State v. Beebe

• Decision Date: 01 January 1872
• Citation: 17 Minn. 218
• Parties: STATE OF MINNESOTA v. EZRA BEEBE.
• Court: Minnesota Supreme Court

17 Minn. 218

STATE OF MINNESOTA

v. EZRA BEEBE.

Supreme Court of Minnesota.

Appeal from a judgment of the district court, Waseca county.

Lewis Brownell, for appellant.

F. R. E. Cornell, Atty. Gen., for respondent.

RIPLEY, C. J.

The defendant was indicted with others for larceny in the district court for Waseca county. Upon being arraigned, he moved to set the indictment aside because it was not found, indorsed, or presented as prescribed by the law relating to grand juries, in this: That there was no legal evidence before the grand jury upon which the indictment was found; that there was illegal evidence used by the grand jury; that the names of certain witnesses were indorsed on the indictment who were not sworn or examined by or before said grand jury during the examination or consideration of said charges as set forth in said indictment.

In support of said motion the defendant offered the affidavit of Neri Reed, one of said grand jurors, but the court refused to receive it, on the ground that public policy did not allow a grand juror's affidavit to be used on such motion.

In this the court was right. The law (Gen. St. c. 107, § 33) provides that the grand jury can receive none but legal evidence; and chapter 108, § 59, that where an indictment is found, the names of the witnesses examined shall be inserted at the foot, or indorsed on the back thereof, before it is presented to the court.

The affidavit went directly to impeach the conduct of the grand jury in finding an indictment on illegal evidence, and making such false indorsement, and was most clearly within the rule that the affidavit of a grand juror will not be received to impeach or affect the finding of his fellows. Whart. Am. Crim. Law, 130; R. v. Marsh, 6 Adol. & E. 236; Bish. Crim. Proc. § 729, note 4.

The defendant read in support of said motion the affidavits of two of the witnesses, whose names were thus indorsed, that they were sworn and examined before said grand jury in the case of the State v. John T. Howard, and that they were not sworn or examined as witnesses in this case, or any other, except that of Howard; and that they were not before the grand jury on the first of November, 1870; also, from the minutes of the grand jury on file in said court, that an indictment against defendant was found on said first of November. It also appeared from the record that on the fourth day of said term, October 20th, the grand jury came into court and presented an indictment against said John T. Howard. This indictment is for the same transaction as that in respect to which the defendant was indicted, viz., the breaking open the safe of the Waseca Bank and stealing its contents.

On these affidavits, then, it would appear that these witnesses had been examined, and testified as to their knowledge respecting the subject-matter of this indictment, and that thereon an indictment against said Howard was found on the twentieth of October. If it should appear to the grand jury, upon further consideration of such testimony, that the defendant ought also to be indicted, it would certainly be their duty to indict him, and it is not perceived why, in that event, it would not be their duty to indorse the names of such witnesses on the indictment.

It would seem, indeed, that it would be but an evasion of the statute not to do so, for the reason that they were not examined while the grand jury had the defendant's case specially and particularly before them.

Under the circumstances, the defendant would not lay the foundation for charging the grand jury with a false indorsement till he should show that the witnesses were not examined as to the transaction in respect to which the defendant was accused of having been particeps criminis.

Upon said motion it further appeared that, except the said indictment, indorsed, "A true bill. Jo. CHANDLER, Foreman Grand Jury. Filed November 1, 1870. S. J. WELLS, Clerk," and the said minutes of said grand jury, there was no record respecting the same.

The objection is, that whereas Gen. St. c. 108, § 60, provides that when an indictment is found it shall be immediately presented by the foreman, in the presence of the grand jury, to the court, filed with the clerk, and remain in his office as a public record, it must appear of record that it was so presented.

As it appears that an indictment against defendant was found November 1st, and this indictment appears to have been filed on that day, unless the ordinary presumption in favor of the proceedings of courts is inapplicable here, it would be presumed that it was duly presented; and we see no reason why this is an exception to the ordinary rule.

At common law, indeed, there would be no room for such presumption. The record must show that the indictment was found. It cannot be intended that the defendant was indicted. It must appear by the record of the finding.

The reason, we think, is that at common law the grand jury, having found one or more bills, come into court and hand them to the clerk, who thereupon publicly calls the same over to them, viz., "Against A. B. (for felony or misdemeanor) you find a true bill; against C. D.," etc.; asking them, at the same time, if they agree that the court may amend matter of form, to which they signify their assent.

This was necessary in order to enable the court to correct any clerical mistake, because it has no authority to change the form of the accusation without the consent of the accuser. The clerk thereupon records the finding. 1 Archb. Crim. Pr. & Pl. p. 99, note 1.

Our statutes, however, have obviated the necessity of the form above mentioned by providing that no indictment is insufficient by reason of a defect in matter of form, (Gen. St. c. 108, § 11;) and the facts that it is indorsed, "a true bill," signed by the foreman, and properly filed, are evidence that it has been found by the grand jury. State v. McCartey, ante, 54; Gen. St. c. 107, § 57.

The statute also makes it a misdemeanor for any judge, grand juror, clerk, county attorney, sheriff, or other officer to disclose the fact that an indictment has been found. Chapter 107, § 49. As a consequence, and in furtherance of this policy of our law, by the practice in our district courts, the clerk receives the indictment from the grand jury and files it in silence, allowing no one to inspect it but the judge and county attorney; nor, so far as we are advised of the practice, is it his custom, if the defendant has not been arrested, to make any note respecting it in the minutes. At any rate, such an entry in a public record in constant use during term might render secrecy practically impossible, and the policy of the law would seem to authorize its omission, though the record of the case, when finally made up, should show, of course, that the indictment was duly presented, etc.

When, therefore, the record of the proceedings of the term at which the indictment was found does not show that it was presented in court, as provided by law, we think it should be presumed that the law in that respect was complied with, if, as in this case, the indictment appears to have been found and properly filed. The motion to set the indictment aside was properly denied.

At the trial the prosecution stated and admitted that they did not charge or claim that the defendant committed the offense charged by being present when the property was actually stolen, and of actually stealing it in person, but only claimed that he was guilty of the said offense as accessory before the fact.

The defendant thereupon objected to the proof of facts going to prove the defendant an accessory before the fact, because not so alleged in the indictment.

As already stated, the indictment charges him with larceny in common form. By Gen. St. c. 91, § 3, an accessory before the fact shall be punished in the same manner as is prescribed for the principal, and by section 10, the distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall be indicted, tried, and punished as principals.

In treason and misdemeanors there is no distinction between principals and accessories; all concerned in the commission of the offense are deemed principals, and indicted and punished accordingly. When, therefore, the statute abrogates, as to felony also, the distinction between principals and accessories before the fact, the latter must be deemed principals.

Again, an accessory before the fact is certainly "concerned in the commission of the offense," and is one "who aids and abets in its commission, though not present;" for its proper definition is, "one who, though absent at the time of the commission of the felony, doth yet procure, counsel, command,...