Chappel v. State

16 Tenn. 166 | Tenn. | 1835

Catron Ch. J.

delivered the opinion of the court.

In the record before the court, a bill of indictment is found, endorsed c‘a true bill,” and this endorsement signed by the foreman of the grand jury; but no evidence or entry appeal’s of record, showing that the indictment was returned into court by the grand jury, and the question is, can the conviction be permitted to stand.

The accusation against the defendant is complete in form, by the face of the indictment, and the endorsement on it of “a true bill,” signed officially by the foreman of the grand jury; which endorsement, when the indictment is returned into court, received and filed, becomes part of the indictment. But when do the indictment and endorsements become part of the record? Here, as in England, when the jury has found the bill, and the proper endorsements are made, it brings them publicly into court, and the clerk calls the jurors by name, who answer, to show that at least twelve are present, for less cannot find the bill; and they are asked if they have agreed upon any bills, when, by their foreman, the jury presents the bills to the clerk, who asks them if they agree; the court shall alter as to matters of form, &c. (1 Chitty’s Cr. L. 266).

Were this form not observed, great irregularity might creep into practice, with grand juries; and in many instances, less than twelve, in fact, agree to the- finding. Therefore, without an exception known to this court, the practice in this State has been to make a record of the fact, that the bill has been found, to wit: “this day the grand jury returned into open court, a bill of indictment against A B, for larceny, a true bill, and retired to consider of further presentments,” &c. The court is of opinion, this practice is in accordance with the safety of the citizen, and that no less evidence than record evidence can be received to establish the fact, that the accused has been indicted in due form by the grand jury, the returning the bill into court being a judicial act. No evidence existing that the present bill of' indictment was found by the grand jury, the defendant could not be legally tried upon it, nor can -he be punished, more than if the indictment had not been found a true bill, and merely filed by the solicitor. The judgment must be arrested, and the defendant be committed, or bound to appear at the next circuit court for Hickman county, to answer for the charge alleged against him.

Judgment arrested.