158 S.E. 94 | N.C. | 1931
The defendant was indicted for a breach of C. S., 4237, which is as follows: "If any person shall, with intent to commit larceny or other felony, break any seal upon a railroad car containing any goods, wares, freight or other thing of value, or shall unlawfully and wilfully break or enter into any railroad car containing any goods, wares, freight or other thing of value, such person shall upon conviction be punished by confinement in the penitentiary in the discretion of the court for a term not exceeding five years. Any person found unlawfully in such car shall be presumed to have entered in violation of this section."
In addition, the indictment charged the defendant with larceny and with receiving stolen property knowing it to have been stolen. The jury returned a general verdict: "Guilty thereof in manner and form as charged in the bill of indictment." Judgment was pronounced and the defendant appealed upon exceptions stated in the opinion. When this case came on for trial there was another in which A. M. Maddry, J. O. D. Gholson, Arthur O'Kelly, and Luther Smith were jointly charged with the offenses for which the defendant Levy was prosecuted. Anolle prosequi was entered as to O'Kelly, and Maddry, Gholson and Luther Smith pleaded guilty. Before judgment was pronounced against them the case against Levy was called, and before pleading Levy moved that the indictment against him be *587 quashed on the ground that it had been returned as a true bill upon testimony which was incompetent because based entirely upon hearsay, and that no competent evidence had been heard by the grand jury. He offered to prove this by the witnesses who had testified before that body. The trial judge refused to hear testimony to this effect, but said he would permit the defendant to prove during the trial that the bill had been returned upon "improper and insufficient evidence."
When the State rested its case the defendant introduced the two witnesses who had been called before the grand jury, each of whom would have testified (in fact Brown did testify) that his information of the defendant's participation in the offenses charged was based entirely upon hearsay. King, the other witness, then testified that he had been examined by the grand jury; whereupon the court stated that the proposed evidence was not pertinent and stopped the examination. So, the main contention of the defendant is this: not merely that incompetent evidence was considered, but that no competent evidence was heard by the grand jury, and that for the latter reason the bill should have been quashed.
Disregarding as unnecessary for our present purpose the distinction between a motion to quash an indictment and a plea in abatement, we prefer to decide the question squarely on the merits. In reference to it, investigation discloses diversity of opinion. Some of the text-books and decisions adhere to the doctrine that the grand jury should not find an indictment upon insufficient evidence. Others say that the sufficiency of the evidence before the grand jury cannot be inquired into by the Superior Court on a plea to abate or a motion to quash. By others it is written that an indictment should not be returned as a true bill upon the testimony of witnesses who are incompetent. It may be noted that confusion is sometimes caused by using the word "incompetent" as synonymous with "disqualified." Annotation, 31 A.L.R., 1479; 28 L.R.A., 324.
In S. v. Cain,
The defendant seems to rely chiefly on S. v. Coates,
The cases to which we have referred are not authority for the defendant's position. Nor are we inclined to accept his view, although it has the support of writers whose opinions are entitled to great respect. As Underhill remarked, "It would be intolerable in practice to confine grand juries to the technical rules of evidence." Criminal Evidence (3 ed.), sec. 71. The suggested practice would hinder the trial and result in useless delay. It would often require the examination of a number of witnesses, including, perchance, members of the grand jury; it would demand of the judge that he invade the province of the grand jury or exercise the functions of a petit jury in finding the facts from conflicting evidence and passing upon the credibility of witnesses; it would turn the Superior Court into a forum for an unseemly contest between members of the grand jury and those whom they may have charged with crime. Besides, such practice is unnecessary; if the evidence is incompetent it will be excluded by the trial court. *589
We adhere to the decisions of this Court as heretofore declared, but are unwilling to enlarge their scope to the extent proposed by the defendant in this action.
There are several obvious reasons for refusing the defendant's prayer for instructions. We find
No error.