Terry v. State

White, Presiding Judge.

There are only two causes known to our law permissible and sufficient to set aside an indictment: “First, that it appears by the records of the court that the indictment was not found by at least nine grand jurors, etc.; second, that some person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting on the same.” (Code Grim. Proc., Art. 523.)

In this case the defendant’s counsel filed a plea in abatement and to set aside the indictment, in which it was alleged in substance that the defendant had been indicted at.the April term of the District Court for the same offense as charged in this indictment. That at the October term, after a full hearing, upon motion, the court quashed the indictment found at the April term, and that the grand jury then in session, without calling any witnesses before them, and acting solely upon the quashed indictment, returned and presented this indictment for the same crime. This plea or motion was overruled.

We know of no law in this State which authorizes our courts to go behind an indictment properly returned into court, and inquire into the evidence, or the sufficiency of the evidence, upon which the grand jury found and presented it. Under our system all the grand jury proceedings with regard to the evidence before them is contemplated to be had and kept profoundly secret and exempt from investigation, save in the exceptional case mentioned in the statute (Code Crim. Proc., Art. 384), and even the witnesses testifying before them are required under oath to keep secret the proceedings had in their presence. (Code Crim. Proc., Art. 407.) The presumption of law is that the bill returned as found by them was so found “ after all the testimony which is accessible to them has been given in respect .to the criminal accusation” preferred by them. (Code Crim. Proc., Art. 411.)

Opinion delivered November 14, 1883.

A different rule prevails in Alabama, but it is on account of a statute of that State which declares that “the grand jury, in the investigation of a charge for any indictable offense, can receive no other evidence than is given by witnesses before them, or legal documentary evidence.” Under this statute it has been held that “the grand jury has no right to find an indictment upon another indictment against the respondent for the same offense, found by another grand jury at a previous term, which has been quashed.” (Sparrenberger v. The State, 53 Ala., 481; S. C., 2 Am. Crim. Rep. [Hawley], p. 470.) We have no such statute, and under our practice the court did not err in overruling the motion.

It is claimed that the court erred in overruling the motion to quash the indictment in this case, because the indictment did not allege that the stolen property was the joint property of the two alleged owners. This objection is fully answered by the statute, which provides that “ where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all, or either of them.” (Code Crim. Proc., Art. 426.)

Again, it is urged that the court erred in permitting, over objection of defendant, testimony going to prove that other articles were stolen and found besides those alleged in the indictment. These other articles were part of the fruits of the crime which defendant had committed, and evidence in regard to them was properly admitted against him.

We have examined the record carefully, and can find no error for which the judgment should be reversed, and it is therefore affirmed.

Affirmed.