26 Mich. 496 | Mich. | 1873
The plaintiff in error was tried and convicted in the circuit court for Bay county, for burglary.
After several witnesses had testified on the part of the people, and before the prosecution had rested, the prosecuting attorney called one William Grandy as a witness. The defendant (plaintiff in error) 'objected to his being sworn, and to his competency, because his name was not indorsed upon the information upon which he was being tried. But, it being satisfactorily shown to the court, that the prosecuting attorney was not apprised that Grandy was a material witness before the trial commenced, nor until the time he was thus called, the court permitted his name to be then indorsed on the information; and the witness was sworn, and testified to admissions made to him by the defendant, tending to prove his guilt. The admission of this evidence is the only error assigned.
The common law did not require the names of any of the witnesses to be indorsed upon the indictment, for any purpose connected with the trial. But, as the witnesses who were to testify before the grand jury, were sworn in open court before they were sent before the grand jury, a list of the witnesses intended to be examined before that jury, was required to be indorsed on the back of the bill, as drawn up to be laid before them. This was required for two purposes: First, That the crier or other officer whose duty it was to swear the witness, might know who were to be called and sworn, and that he might certify to their being sworn, which he did, by adding after their names, “sworn in court;” and second, that the grand jury
In this mode, it is true, a defendant indicted for a misdemeanor, incidentally got the benefit of a list of the witnesses who had testified before the grand jury; because, in cases of misdemeanor he was entitled to a copy of the indictment; but in cases of felony, he failed to receive even this incidental benefit, as in such cases he was not entitled to a copy of the indictment. — 1 Chitty’s Cr. L., 303-305.
But our statutes have adopted a fairer and more humane principle; and section nineteen of chapter 164 of the Revised, Statutes of 1846 (Comp. L., 1871, § 7897), while it recognizes the right of the prosecution to avail itself of any. testimony besides that given before the grand jury, and all subsequently discovered evidence, provides that, “ Indictments found by a grand jury, with the names of the com.plainant and all the witnesses indorsed on the back thereof, ‘ shall be presented by the foreman,” etc. This provision clearly applies only to the witnesses sworn before the grand jury; and would not prevent the calling of any other witnesses, though their names were not so indorsed. — Commonwealth v. Locke, 14 Pick., 485; and by section twenty-two of the same chapter, all persons indicted for any offense, after being arrested, or having recognized to appear, are entitled to “a copy of the indictment and of all indorsements thereon.”
By the act of 1859, “ to provide for the trial of offenses upon information” (Comp. L., ch. 261, § 4), it is provided that the act relating to indictments, approved February 10th, 1855,. “and all other provisions of law applying to prosecutions upon indictments, to writs,” etc., etc., “ and to all other proceedings in cases of indictment,” etc., “shall, in the same manner and to the same extent, as near as may be, apply to
This would be a new feature in the administration of the criminal law, which no court ought ever to adopt without the express requirement of the legislature, and which we cannot suppose any intelligent legislature will be likely to .adopt, with any reference to an honest administration of justice.
The ruling of the circuit court was clearly correct, and the judgment of the court must be affirmed.
