State v. Baker

• Citation: 20 Mo. 338
• Parties: THE STATE, Appellant, v. BAKER, Respondent.
• Decision Date: 31 January 1855
• Court: United States State Supreme Court of Missouri

20 Mo. 338

THE STATE, Appellant,

v.BAKER, Respondent.

Supreme Court of Missouri.

January Term, 1855.

1. Upon a motion to quash an indictment returned into court endorsed ““a true bill,” members of the grand jury cannot, under onr statute, be permitted to testify how they or their fellowmembers did or did not vote, for the purpose of showing that twelve did not concur in finding the indictment; nor would they, it seems, be permitted to state the fact that twelve did not concur.

Appeal from St. Clair Circuit Court.

The case is fully stated in the opinion of Judge Ryland.

Gardenhire, (attorney general) for the State.

The action of the court below was in direct violation of the statute, which expressly provides that no member of a grand jury shall be obliged or allowed to testify or declare in what manner he or any other member of the grand jury voted on any question before them. It is in vain to say, as was said in Low's case, (4 Greenl. 440.) that the fact whether twelve or more concurred in the bill is not a secret. If one or more grand jurors can be called to contradict the certificate of the foreman, the policy of the statute is gone. How can they be contra dicted if they swear falsely, without giving the names of the members who voted for or against the bill? Shall one member of a grand jury swear that twelve did not concur, and turn a prisoner loose, without further question? The law as plainly requires twelve jurors to convict, as to find an indictment. If the certificate of the foreman of the grand jury can be impeached by the oaths of his fellows, why may not the final verdict be impeached in the same way? There is a much better reason for it. The indictment is preliminary, the verdict is final. Yet it is well settled that traverse jurors cannot impeach their verdict. (1 Mass. 543; 4 Mass. 399; 4 Johns. 487.)

F. P. Wright, and W. H. Otter, for respondent.

Under the constitution, defendant could not be convicted of the offence charged otherwise than by indictment, which is an accusation presented on oath by a grand jury, twelve at least concurring. (2 Hale's P. C. 161; 2 N. C. 188; 2 Black. 718; 3 Bacon's Ab. Indictment, State Cons. art. 13, § 8, 14; R. C. 1845. p. 866, § 19; 2 Gallison, 366.) The law says that no citizen can be deprived of life, unless by a concurrence of twenty-four of his peers; but if he is deprived of the means of asserting this boasted right, it is a mere mockery. The law excludes all persons from the grand jury room, except the grand jurors themselves, when they vote upon a bill, and consequently they alone can be witnesses.

The fact whether twelve or more concurred is not a secret. It is a result always made public by the endorsement “a true bill” or “not a true bill” upon the indictment. The grand jurors in this case do not declare how any member voted. They barely state that they did not vote or concur. (Low's case, 4 Greenleaf's 440; 9 Mass. 107.)

The endorsement “a true bill” upon an indictment only raises a presumption that twelve of the grand jurors concurred, but this presumption may be rebutted by contrary proof. (1 Greenl. Ev. § 252.)

RYLAND, Judge delivered the opinion of the court.

At the September term, eighteen hundred and fifty-two, of the Circuit Court for Hickory county, John Mullins and Andrew Baker were indicted for the murder of John P. Dorriss.

Mullins was not taken. Baker appeared to the indictment, and had the trial continued on his motion until the next term. At the next term, being March term, 1853, Baker applied for and obtained a change of venue--the court directing the case to be sent for trial to the St. Clair Circuit Court, in St. Clair county. At the May term, 1853, of the St. Clair Circuit Court, the case was again continued on defendant's motion, until the next term. At the October term the case was continued on the motion of the circuit attorney.

At the May term, 1854, the parties appear, and the defendant filed the following motion: “The said defendant, Andrew Baker, comes into court and alleges he ought not to be holden to answer to this indictment, because he says that the said indictment was not found by any twelve of the grand jury, but simply by a majority of the number who constituted the grand jury panel at the court at which said bill purports to be found, and he now moves the court for liberty to prove these facts by Jonas Brown, Samuel Weaver, Jesse Driskill, Hardy C. White, Oliver Poe, members of the grand jury, and who were grand jurors on the panel aforesaid, and their affidavits are here in court.” After the filing of this motion, the cause was continued. At the October term, 1854, of St. Clair Circuit Court, the parties again appear, and upon hearing the evidence on said motion to quash the indictment which evidence will be noticed hereafter, the court sustained the motion, and quashed the indictment, and dismissed the proceedings against Baker. The circuit attorney excepted to the various opinions and acts of the court in receiving the affidavits of the grand jurors, and in sustaining the motion to quash the indictment; filed his bill of exceptions, and brings the case here by appeal.

These affidavits are as follows: “Jessie Driskill, sworn for defendants says he was on a grand jury in Hickory county, when the matter against defendant was investigated; was present when the vote was taken; witness said he did not vote at all.” Cross-examined: “A vote was taken on the Baker case; I had a knowledge that a bill would be presented, and had been, as I supposed, by the foreman to the court, as I understood; I requested a count, and the reason was, I did not know that twelve had concurred in finding the bill; I had doubts that twelve had concurred; I did not hear any count made; if it was done publicly, I did not hear it; I think none was made; I think Poe, and I think Hardy White, at the time, also made request for a count; the vote was taken by uplifting hands, or making a sign that the jury understood; but one vote was taken, and those that did not vote had no chance to vote at all.” Re-examined: “Esquire Walker did the writing and Miles put the vote.”

Hardy C. White, sworn for defendant, says: “I was one of the grand jury when the Baker case was investigated in court; (it is admitted that White was on the grand jury;) I was present when the vote was taken on the bill; I had my doubts whether twelve concurred in finding the bill; I did not vote; there was a request to count the vote again; I can't say whether it was Judge Brown or Judge Driskill who requested; if another vote was taken, I do not recollect it; there was a good deal of talk in the room; there was a request to have another vote on it; do not recollect the day on which the vote was taken; I think the vote was taken on the day it was returned into court; Weaver had left before the vote was taken; he was not there; his family was sick, or some one dying.” Cross-examined: “As well as I recollect, when the vote was taken, they arose to their feet, and sometimes by raising their hands; I did not count all that did or did not vote; the foreman generally counted; Esquire Walker that day was doing the writing; I can't say he counted or not in voting on bills when twelve raised to their feet, for the bill; there was no further counting of those who did not rise.” Reexamined: “I know of no other juror having been summoned in the place of Weaver.”

Weaver's deposition read: “Was not present when the vote was taken on Baker's bill of indictment;” the circuit attorney waived any objections to Weaver's deposition being read.

Elgin Poe, sworn, says: “Was one of the grand jury; I did not vote on the bill of indictment; I claimed another count of the vote, and named it; the reason was I did not think twelve concurred in finding it; I thought so from what I saw and heard; I know some did not vote; no second vote was taken; I cannot say how the vote was taken; whether by rising up, or lifting up their hands; the vote on this bill was taken but once; I saw some that did not vote.” Cross-examined: “I was busy looking at the law when the vote was taken; I do not know how the vote was taken; I do not recollect about that; it was one of these ways; I do not recollect whether it was the day after or at the time the request was made to have another vote taken; I think we adjourned immediately after the vote was taken; my memory is dim upon this subject; was present when the bill was presented to the court; made no objection to the bill being handed to the court; I knew that it required twelve to concur to find the bill; I would have objected, if I had known I had the right to do it; I did not know what my duty was in that case.” White recalled: “I knew it took twelve to find a bill and named it to Judge Johnson, who was then judge.” Cross-examined: “This was before the bill was delivered into court and before the grand jury were discharged; I asked Judge Johnson whether it took twelve or not; he said it did; I did not count those who voted for or against the bill; I did not see all who did or did not vote; I thought, from the talking in the jury room, that twelve did not concur; I did not know how to fix it; it was in the charge of the court that the circuit attorney was the legal adviser of the jury.”

James Brown, sworn, says: “I was a member of the grand jury in Hickory; was present when the vote was taken on the Baker indictment; I do not know whether twelve concurred in the bill or not; it was done suddenly; that is, so that any one could not count it; it was, all that were in favor of findng the bill to hold up their right hand; the vote was taken by the foreman suddenly so no one could count; I recollect it well; I requested, by the application of several others, to take another vote; it was in a few minutes after the vote was taken; Mr. White first named it to me; Driskill also wished it taken over again; I did not vote on the bill; no second vote was taken on the bill; it was the first...