State v. Agnew
| Decision Date | 30 November 1889 |
| Citation | 12 S.W. 563,52 Ark. 275 |
| Parties | STATE v. AGNEW |
| Court | Arkansas Supreme Court |
APPEAL from Logan Circuit Court, H. F. THOMASON, Judge.
Agnew was indicted and on trial for the sale of intoxicating liquors without a license. After the evidence for the State had been closed, and while a witness for the defense was being examined, the court discovered that the indorsement, "A true bill," on the back of the indictment had not been signed by the foreman of the grand jury. The court thereupon, on its own motion, discharged the jury and dismissed the cause on the ground that there was no indictment upon which the defendant could be convicted. The State excepted and appealed.
Section 2102 Mansfield's Digest provides that where an indictment is found "it must be indorsed 'a true bill,' and the indorsement signed by the foreman."
Reverse and remanded.
W. E. Atkinson, Attorney General, for appellant.
1. While in England the indorsement "Billa Vera," signed by the foreman of the grand jury, is absolutely essential, with us the matter is a form; the statute is directory merely, and any objection to it may be waived. 14 Mo. 94; Morris (Iowa), 332; 1 Nott & McCord, 256; 6 Iredell 440. If the record shows the finding or return into court of the indictment, it will render the indorsement unnecessary, as this sufficiently authenticates the indictment. 6 Ire., 440; 24 Tex. 135; 33 ib., 444; 23 ib., 599; 21 Cal. 372-3.
Even where the indorsement and signature are held requisite, the objection must be taken in the preliminary stage of the proceedings. 47Mo. 274; 10 Minn. 223, and cases supra.
See, also, 28 Ark. 411; 33 id., 174. Defendant should have been held to answer a new indictment any way. Mansf. Dig., 2158.
The provision that the foreman of the grand jury shall sign the indorsement, "A true bill," upon indictments, is directory, and the objection to the irregularity is waived, unless made before pleading. People v. Lawrence, 21 Cal. 368; State v. Mertens, 14 Mo. 94; State v. Creighton, 10 S.C. L. 256, 1 Nott & McC. 256; Wau-kon-chaw-neek-kaw v. U.S., 1 Morris 332 (Iowa); State v. Cox, 6 Ired. Law 440; State v. Powell, 24 Tex. 135; State v. Murphy, 47 Mo. 274; State v. Shippey, 10 Minn. 223; State v. Brandon, 28 Ark. 410; State v. Johnson, 33 Ark. 174.
Reverse and remand, with directions to put defendant upon his trial.
To continue reading
Request your trial
-
State v. Heft
...Iowa, 554. And it has been so held in other jurisdictions. Frisbie v. U. S., 157 U. S. 160, 15 Sup. Ct. 586, 39 L. Ed. 657;State v. Agnew, 52 Ark. 275, 12 S. W. 563;State v. Brannan, 206 Mo. 636, 105 S. W. 602. Many other authorities might be cited in support of this proposition, but in the......
-
State v. Heft
... ... that such defect is waived if not taken advantage of before ... trial. Waukon-chaw-neek-kaw v. U. S., Morris 332; ... Hughes v. State, 4 Iowa 554. And it has been so held ... in other jurisdictions. Frisbie v. U. S., 157 U.S ... 160 (15 S.Ct. 586, 39 L.Ed. 657); State v. Agnew, 52 ... Ark. 275 (12 S.W. 563); State v. Brannan, 206 Mo ... 636 (105 S.W. 602). Many other authorities might be cited in ... support of this proposition, but in the cases which we have ... cited there are ample references to other cases in which the ... same conclusion has been reached ... ...
-
Beard v. State
...The requirement that the foreman sign the indictment is directory only, and must be objected to before pleading; otherwise it is waived. 52 Ark. 275; 73 Ark. MCCULLOCH, J. HILL, C. J. Mr. Justice BATTLE concurs. OPINION MCCULLOCH, J., (after stating the facts.) 1. The jurisdiction of the co......
-
State v. Mcbroom
...which make the omission of those words fatal. Even there the statutory requirement has often been held merely directory. State v. Agnew, 52 Ark. 275, 12 S. W. 563; State v. Mertens, 14 Mo. 94; State v. Murphy, 47 Mo. 274. But the above numerous and uniform decisions declare that at common l......