Barlow v. State

Citation56 S.E. 131,127 Ga. 58
PartiesBARLOW v. STATE.
Decision Date12 December 1906
CourtGeorgia Supreme Court

Syllabus by the Court.

In this state all special presentments of the grand jury charging defendants with violations of the penal laws are treated as indictments.

Where a special presentment had the name of the foreman of the grand jury, with his official designation as such, signed on the back of it, and below such signature were the printed words "special presentment," this was a sufficient indorsement to show that the grand jury found such special presentment, and there was no error in overruling a motion to quash it.

Evidence of an unlawful sale of intoxicating liquor to an agent, with notice that he was purchasing for his principal, will not support an allegation in an indictment of a sale to the agent as an individual.

Error from Superior Court, Butts County; E. J. Reagan, Judge.

Edridge Barlow, alias Ells Barlow, was convicted of an illegal sale of liquor, and brings error. Reversed.

Frank Z. Curry and O. M. Dukes, for plaintiff in error.

O. H B. Bloodworth, Sol. Gen., for the State.

LUMPKIN J. (after stating the above facts).

1, 2. Under the English practice, where it was desired to have the grand jury act upon an indictment, a draft of it, termed a "bill," was engrossed on parchment and laid before the grand jurors. They examined witnesses in reference to its allegations, and, if they found them true, and so declared it became an indictment. The bill had to be found true by a majority of the jurors, which majority had to consist of at least 12. In Archbold's Crim. Pl. & Pr. (3d Ed.) 102, it is said: "The finding must be indorsed on the indictment, and is 'parcel of the indictment and the perfection of it,' and 'touches it principally, for it is the life of it.' Railroad v. Ford, Yelv. 99. And the bill as found must be delivered in open court ( Railroad v. Thompson, 1 Cox, 268), and it should be signed by the foreman, but absence of the signature is not fatal if the bill was delivered by the foreman in open court and read in his presence (Railroad v. Sidoli, 1 Lewin 55)." 4 Bl. Com. 305. The action of the grand jury was indicated by the indorsement "A true bill," or "Ignoramus," or, at a later date, instead of the latter, "Not found," and all the bills so acted on were returned by the grand jury to the court. In this way the indorsement became the evidence of their action. In this country in many of the states the prosecuting officer attends the grand jury and postpones drawing the bill until the evidence has been heard and he is advised whether or not they will indict the accused person and for what offense. In Frisbie v. United States, 157 U.S. 163, 15 S.Ct. 587 (39 L.Ed. 657), it is said: "But in this country the common practice is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them and, after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment. Thus they return into court only those accusations which they have approved, and the fact that they thus return them into court is evidence of such approval, and the formal indorsement loses its essential character." Accordingly it was held in that case that "the omission of the formal indorsement of an indictment as 'a true bill,' signed by the foreman of the grand jury, is not necessarily, and under all circumstances, fatal, although it is advisable that the indictment should be indorsed." See, also, State v. Magrath, 44 N. J. Law, 227, 228; Price v. Commonwealth, 21 Grat. (Va.) 846, 856; Commonwealth v. Smyth, 11 Cush. (Mass.) 473, 474. In Bishop's Criminal Procedure (4th Ed.) § 700, it is said: "In the absence of a mandatory statute, the doctrine best sustained by reason and authority is that the words 'A true bill' and the signature of the foreman may be dispensed with if the fact of the jury's finding appears in any other form in the record.

When the accusation was found by a grand jury without any bill being brought before them, and was afterwards reduced to a formal indictment, it was called a presentment, which, it has been said, was regarded merely as instructions for an indictment, which was drawn by the proper officer on the presentment being delivered into court." 2 Hawkins' P. C. 287; Bishop's Cr. Proc. (4th Ed.) § § 136, 137.

In this state the difference between an indictment and a special presentment has been abolished, with respect to the requirements of law in regard to trials under them, a mere technical distinction remaining that in an indictment the accusation is presented by a prosecutor, and in a special presentment it is preferred by the grand jury without a prosecutor. Groves v. State, 73 Ga. 205. The form is substantially the same, whether the grand jury indicts or presents. Pen. Code 1895, § 929; Foster v. State, 41 Ga. 582. Special presentments charging defendants with violating the penal laws of the state are treated as indictments. The defendants are arraigned and placed upon trial upon such presentments without the necessity of formal indictment, as if the presentments were themselves indictments. It is declared by the Penal Code of 1895, § 931 that "it shall not be necessary for the clerk to enter such presentments in full upon the minutes, but only the statement of the case, and finding of the grand jury as in cases of indictments." Here the practice as to the return of indictments is not altogether like that stated by the Supreme Court of the United Stated in the Frisbie Case, and which appears to prevail in New Jersey, Virginia, and other states. Thus, in State v. Magrath, 44 N. J. Law, 229, supra, it is stated that there are no bills, in this course of law, which are marked "Not found." In Georgia bills are returned, whether the finding is "A true bill" or "No bill." While there is no direct statute on the subject of the return, such has been the practice, and this is recognized in the Penal Code of 1895, § 930, where it is declared that "two returns of 'No bill' by grand juries, on the same charge or accusation, shall be a bar to any future prosecution for the same offense, either under the same or another name, unless such returns have been procured by the fraudulent conduct of the person charged, on proof of which, or of newly discovered evidence, the judge may allow a third bill to be presented, found, and prosecuted." If the practice were, as in some jurisdictions, to make no return of bills of indictment except where accusations are approved as true, this section would have no application, and there would be no means of determining that there had been two returns of ""No bill." It may be that, where an investigation originates with the grand jury themselves, without prosecution, if they determine to make no presentment, they are not bound to make a return at all, but the sections of the Penal Code above cited indicate that the proper practice is to make a return of "True bill" or "No bill" on an indictment, and that, where a special presentment is made, charging a crime, the finding of the grand jury is to be entered on the minutes as in cases of indictments. The common practice in this state, though not exclusive, is for the indictments or special presentments of the grand jury to be returned to the court, not by them in a body, but through their sworn bailiff. But this must be done in open court. Danforth v. State 75 Ga. 614, 58 Am.Rep. 480; Sampson v. State, 124 Ga. 779, 53 S.E. 332. Where the grand jury are not present and formally delivering the indictments, the entry becomes more important. As will appear below, we are not prepared to say that this is the sole mode in which it might be shown that the indictment was returned, although the entry was not signed, if other proper record evidence of the fact appears. In McGuffie v. State, 17 Ga. 497 (8), it was held that an objection that the return of "true bill" upon an indictment was signed by a grand juror, but not as foreman, made by motion in arrest of judgment after trial and verdict, was properly overruled. Starnes, J., in...

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