State v. McBroom. ( 1900 )

■Fairclotii, C. J.

The defendant is indicted for perjury, and was convicted. In this Court the defendant moves to ' arrest- the judgment on the ground that the record does not show that the bill of indictment was found a “true bill” by the grand jury. The indorsement on the bill was in these words: “Those marked ‘X’ sworn by the undersigned foreman, and examined before the grand jury, and this bill found. ¥m. E. Eeade, Foreman Grand Jury.” Is the bill sufficient- in law? "VVe are informed by the Attorney-General that 31 States require, by statute, that bills of indictment shall be indorsed “A true bill,” and that 14 States, including North Carolina, have no statute upon the subject. In these 14 States the common-law requirement still prevails. In State v. Vincent, 4 N. C., 493, Taylob, C. J., said: “An indictment is an accusation found by an inquest of twelve or more lawful jurors upon their oaths. The law has pre- • scribed certain forms in which such accusations shall be drawn, and will not allow any citizen to be punished unless such precision is observed.” In State v. Callhoon, 18 N. C., 374, this Court said: “It seems that the signing the name of the foreman to the indorsement of a True bill on a bill of indictment, though a salutary practice, is not essential to its validity.” This has been many times followed, and held that if the indictment is indorsed “A true bill,” though not signed by the foreman and presented by the jury to the Court, and it is received as such, that is sufficient. In State v. Cox, 28 N. C., 446, the Court said: “It is settled in this State that an indictment need not be signed by anyone. * * * It is the action -of tile jury in publicly returning the bill into the Court as true, and the recording, or filing, it among the rceords, that make -it effectual.” In State v. Guilford, 49 N. C., 83, PuaesoN, J., explaining the distinction between an indictment and a presentment, said: “The manner of presenting a bill of indictment is for the' grand jury, after having examined the witnesses on the part of the State touching the allegations set out in the indictment, to come into open court, and return the bill indorsed ‘A true bill/ which is done by tbe foreman, acting- for tbe grand jury, and tbe return is made in tbeir presence;” and, if tbe bill is not passed, the return is, “Not a true bill.” These cases agree that it is not, necessary that tbe record should be incumbered with useless details, such as who was appointed foreman, tbe .signature of tbe foreman, tbe signature of tbe State’s Attorney, what witnesses were sworn and sent, and who was tbe Constable of tbe jury, etc. It is sufficient and proper that tbe record should only set out tbe fact that it was presented by tbe grand jury. There are numerous other cases in line with the above, as State v. Bordeaux, 93 N. C., 560, and State v. Weaver, 104 N. C., 758.

In all tbe cases we have examined in which such questions arose, it appears that tbe bill was indorsed “A true bill,” and tbe question now before us was not under consideration Tbe questions were as to tbe signature of tbe foreman, tbe manner in which tbe bill was presented to tbe Court, and what ought to be spread upon Court record. In none was it denied that tbe bill must be indorsed “A true bill.” In State v. Harwood, 60 N. C., 226, tbe motion in arrest was that tbe record failed to show the indictment was found a “true bill” by tbe grand jury. Tbe opinion of two lines on that feature is not plain. It, however, refers to State v. Guilford, supra, as tbe authority, and we have already shown that upon that case tbe indictment should be indorsed “A true bill.” We have therefore found no decision by this Court on tbe question now presented. Tbe nearest approach is State v. Collins, 14 N. C., 117, 121. Tbe bill was found in Jones County, and removed to Lenoir County. Tbe transcript to Lenoir was considered defective, and a certiorari brought forward all that was needed, and showed that tbe indorsement was a “true bill,” and signed by tbe foreman. Tn bis opinion, HeNdeesoh, C. J., said: “Indeed, I have been much at a loss to see the necessity of any indorsement. The grand jury come into court and make their return, which the court records not from that memorandum made out of court, but they pronounce, or are presumed to pronounce, it in court. It is not the indorsement which is the record, but that which is recorded as the jurors’ response. The indorsement is a mere minute for making the record. But I believe the law is understood to be otherwise.” Here we have a suggestion of the Chief Justice (which is the State’s contention now), and we have his belief that the law in this State is otherwise.

■ Turning to other authorities, we find in Archb. Or. PL 64, that “A true bill,” or “No true bill,” must be indorsed on the indictment, as the evidence satisfies, or does not satisfy, the grand jury. The foreman and jury carry the indictments so indorsed into court, and deliver them to the Clerk, who states to the Court the substance of each, and the indorsement upon it. “In strict legal parlance, an indictment is not so called until it has been found ‘A true bill’ by the grand jury; before that it is named ‘a bill’ only.” 1 Chit. Cr. Law, 324, says: “The jury indorses ‘A true bill,’ or ‘Not a true bill.’ * * * This indorsement ‘A true bill,’ made upon the bill, becomes part of the indictment, and renders a complete accusation against the prisoner. An indictment without such indorsement, signed by the foreman, is a nullity.” In 4 Bl. Comm., 305, it is stated: “If they (the jury) are satisfied of the truth of the accusation, they then indorse xipon it ‘A true bill.’ The indictment is then said to be foxxnd, and the party stands indicted, * * * and the indictment, when so found, is publicly delivered into court.” Same in 2 Hale, ,P. C., 161. This proposition is expressly held in Nomaque v. People, 1 Breese, 145, and in State v. Creighton, 1 Nott & McC., 256, and State v .Elkins, Meigs, 109. In Webster’s Gase, 5 Greenl., 432, tbe bill was certified in tbe usual form, except at tbe bottom of tbe indict ment, and immediately before tbe si gnature of tbe foreman, tbe words “A true bill” were omitted. After conviction tbe defendant moved in arrest of judgment on the ground that there was no legal evidence that tbe indictment was a true bill. This is exactly on all-fours with tbe present ca'se. ¿Judgment was arrested.

Finding, therefore, that the uniform practice in this State and tbe other States, in the absence of statutes, has been settled from immemorial time, we can find no reason for changing proceedings in criminal cases, which would disturb practice in particulars which have, from long usage, acquired the character of legal principles. We can not presume that the jury intended a true bill, because it is equally as easy to presume that they intended not a true bill, in the absence of any indication either way in the indorsement. No inference of a true bill can be drawn from the fact that the foreman returns true bills in open court, because it is also his duty to return bills found not true. The omission may have been inadvertent. We can not tell. It is certain that public officers should be careful in discharging their duties, as they are paid and sworn to do. Suppose a Register of Deeds should furnish a copy of a deed, and sign his name, even officially,without any certification. Such a paper would not be received as evidence, even in a civil proceeding. Code, sec. 1183, is no cure for the omission, as that applies only the informality, or.refinement, “in the bill, or proceeding,” even if the omission was only an informality.

Since writing the above, our attention has been called to Frisbie v. U. S., 157 U. S., 160. That case holds that the omission of the indorsement “A true bill” is not “necessarily, and under all circumstances, fatal, although it is advisable that the indictment should be indorsed.” The opinion proceeds: “It may be conceded that in the mother country, formerly, at least, such indorsement and authentication were essential.” The Court then intimates that in this country the common practice is different, and concludes that “it is advisable, at least, that the indictment be indorsed according to the ancient practice, for such indorsement is a short, convenient, and certain method of informing the Court of their action.” From our review, it appears that the rule varies in the courts of different States. As the rule has been settled in North Carolina ever since her existence as a State, we are not disposed to disturb it, and open the way for each grand jury to adopt its own rule of practice.

Judgment arrested.