State v. Muzingo ( 1838 )

Green, J.

delivered the opinion of the court.

In this case the defendant was prosecuted for making an affray. There was no entry made on the minutes of the court that the grand jury returned said presentment into open court, but the presentment, having been filed with the clerk, signed by all the grand jurors, the defendant was put upon his trial and found guilty by the jury.

A motion was made in arrest of judgment, because it did not appear, by the record, that the presentment had been returned into court. And the judgment was arrested. The attorney general on behalf of the state appealed to this court.

We are of opinion this judgment was improperly arrested. The principle in the case of Chappel vs The State, 8 Yer. 170, has very little application to the case of a presentment. An indictment is only signed by the foreman of the grand jury, and therefore, unless it appears from the record, that the bill was returned by the jury into open court, “a true bill,” it cannot appear that it has been before them, and found by them. Not so in the case of a presentment. That is signed by all the jurors, and we have thus an assurance that they have acted on it and found the facts it presents. An entry on the record, that they had found the presentment, would be no more satisfactory of the existence of that fact than their signatures to the paper. We therefore think the court erred in arresting this judgment, and order that its judgment be reversed.

And this court proceeding to give such judgment as the circuit court shoo'd have given, order and adjudge that the defendant be fined five dollars, and pay the costs of the prosecution, and of the appeal to this court.