clerk “ to present them to the Court,” and upon the delivery of them he says: “Are you content the Court shall amend matter of form, altering no matter of substance without your privity in these bills you have found ?” To this they give assent and then return to their room. When the papers have been thus delivered to the Court the Judge examines them, and unless they are obviously erroneous delivers them to the clerk, who thereupon files them and makes the proper entries on the criminal docket, and they then become part of the records of the Court. If, however, the Judge discovers an obvious mistake or error in any such paper, instead of delivering it to the clerk he sends for the foreman of the grand jury, points out to him the error, informs him how it can be corrected, and delivers it to him in order that it may he thus corrected. The foreman then takes it to the grand jury room, and there in the presence and with the assent of his fellow jurors makes the necessary correction, and on a subsequent occasion the paper thus amended is returned in the usual way. The preliminary examination thus given hy the Judge to a bill of indictment is usually confined to ascertaining whether it hears the proper endorsement of “True Bill,” signed hy the foreman. The body of the indictment is rarely looked at, because tbe Judge assumes that this has been properly framed by tbe State's Attorney,, and such a defect as existed in tbe body of this indictment is a very unusual one. If the Judge to whom it was delivered by tbe foreman of the grand jury bad opened it and discovered that tbe blanks bad not been, properly filled up, it would have been his duty, instead of handing it down to tbe clerk, to have returned it to tbe foreman for correction in the mode above indicated. Tbe defect, however, was not discovered until tbe next day, and after the indictment had been delivered to tbe clerk and filed by him. In tbis state of case, no doubt the more regular, formal, and safer course would have been for the State's Attorney to have bad tbis indictment quashed, and to have framed a new one and submitted it to tbe grand jury for their approval. 1 C’hitty’s Cr. Law, 325 ; 2 Hale’s Pleas of the Crown, 162; Bacon’s Abr. (Indictment D). But tbis was not done, and tbe public and formal proceeding set out in tbe statement made by tbe learned Judge of tbe Court below was adopted in lieu thereof. The grand jury came into Court while it was in open session, and through their foreman made a public and formal request that the indictment should be returned to them for the purpose of properly filling up tbe blanks left in it, and tbe Court thereupon gave a formal and express direction to tbe clerk to return the indictment to tbe foreman for tbis purpose. The indictment was then placed in the hands of the foreman in the presence of bis fellow jurors and in open Court. Tbe grand jury then retired, and on the same day returned the same bill with tbe blanks properly filled up, and bearing tbe same endorsement of “ True Bill,” signed by tbe foreman, and delivered it to tbe Court, and tbe Judge thereupon banded it to tbe clerk. All that was thus done was done in open Court, and with tbe Court's express sanction and direction. It was the duty of tbe clerk to have entered these proceedings upon the minutes and as part of the record and proceedings of the Court on the day, (21st of November, 1884,).on which they occurred, and if he failed to do so it was competent for the Court to have had the minutes of its proceedings corrected in this respect. What the grand jury thus did was, in our opinion, substantially the same thing as finding and returning a new indictment in the form in which the old indictment thus corrected stood. At all events we discover in these proceedings no such defect as would justify the Court in pronouncing the indictment thus treated and acted upon by the grand jury, a nullity, and we should therefore sustain it if the question were before us for decision.

(Decided 10th March, 1885.)

Writ of Error dismissed.