State v. Avant
| Decision Date | 04 May 1932 |
| Docket Number | 424. |
| Citation | 163 S.E. 806,202 N.C. 680 |
| Parties | STATE v. AVANT. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Scotland County; T. B. Finley, Judge.
Hezzie Avant was convicted of murder in the first degree, and he appeals.
New trial.
The defendant in this action was tried on an indictment for murder. He was convicted of murder in the first degree.
From judgment that he be punished with death by means of electrocution, as prescribed by statute, the defendant appealed to the Supreme Court.
Jennings G. King, of Laurinburg, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty Gen., for the State.
The defendant's contention, presented by his first assignment of error on his appeal to this court, that the indictment in this action is not valid, cannot be sustained. This assignment of error is based on defendant's exception to the refusal of the trial judge to allow his motion to quash the indictment. The grounds for this motion were (1) that when returned into court by the grand jury, as provided by statute (C. S. § 4611), the bill of indictment was not indorsed by the foreman of the grand jury or otherwise as "a true bill"; and (2) that the names of the witnesses for the state who were sworn and examined before the grand jury were not marked thereon by its foreman, as provided by statute. C. S. § 2336.
The judge found from his investigation, as appears in the record that certain persons, whose names are indorsed on the bill of indictment as witnesses for the state, were sworn and examined before the grand jury, and that the grand jury after hearing and considering the testimony of these persons as evidence for the state, came into court, in a body accompanied by its foreman, and returned the bill as "a true bill." This investigation was made by the judge in open court, and in the presence of the grand jury. The judge thereupon permitted the foreman of the grand jury, in open court, and in the presence of the grand jury, to mark the names of the persons who had been sworn and examined before the grand jury as directed by the statute, and also permitted the foreman of the grand jury to indorse the bill of indictment, by signing his name thereon, showing by said indorsement that the grand jury had found the bill "a true bill." The indictment with the indorsements thereon, when entered on the records of the court, was regular in all respects, and was in full compliance with statutory requirements, and with the practice in the courts of this state. Defendant's motion to quash the indictment was denied, and defendant excepted.
The foreman of the grand jury is authorized by statute in this state to administer oaths and affirmations to persons whose names are indorsed on a bill of indictment as witnesses for the state. He is required to mark on the bill the names of such persons as are sworn by him, and examined before the grand jury. C. S. § 2336. In State v. Hollingsworth, 100 N.C. 535, 6 S.E. 417, 418, it is said: There is no statute in this state requiring that a bill of indictment, which has been duly considered and returned into court by a grand jury, shall be indorsed by the foreman or otherwise as "a true bill," or as "not a true bill." It is provided by statute (C. S. § 4611) that grand juries shall return all bills of indictment in open court through their acting foreman, except in capital felonies, when it shall be necessary for the entire grand jury, or a majority of them, to return their bills of indictment in open court in a body. No indorsement by the foreman or otherwise is essential to the validity of an indictment which has been duly returned into court by the grand jury, and entered upon its records. The validity of the indictment is determined by the records of the court, and not by the indorsements, or the absence of indorsements on the bill. State v. Shemwell, 180 N.C. 718, 104 S.E. 885; State v. Long, 143 N.C. 670, 57 S.E. 349; State v. Sultan, 142 N.C. 569, 54 S.E. 841, 9 Ann. Cas. 310. It should be noted that State v. McBroom, 127 N.C. 528, 37 S.E. 193, in which it was held by a divided court that the indorsement "a true bill" is essential to the validity of an indictment, was expressly overruled in State v. Sultan, supra.
When a bill of indictment has been duly returned into open court by the foreman of the grand jury, or in capital felonies, by the entire grand jury, or a majority of them, and by an inadvertence the foreman of the grand jury has failed to mark the names of persons indorsed thereon as witnesses for the state, who have been sworn and examined before the grand jury, as directed by the statute, or has failed to indorse thereon the action of the grand jury with respect to whether the bill was found by the grand jury "a true bill," or "not a true bill," the judge may, in the exercise of his discretion, permit the foreman to mark the names of the witnesses who have been sworn and examined before the grand jury, or to indorse the bill as directed by the grand jury, provided...
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