1 S.D. 480 | S.D. | 1891
The defendant was indicted at the May,
Section 7236, Comp. Laws, says: “When an indictment is found, the names of the witnesses examined before the grand jury must, in all cases, be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the court.” The statute requiring the names of the witnesses upon whose evidence the indictment is found to be inserted at the foot of it, or to be indorsed upon it, is mandatory, and a disregard of this requirement is sufficient ground to authorize the court, upon proper motion, made in apt time, to quash the indictment. Section 7283, Comp. Laws, says: “The indictment must be set aside by the court in which the defendant was arraigned, and upon his motion in either of the following cases: * * * (2) When the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment or indorsed thereon. ” This provision of the statute but emphasizes the mandatory character of Section 7236. It must be presumed that this requirement was made for some just and wise purpose. No doubt che object was for the benefit of the accused; to give him the opportunity of knowing who were his accusers, ana by whom the state expected to establish the charge preferred, in order that he might be the better prepared to meet it. To protect the innocent and punish the guilty, are the two great objects to be kept in view in the administration of criminal jurisprudence. While, upon the one hand, the law will hold the offender to a strict accountability, it should, upon the other, extend to the accused all possible facilities for a fair, full, and impartial trial. The names of the witnesses upon the indictment will inform him of the authors of the prosecution, and thus enable him to prepare for his defense. For his benefit
The attorney for the state contends that these provisions are directory and not mandatory, and calls our attention to a number of state decisions upon statutes similar to our own upon this subject, holding them to be directory. An examination of the statutes upon which these decisions are rendered will disclose the fact that, in none of these states, statutory provisions exist declaring what the effect of an omission to inr dorse the names of witnesses upon whose testimony the indictment was found, shall be. Our statute not only says that the “names of the witnesses examined before the grand jury must in all cases be inserted at the foot of the indictment or indorsed thereon, ” but it also declares that the indictment must be set aside upon proper motion when this is not done. Nothing can be more emphatic. The statute is a command, coupled with a penalty. The face that the names of all the witnesses upon whose testimony the indictment was found were not inserted at the foot of it, or indorsed upon it, is not disputed. The question of the materiality of their testimony cannot be raised, because a court is precluded from going into that question to ascertain that fact. If w itnesses were examined at all before the grand jury upon a case, and an indictment is afterwards found againgt the party accused, the presumption is that all