McDonald v. State

• Decision Date: 09 October 1922
• Docket Number: 177
• Citation: 244 S.W. 20,155 Ark. 142
• Parties: MCDONALD v. STATE
• Court: Arkansas Supreme Court

244 S.W. 20

155 Ark. 142

MCDONALD v. STATE

No. 177

Supreme Court of Arkansas

October 9, 1922

Appeal from Greene Circuit Court, Second Division; R. E. L. Johnson Judge; reversed.

Judgment reversed and cause remanded.

M P. Huddleston for appellant.

J S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.

OPINION

WOOD, J.

Appellant appeals from a judgment of conviction on an indictment charging him, in good form, of the crime of carnal abuse of one Rebecca George. The indictment was returned by the grand jury of Greene County on the 7th day of December, 1921.

1. The appellant moved to quash the indictment at the May term of the Greene Circuit Court, 1922, upon the sole ground that there was no legal evidence before the grand jury upon which to base the indictment. Appellant relies upon section 2988, Crawford & Moses' Digest, which reads as follows: "The grand jury can receive none but legal evidence." At the hearing on the motion the court permitted the appellant to introduce as a witness the stenographer who took down the testimony of the witnesses before the grand jury that returned the indictment against the appellant, and permitted the stenographer to read the testimony of the witness, Rebecca George, taken before the grand jury in the investigation of the alleged crime of carnal abuse of Rebecca George by appellant.

In her testimony before the grand jury Rebecca George stated that she had been acquainted with the appellant some four or five years. She was asked whether he had ever had any improper relations with her, and refused to answer. She was asked whether or not she had testified in Squire Hayes' court that Tony McDonald had sexual intercourse with her, and she stated that she remembered testifying, but was not going to inform the grand jury whether she was telling the truth then or not. She was then asked whether she remembered saying that she did tell it, and answered, "Yes." She was asked whether the things she told there were the truth and answered, "I am not going to tell you anything." She admitted that her baby was there. The grand jury asked who was the father of her baby, and she refused to tell. She stated that she remembered telling the prosecuting attorney about it, but refused to tell the grand jury anything about it. Further along in her examination she was asked this question: "Do you remember telling us that Tony McDonald was the father of the child?" Answer. "I told you, but you didn't know if I told you the truth." She was further asked, "You told us that Tony McDonald was the father of the child, and that Tony got you to sign a letter saying that he was not the father of the child, but that he was the father of the child?" Answer, "Yes sir." Question, "Was that the truth?" Answer, "I am not going to tell you." She was recalled later before the grand jury, and in answer to questions stated that her baby was not Tony's baby; that it was Hughie Warren's baby, and further stated that Tony had not had at any time sexual intercourse with her, and that her prior statements to the effect that Tony had sexual intercourse with her were false.

The witness next read the testimony of Mrs. Wiley George, the mother of Rebecca George, taken before the grand jury. Mrs. George stated that upon ascertaining that her daughter was enceinte, she asked her daughter who was the father of the child, and Rebecca stated that it was Tony's. She then interviewed appellant in regard to the matter, and he admitted taking Rebecca to places, but denied having intercourse with her. Also Wiley George, father of Rebecca George, testified before the grand jury that the appellant was the father of the child. He stated that Tony denied it, and said that if he had done it he knew a half dozen other men who had been with her beside himself, and further, that he could get by with anything he did in Paragould.

The testimony of Mrs. Hancock, taken before the grand jury, was to the effect that she and Mrs. Bob McDonald talked about the trouble that Tony McDonald and Rebecca George were in, and Mrs. McDonald stated that it was Tony's child; that they had been together in her house. She stated that Rebecca had intercourse with Tony right in her own house--she heard them, and accused Rebecca of it, and Rebecca admitted it, and told witness about it. This witness further stated that after Hughie Warren was killed she heard Mrs. Bob McDonald say that they were going to get Rebecca to swear it on Hughie Warren--they were going to do that to save Tony. There was further testimony heard before the grand jury in the investigation of the charge upon which it returned the indictment, but the above is sufficient to show that the grand jury did have before it some legal evidence. It was competent upon the investigation of such a charge to prove that the appellant and Rebecca George had associated together and had opportunities for sexual intercourse, and that a child was born to Rebecca George. It was also competent to ask Rebecca George if she had not testified before the examining magistrate that the appellant had sexual intercourse with her, and, upon her answering in the affirmative, to further ask her whether or not she was then telling the truth. After refusing to answer whether she had told the truth or not, it was for the grand jury to determine whether she had testified to the truth before the examining magistrate, and it was still within the province of the grand jury to determine whether her testimony before the examining magistrate was the truth, notwithstanding she afterward changed her story.

Therefore, it will be readily seen that the case before us is not one where the grand jury returned an indictment without having any legal evidence whatever upon which to ground its charge. The facts clearly differentiate this case from those cases set out in appellant's brief, and upon which appellant relies, to the effect that where no evidence at all has been heard by the grand jury, or where an indictment has been returned upon wholly incompetent testimony, the indictment may be quashed upon motion before plea. As was said in State v. Logan, 1 Nev. 509: "But the reason of the rule will not authorize the setting aside the indictment, merely because evidence not of the best legal character is received and considered. If there be nothing to support the bill but evidence clearly incompetent, and which would not be admissible at the trial, as the sole testimony of a person rendered incompetent by conviction of an infamous crime, the indictment may be quashed before plea (1 Wharton's American Criminal Law, sec. 493), but where there is the slightest legal evidence, the court cannot inquire into its sufficiency, or set it aside, because some illegal evidence was received with it."

Therefore, appellant was not entitled to have the indictment quashed under the above statute, even if the doctrine of our court were in harmony with the doctrine of the cases upon which appellant relies in his brief. But our own court, in State v. Fox, 122 Ark. 197, 182 S.W. 906, has definitely ruled that a motion to quash an indictment can only be made upon one of the following grounds: (1) A substantial error in the summoning or formation of the grand jury. (2) That some person other than the grand jurors was present before the grand jury when they finally acted upon the indictment. (3) That the indictment was not found and presented as required by law. The above grounds are those contained in sec. 3057, C. & M. Digest.

Construing this statute in State v. Fox, supra, we said: "The grounds above specified exclude any right to make such motion for any other than one of the specified causes. The motion to quash the indictment for want of legal and sufficient evidence adduced before the grand jury to warrant the finding thereof certainly does not come within the first and second subdivisions of said section, and we do not think it can be said to be included within the third subdivision that the indictment was not found and presented as required by law. * * * * It was never the purpose of the law, as clearly indicated by the statute designating the only grounds upon which a motion to quash, or set aside, an indictment can be made, that such motion could be made because of the introduction of illegal testimony or want of any testimony at all to support the return of an indictment, and thus bring the testimony and proceedings before the grand jury for review by the trial court before a plea to the charge by the accused. The grand jury is an inquisitorial body, the proceedings of which are intended to be kept secret, and cannot be examined and reviewed by a trial court upon a motion to set aside or quash an indictment, except for causes specified in the statute."

Section 2988, C. & M. Digest, which provides that "the grand jury can receive none but legal evidence," in view of the holding of this court in State v. Fox, supra, is directory to the grand jury only, and its failure to observe the statute does not give the accused the right to set aside or quash an indictment on account of such failure. Under our Constitution (art. 2, § 8) and statutes (§§ 2977, 3006, C. & M. Digest) the grand jury is an inquisitorial and accusatory body. Such being the case, when it has returned into court an indictment accusing a person of crime, such "an indictment is only an accusation and does not even raise a presumption of guilt, and in itself can do nothing except to serve as an accusation." Any irregularity in the finding and return of it by the grand jury does not deprive the accused of any substantial right. Worthem v. State, 82 Ark. 321, 101 S.W. 757; Latourette v State, 91 Ark. 65, 120 S.W. 411. When the grand jury has...