State v. . Jones , 78 N.C. 420 ( 1878 )

We cannot dispose of this case without calling attention to the gross irregularities and omissions apparent on the record. The name of no witness is indorsed on the bill of indictment, and it does not appear that a single witness was sworn, sent, or heard before the grand jury. The name of the foreman is not upon the bill, nor does it appear that it was ever returned into court. We cannot see that it was found "A true bill" or "Not a true bill," and it does not appear that any confession or plea was entered, nor that any evidence was heard or trial had, nor by whom, the judgment was rendered. No verdict whatever was entered, and although it was probably intended that the agreed facts should be taken as a special verdict, it may be gravely considered whether the State and the defendant in a criminal action can agree upon facts to be considered as a special verdict, when no verdict is in fact rendered. Whether these errors occurred from inadvertence, negligence, or intention, can make no difference. They cannot be tolerated. The liberty of the citizen and a due regard for the forms of law forbid it. Which of said irregularities would or would not be fatal it is unnecessary to decide now, as the present case will not turn upon any of them. Our opinion rests upon another and a fatal objection to the (422) action:

The bill alleges that certain persons were "prisoners and in the custody of one Thompson in the common jail," and that the defendant was trying to aid their escape. It does not allege that they had committed any offense for which they might be detained, nor any facts or circumstances from which the Court can see that they were lawfully in jail. No mittimus, conviction, or other authority is alleged for their imprisonment. In this particular the bill is bad. It follows, of course, if the Court cannot say that the prisoners were lawfully in jail, it cannot say that the defendant committed an offense in trying to help them out. Even in a case where it was alleged in the bill that the prisoner was arrested by "lawful authority," and no facts, etc., were set forth by the grand jury, this Court held that to be clearly insufficient and the bill defective. S. v. Shaw, 25 N.C. 20. All the precedents and recognized authorities support this view.

We are therefore of opinion that judgment ought not to have been pronounced against the defendant.

PER CURIAM. Judgment arrested.

Cited: S. v. Baldwin, 80 N.C. 393; S. v. Padgett, 82 N.C. 546.

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