State v. Mertens

14 Mo. 94 | Mo. | 1851

Napton J.,

delivered the opinion of the court.

The 19th section of the 3rd article of an act concerning Practice and Pro. in criminal cases, provides that “no indictment can be found without the concurrence of at least twelve grand jurors; when so found, and not otherwise, the foreman of the grand jury shall certify under his hand, that such indictment is a true bill.” The indictment, upon which Mertens was tried and convicted, was endorsed “a true bill,” by the foreman of the grand jury, but not signed by him. The question is, did this omission destroy the legality of the whole proceedings under the indictment.

The endorsement upon an indictment of “billa vera,,> or “a true bill” was in England regarded as part of the indictment, and necessary to make the accusation complete. Our statute directs this endorsement, and requires the foreman of the grand jury to certify it under his hand. It is not easy to perceive that the directions of the statute have any other object than to secure the authenticity and genuineness of the in» dietment, and when the indictment has been returned into open court, and it is recorded, and filed as a true bill among the records, the whole object of the statute is attained. The 21st section of the same article of the act provides that “indictments found, and presentment made by a grand jury, shall be presented by their foreman, in their presence, to the court, and shall be then filed, and remain as records of such court.’* Here the indictment was duly endorsed “a true bill,” and the records of the court proved that it had been duly and formally brought into open court by the foreman of the grand jury as a true bill, and there filed as such on the records.

We are unable to see any substantial reason for regarding the signature of the foreman as an essential part of the indictment.

We look upon the statute requiring this form of authentication as merely directory. After the defendant has gone to trial and been convicted upon the indictment, it is too late upon a motion in arrest, to cavil upon the omission of the signature of the foreman of the grand jury. We do not regard the omission as fatal.

Judgment reversed and caused remended.