Renigar v. United States

• Decision Date: 03 June 1909
• Docket Number: 834.
• Citation: 172 F. 646
• Parties: RENIGAR v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

172 F. 646

RENIGAR v. UNITED STATES.

No. 834.

United States Court of Appeals, Fourth Circuit.

June 3, 1909

Thomas L. Moore, U.S. Atty. (Samuel H. Hoge, Asst. U.S. Atty., on the brief).

Before PRITCHARD, Circuit Judge, and MORRIS and BRAWLEY, District judges.

BRAWLEY District Judge.

The case is before us upon a writ of error to review a judgment of the United States District Court for the Western District of Virginia, whereby plaintiff in error was sentenced to serve two years in the penitentiary at Atlanta, Ga., and to pay a fine of $5,000, for the violation of section 5440 of the Revised Statutes (U.S. Comp. St. 1901, p. 3676).

There are numerous assignments of error, but we have deemed it unnecessary to consider any except that presented in defendant's bill of exceptions No. 15, wherein the facts relating to the return of the alleged indictment as certified by the court are as follows:

'Defendant's Bill of Exceptions, No. 15.

'Be it known that on the 21st day of March, 1908, after the above W. H. Renigar had been put upon trial, and several of the witnesses for the government had been examined, the clerk of this court entered an order herein, dated March 18, 1908, which said order reads as follows:

''Order as to Finding Indictment by Grand Jury.

"Entered March 18, 1908.

"The grand jury again appeared and reported (among others) the following indictment, to wit:

"Indictment vs. Pinkney Ayers, W. H. Renigar, W. H. Phillips and Jas. N. Bordwine, for vio. sec. 5440, R.S.

"A True Bill.'

'Which order was spread upon the order book, and for the first time known to counsel for the defendant on this the 21st day of March, 1908.

'Whereupon counsel for the defendant moved the court to correct said order, and to have the same to conform to the facts in reference to the alleged return of the alleged indictment, which said facts the court here certifies were as follows:

'On the 17th day of March, 1908, in the trial of the case of The United States v. Pinkney Ayers, the evidence was concluded on the afternoon of said March 17th, and court was adjourned until 10 o'clock a.m. March 18, 1908. On March 18th the judge of this court, in his office beneath the courtroom in the Federal Building in the city of Lynchburg, by appointment, met counsel for government and for the said Pinkney Ayers, at or about 9 o'clock a.m., and the said judge and counsel were engaged in the consideration of the instructions in the case of The United States v. Pinkney Ayers until about 2:30 o'clock p.m., with the exception of about one hour, during which they were separated and were at lunch. While the judge and counsel were so engaged, in the office of the judge beneath the courtroom, the paper herein, purporting to be an indictment, was by the foreman of the grand jury, who came alone into the courtroom, handed to the clerk at his desk in said courtroom, and by him marked 'Filed,' about 12 o'clock noon, while the judge and counsel for Pinkney Ayers, who were also of the counsel for the defendant in this case, were engaged in the judge's chambers; the judge of this court never having at that time been in the courtroom at any time during that day and did not make his appearance in the courtroom until about 2:30 o'clock p.m., an hour or more after the said filing of the said alleged indictment, since which appearance of the judge in the courtroom no proceedings have been had upon the said indictment, except such as appear of record herein.

'Counsel for defendant moved the court to correct its order above set forth, and to make the same conform to the state of facts herein set out, and at the same time stated to the court the fact that the indictment had been handed to the clerk and marked 'Filed' in the absence of the judge from the courtroom was known to counsel for defendant on the 18th day of March, 1908, at 1:30 o'clock p.m., and before pleading in abatement or in bar of the said alleged indictment; the court stating that the jury, clerk, marshal, and other officers of the court did meet in the courtroom at 10'clock a.m. on the 18th day of March, and were simply awaiting the return of the judge until he could finish the consideration of the instructions, which for convenience was being done in the judge's chambers, on the floor below; also that the court has, at a previous term, given instructions to the clerk and to the assistant district attorney that no further announcement should be made of an indictment found by the grand jury, and that the same, after indorsement, should be brought by the foreman and handed to the clerk, who would thereupon mark the same 'Filed,' and proceed to make the regular order of entry; the reason for such instruction being that frequently parties who were indicted learned of the facts through the public announcement thereof in the courtroom before capiases for their arrest could be served, thus leading to difficulties in making arrests and to flights.

But the court certifies that the defendant W. H. Renigar was in attendance upon this court on a bond not to depart without leave of court, and that nothing contained in the direction hereinbefore referred to in any manner applied to this particular case.

'It being conceived, therefore, by the judge of the court that the indictment was in legal effect returned into court and entered, and that the order as written by the clerk is in proper from, and as the court does not conceive that the defendant would be prejudiced by its refusal to now change the said order, did overrule the motion of counsel for defendant.'

The fifth amendment to the Constitution provides that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury. As the statute authorized, and the court imposed a sentence of two years in the penitentiary, there can be no question that the defendant was charged with an infamous crime (Ex parte Wilson, 114 U.S. 426, 5 Sup.Ct. 935, 29 L.Ed. 89; Mackin v. United States, 117 U.S. 352, 6 Sup.Ct. 777, 29 L.Ed. 909), and a fundamental prerequisite to the defendant's trial was an indictment by the grand jury. Does a paper purporting to be an indictment upon which the foreman has indorsed 'A True Bill,' handed to the clerk, when the court is not in session, and when none of the grand jury except the foreman are present, conform to those settled usages and modes of proceeding which from the earliest days have governed the finding of indictments? 1 Chitty on Crim. Law, 324, describes the mode in which the grand jury returns the results of their inquiries to the court, by indorsing 'A True Bill' if found, and 'Not a True Bill' if rejected; and says:

'When the jury have made these indorsements on the bills, they bring them publicly into court, and the clerk of the peace at sessions, or clerk of assize on the circuit, calls all the jurymen by name, who severally answer to signify that they are present, and then the clerk of the peace or assize asks the jury whether they agreed upon any bills, and bids them present them to the court, and then the foreman of the jury hands the indictments to the clerk of peace or clerk of assize.'

4 Blackstone, 306, also describes the functions of the grand jury and the methods of its proceedings, the necessity of 12 at least assenting to the accusation, and adds:

'And the indictment when so found is publicly delivered into court.'

A later text-writer (1 Bishop on Crim. Procedure, Sec. 869) says:

'When the grand jury has found its indictments, it returns them into open court, going personally in a body.'

The Compilation, 22 Cyc. 210, cites cases from 15 states to support the proposition in the text that the 'finding by a grand jury of a true bill and indorsement thereon to such effect are not alone sufficient to render it valid as an indictment, but it is found necessary that the bill should be presented or returned by the grand jury in open court. ' It would unduly extend this opinion to cite all of these cases, and we limit ourselves to an examination of cases in this, the Fourth circuit, and, first, as to the practice in the state of Virginia, where this case arose.

In Commonwealth v. Cawood, 2 Va.Cas. 541, decided in 1825, Judge Brockenbrough, delivering the opinion of the court, says:

'The accusation in due and solemn form is as indispensable as the conviction. What, then, is the solemnity required by law in making the accusation? The bill of indictment is sent or delivered to the grand jury, who, after hearing all the evidence adduced by the commonwealth, decide whether it be a true bill or not. If they find it so, the foreman of the grand jury indorses on it 'A True Bill,' and signs his name as foreman, and then the bill is brought into court by the whole grand jury, and in open court it is publicly delivered to the clerk, who records the fact. It is necessary that it should be presented publicly by the grand jury, that is the evidence required by law to prove that it is sanctioned by the accusing body, and until it is so presented by the grand jury, with the indorsement aforesaid, the party charged by it is not indicted, nor is he required or bound to answer any charge against him which is not so presented. * * * The circumstance that this bill is indorsed a true bill and signed by David Campbell, foreman, affords no record proof that the bill was found by any grand jury, nor particularly by this grand jury. That gentleman may have been frequently the foreman of other grand juries in the same court, and though we all know as men that he would not sign any paper as foreman without being really so, yet as judges we must require record proof that he was authorized by the grand jury of which he was foreman to make...