28 N.C. 440 | N.C. | 1846
The following facts appear from the report of the case by the presiding judge and from the record:
This was an indictment against the defendant for an assault and battery on one Kenneth Black. The assault and battery were fully proven, but the affair took place on 10 November, 1841, and the indictment was not found until the last week in February, 1844, and the defendant's counsel insisted on his acquittal upon the ground that the prosecution had not been commenced within the time (441) prescribed by law. The solicitor then offered in evidence a presentment of the grand jury made at the Fall Term, 1843, being the last week in August but one, a paper-writing in the words and figures following, to wit:
STATE OF NORTH CAROLINA — MOORE COUNTY. Fall Term, 1843.
The jurors for the State, upon their oath, present Irvine E. Cox for an assault on one Kenneth Black in November, 1841.
Daniel McKinnon, Alex. McKenzie, State's evidence. *316
This paper was signed by none, but was entered as follows:
STATE ) v. ) Presentment by grand jury, William Shaw, foreman IRVINE E. COX. )
And the words, "William Shaw, foreman," were in the proper handwriting of William Shaw, foreman of the grand jury at that term. It was in evidence that upon the paper being presented, the solicitor for the State directed witnesses to be summoned to the next term of the court, that a bill of indictment might be sent accordingly; all which was done.
The solicitor on the trial insisted that this paper was a presentment of the grand jury, authenticated by their foreman, and was a commencement of the prosecution in the terms of section 8 of chapter 35 of Revised Statutes.
On the part of the defendant it was objected that the said paper was not a presentment of the grand jury, because not signed by twelve of the body, and, if only the signature of the foreman were required, it was not in fact signed by him, but only indorsed, and, if a presentment, did not prevent the operation of the statute.
(442) The judge left the case to the jury, and by consent a special verdict was rendered, subject to the opinion of the court, as follows:
The jury said that the defendant did assault and beat Kenneth Black, as charged in the bill of indictment, on 10 November, 1841; that the paper-writing in the words and figures following, to wit:
STATE OF NORTH CAROLINA — MOORE COUNTY. Fall Term, 1843.
The jurors for the State, upon their oath, present Irvine E. Cox for an assault on Kenneth Black in November, 1841.
Daniel Nicholson and Alex. McKenzie, State's evidence.
And endorsed as follows:
STATE ) v. ) Presentment by grand jury, William Shaw, foreman IRVINE E. COX. )
was returned into the court by the proper officer at Fall Term, 1843, and that the signature of William Shaw, foreman, is in the proper handwriting of William Shaw, the foreman of the said grand jury at that term; that upon the return of the said paper the solicitor directed subpoenas to issue for witnesses, returnable to Spring Term, 1844, that a bill of indictment might be preferred; that accordingly, at Spring Term, 1844, the bill of indictment was sent and a true bill found by the *317 grand jury; and if upon these facts the court is of opinion that the prosecution was commenced in proper time, then the jury find the defendant guilty, and if otherwise, they find him not guilty. Whereupon, the court having rendered judgment for the defendant, the solicitor appealed on behalf of the State to the Supreme Court, which appeal is allowed.
The record showed the following verdict: "The following jury, sworn, etc., who find the defendant guilty." The defendant was indicted for an assault and battery The record shows that he was convicted by the jury. The case sent up by the presiding judge, however, states: "The cause was committed to the jury, who, by consent, found a special verdict, subject to the opinion of the court." What is called a special verdict is then set forth, upon which judgment was rendered for the defendant. Between the record and the case, in stating the verdict, there is obviously a very essential difference — in the one it is general, in the other special, depending upon the opinion of the court. We have no doubt the case correctly represents the facts, and that it was the intention of the parties to convert the general verdict of guilty into a special verdict. But unfortunately it was not done. The verdict is still left upon the record as the jury pronounced it. They have not said that they found a special verdict. We have no power to alter the record, and by it we are informed that the defendant was found guilty. Upon such a verdict the court had no power to discharge the defendant. It was entirely within the power of his Honor to have ordered, if he had thought proper so to do, the general verdict to be set aside, and to award a venirede novo, or to have made the verdict on the record conform to the facts of the case. He has done neither — doubtless, from inadvertence. The judgment pronounced by him is erroneous and must be reversed.
Our labor, so far as this case is concerned, might here close. But other points are presented to us upon which it was obviously the intention of the parties to procure the opinion of this Court, and as they are questions of practice, occurring at every court and upon which it is believed much misapprehension exists, we think it our duty to examine and decide them.
The offense charged against the defendant was committed in November, 1841, and the indictment under which he was tried was found by the grand jury at Spring Term, 1844, of Moore Superior Court, more than two years thereafter. On behalf of the defendant (444) *318 it was insisted that he was entitled to his acquittal because of the length of time which elapsed between the offense and the finding of the indictment. To meet the objection the prosecuting officer gave in evidence, as a presentment made by the grand jury at Moore Superior Court at Fall Term, 1843, a paper in the following words: "State of North Carolina, Moore County, Fall Term, 1843. The jurors for the State, upon their oath present Irvine E. Cox for an assault on Kenneth Black in November, 1841. Daniel McKinnon and Alexander McKenzie, State's evidence." This was indorsed, "State v. I. E. Cox. Presentment by the grand jury," and signed on the back, "William Shaw, foreman." It was contended that a presentment is not the commencement of a prosecution; but we are clearly of opinion that it is, and, when made within two years after the offense is committed, is in time. We think so from the nature of a presentment, and from the fact that the Legislature in limiting the period within which prosecutions for misdemeanors of the character of the one charged against this defendant shall be commenced uses the words, "presentment or indictment." Rev. Stat., ch. 35, sec. 8. It was further denied that in this case any legal presentment had been made; and two objections were urged why the paper offered in evidence is not one. The first is that it is not signed by all the jury; the second, that if that is not necessary, it must be signed by the foreman, while in this case it is not, his name being indorsed. It is true, the paper returned into court by the grand jury, as containing their presentment, is usually signed by all the jury; but it is merely a practice, not required by any law or principle we are acquainted with; nor is any form prescribed in any book of practice.Justice Blackstone, 4 Com., 304, says: "A presentment, properly speaking, is the notice which a grand jury takes of an offense from (445) their own knowledge or observation." This must be made known to the court, and lays the foundation, when made, for the indictment. In passing upon the latter, "if the jury are satisfied of the truth of the accusation, they indorse it Billa vera, or true bill. It is then said to be found. So if they are not satisfied, it is indorsed ignoramus, or not a true bill, and the party is discharged." In both cases the bill is delivered in open court; but it was never known that the bill was signed by the jury, nor are we apprized it ever was conceived necessary. In all their intercourse with the court they act through their foreman. He delivers in the bill, and responds to the questions propounded to them, and indorses it as their presiding officer. The bill, however, being the act of the jury, they ought in every instance to be in court when one is returned, and so in making a presentment. And to ascertain that they are present, they ought always to be called by the clerk. But, as they never sign the bill of indictment, why should it be thought necessary to *319 sign the presentment? The latter is no more the act of the grand jury than the former, and, indeed, an indictment is a presentment. The language of the record is "juratores presentant," 2 Inst., 123. When either a presentment or indictment is returned into court, the fact is recorded. In the present case the record from Moore Superior Court states that at Fall Term, 1843, a grand jury was duly impaneled and sworn and William Shaw appointed foreman. It then states as follows: "And be it further remembered, that at the said term of our said court William Shaw, foreman of the grand jury, returned into open court a paper-writing in the words and figures following," etc. It then sets out the paper before stated. The error then consisted in considering that paper as the presentment, when in fact it was but the usual evidence of what the jury had done, from which the clerk drew up his record showing that the jury had made the presentment.
The second objection is, in our opinion, equally untenable. (446) It is settled in this State that an indictment need not be signed by any one. It is good without it, because it is the act of the grand jury, delivered in open court by them. In S. v. Collins,
The cause is remanded for further proceedings according to law.
PER CURIAM. Remanded.
Cited: S. v. Brown,
