Mose v. State, 35 Ala. 421

35 Ala. 421 | Ala. | 1860

A. J. WALKER, C. J.

The point was made in the court below, and is now pressed in this court, that the defendant could not be subjected to trial upon the indictment in this case, because there was no formal entry of the fact that the grand jury returned the indictment into court. The objection was, not that the indictment was really never returned into court by the grand jury, but that the fact of its return was not recited upon the minutes of the court. The questions presented are, therefore, simply whether the entry upon the minutes, of the bringing of the indictment into court by the grand jury, is necessary to constitute the indictment a legal accusation, and whether such entry is the only legal evidence of the return of the indictment.

Sir "Wm. Blackstone defines an indictment to be, “a written accusation of one or more persons, of a crime or misdemeanor, preferred to, aud presented upon oath by a grand jury.” — 4 Blacks. Com. 302. And Lord Coke says: “ Indictment cometh of the French- word enditer, and signifieth in law an accusation found upon an inquest of twelve or more upon their oath.” — 3 Coke upon Littleton, book HI., chap. XIII, page 553. Our Code (§ 3497) has defined an indictment as “ an accusation in writing, presented by the grand jury to the circuit court, charging a person with an indictable offense.” These definitions show, that the entry, the necessity of which is asserted by the prisoner, is not an element in the constitution of an indictment. But we find farther, from Blackstone’s Commentaries, that if the grand jury are satisfied of the truth of the accusation, they endorse upon it “a true bill,” and that “the indictment is then said to be found;” and that “ the indictment, when so found, is publicly delivered into court.” — 4 Blacks. Com. 306. Farther, it was said in King v. Ford, reported in Yelverton, (page 99,) that the endorsement by the grand jury is the perfection of the indictment: that it touches it principally, and is the life of it. The inevitable deduction from these authorities is, that when a written accusation is properly endorsed, and returned by the grand jury into court, it becomes a valid indictment; and the obligation of the accused to answer it is not destroyed by the clerical omission of a recital upon the minutes, of the fact of the return.

There are decisions in Virginia, Tennessee and Illinois, which seem to stand opposed to our conclusion. — Commonwealth v. Cawood, 2 Virginia Cas. 527, 541, 547; State v. Muziugo, Meigs’ R. 112; Brown v. State, 7 Humph. 155 ; Chappel v. State, 8 Yerger, 166; Rainey v. People, 3 Gilm. 71; McKinney v. People, 2 ib. 551. But with regard to these authorities it is to be observed, that in the Virginia case, there was a dissenting opinion by Judge Barbour, in which Judge Daniel concurred, maintaining the proposition which we have asserted with great force, if not conclusiveness of argumeut; and in Tennessee, (it appears from the case of Brown v. State,) there is a statute requiring indictments to be spread upon the minutes.

The same point arose in this court, in the case of The State v. Clarkson, 3 Ala. 378]; and the court then, without an examination of the authorities, disposed of it in the following language: “ There always is, and necessarily must be, a period in the progress of every prosecution, when the indictment is in fieri; and we are not aware, that any entry made in it, or upon the minutes by the clerk, is necessary to give it effect as a record.” This we regard as asserting, in effect, the same proposition which we have laid down. 'When the paper is properly returned into court, the defendant is legally charged ; and while the entry upon the minutes, of the fact of the bringing in of the indictment, is eminently proper, as affording evidence that the accusation was legally made, it is not indispensable.

There is nothing in the Code militating against this conclusion. Section 3536 prohibits the entry of an indictment at the first term upon the minutes, unless the defendant is in custody, or on bail. This statute proceeds upon the supposition, that an entry upon the minutes was the usual evidence of the presentment in court of an indictment. It presupposes that, and nothing more. It does not imply that such entry is a necessary ingredient of a legal indictment, when not dispensed with by law. The fact of the return of the indictment is shown, prima facie, by the endorsement of the foreman, and the endorsement of the clerk. — Code, § § 3499, 3535. Section 3499 requires that the indictment should be endorsed “ a true bill;” and section 3535 requires that the clerk should endorse it filed ; but there is no statutory requirement that an entry of the return into court should be put on the minutes.

[2.] One of the counts is conceded to be good. That the other is bad, cannot avail the defendant, for the general finding of guilty will be referred to the good count. State v. Lassley, 7 Porter, 226 ; State v. Jones, 5 Ala. 464; Shaw v. State, 18 Ala. 547 ; Farrer v. Ohio, 2 Ohio, (N. S.) 54 ; Stoughton v. Ohio, ib. 562.

[3.] The verdict of guilty is not defective for its omission to specify the degree of the offense. The decisions in Johnson v. State, 17 Ala., and Cobia v. State, 16 Ala., are made in reference to murder committed by a white person. The crime of murder by a slave is not divided into degrees. — Code, § § 3812-3314. Consequently, section 3082 of the Code, which requires that the jury, finding one guilty of murder, should specify whether the defendant is guilty of murder in the first or second degree, has no application to the indictment of a slave for murder.

[4.] Dying declarations are admissible in evidence only “ when the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declarations.” — King v. Mead, 2 Barn. & Or. 405; Johnson v. State, 17 Ala. 618; Oliver v. State, ib. 587. These declarations are admitted from the necessity of the case, to supply the want, which might otherwise exist, of evidence of the circumstances attending homicides committed in secret; and being admissible only so far as the necessity might extend, are restricted to “ the circumstances immediately attending the act, and forming a part of the res gestee.” — State v. Shelton, 5. Jones’ Law, (N. C.) 360; Nelson v. State, 7 Humph. 542. The declarations by the deceased, “ that Mose was the only slave on the place who was at enmity with him, and “ that Mose was runaway,” do not fall within the principle upon which dying declarations are admitted, and the court, in admitting the former of those declarations, erred. The enmity of the slave towards the deceased, a3 previous threats, aud previous attempts to commit the same act would have been, was evidence pointing in this case to the accused as the guilty agent, and was a fact altogether extrinsic of the circumstances attending the homicide.

It is not necessary that we should pass upon any of the other questions presented by the record, as it is not likely that they will again arise.

Judgment reversed, aud cause remanded.