43 S.C. 108 | S.C. | 1895
The opinion of the court was delivered by
The agreed statement of facts upon which the case was heard by his honor, Judge Witherspoon, together with the order of Judge Witherspoon and appellant’s exceptions, will be set out in the report of the case. His honor, Judge Witherspoon, states in his order that the attorney for the defendant moved for the discharge of the prisoner, on the grounds that “the bill found by the grand jury was not
In Thomp. & Mer. on Juries, section 607, it is said: “It is' provided by the sixth amendment to the Constitution of the Hnited States, among other things, that ‘in all criminal prosecutions the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for ob-
In section 608, Ibid., it is said: “The grand jury is not necessarily deterred from finding an indictment, because, at the time the charge is presented to them, it is undergoing examination before a magistrate. This circumstance has only a persuasive force with the body to postpone action upon the charge. Cases may be readily imagined where it is highly important to proceed by indictment without delay, and the law does not interfere with the exercise of discretion by the grand jury in such emergencies.”
In section 610, Ibid., it is said: “In view of the fact, that the grand jury have, from time immemorial, possessed the power to present for offences other than those brought to their attention by bills formally prepared, it is clear that so important a right of the people will not be divested, unless by the,positive terms of a statute which will admit of no other construction. The statutes generally provide for the examination of accused persons by committing magistrates, and direct, with considerable detail, how this proceeding shall be conducted. Nevertheless, the accused cannot, by virtue of such statutes, show, in abatement of an indictment, that no preliminary examination was had. The examination enjoined is a mere expedient to prevent the suspected person from escaping, or for preserving the evidence, or keeping the witnesses in control. Otherwise, it is clear that no case could be brought before a grand jury, unless the defendant were under arrest, and this he might elude until the offence should be condoned by a statute of limitation. Furthermore, the determination of the magistrate to discharge an accused person, would be conclusive against the
In section 611, Ibid., it is said: “Indictments, however, originate with the grand jury in a variety of ways, which will now be noticed: 1. By the court giving a matter of general notoriety specially in charge. 2. By the exercise of powers, ex officio, of the prosecuting officer. 3. From the knowledge of the grand jury. 4. By the exercise of general and special inquisitorial powers by that body. The procedure here indicated is not recognized by all courts. Few, if any, courts would deny what is stated in propositions 1 and 2.”
In section 613, Ibid., it is said: “Another exception to the general rule is the conceded right of the attorney general, or other prosecuting officer, to bring to the attention of the grand jury the circumstances of a particular case, for their action. In practice, this power should be cautiously exercised — generally under the direction of the court — and never unless the public good demands it. It is evident that this emergency includes a limited class of cases — for example, such as where the accused has fled the State, and an indictment found may be required previous to demanding him from a neighboring State, or where a less prompt mode of proceeding might lead to the escape of the offender. When the public officer exercises this power without some pressing and adequate necessity to justify the course, it is the duty of the court to set the officer’s act aside. The action of the officer and the court can be made the subject of review by an appellate court only when the abuse of their powers is both manifest and flagrant.”
There is nothing in the “Case” showing that the exercise of this power was abused.
It is the judgment of this court, that the order of the Circuit Court be affirmed.