State v. Burgess

• Decision Date: 31 January 1857
• Citation: 24 Mo. 381
• Parties: THE STATE, Appellant, v. BURGESS, Respondent.
• Court: Missouri Supreme Court

24 Mo. 381

THE STATE, Appellant,

v.BURGESS, Respondent.

Supreme Court of Missouri.

January Term, 1857.

1. Although the failure of the foreman of a grand jury to certify under his hand an indictment to be a true bill, is no cause for arrest of judgment after a trial and conviction, it is ground for quashing the indictment before trial.

Appeal from Grundy Circuit Court.

Ewing (attorney-general), for the State.

I. The signature of the foreman of a grand jury is not an essential part of an indictment. The statute requiring it is merely directory. (State v. Mertens, 14 Mo. 94; State v. Clark, 18 Mo. 432.) The record shows the indictment was ““returned into” court by the grand jury “a true bill.” Indictments found by a grand jury are presented by their foreman, in their presence, to the court, and are there filed, and remain as records of such court. (R. C. 1845, p. 866, § 21.) This goes to the validity of the indictment--the signature of the foreman to its authenticity only. (Steele v. State, 1 Texas, 142; Burgess v. Commonwealth, 2 Va. Cases, 483; id. 427; Commonwealth v. Walters, 6 Dana, 290.)

J. C. Griffin, for respondent.

I. The words, “a true bill,” upon the back of the indictment are not in the handwriting of the foreman of the grand jury.

II. The name of the foreman of the grand jury is not signed by him to the words, “a true bill,” upon the back of the indictment. (See R. C. 1845, Tit. Practice and Proceedings in Criminal Cases, Art. §19.)

LEONARD, Judge, delivered the opinion of the court.

According to the English practice, indictments are drawn up and preferred to the grand jury by any private prosecutor, in the name of the king. The jury then hear the evidence, and if they think the accusation groundless, they indorse upon the bill “not a true bill;” but if they are satisfied of its truth, they indorse it “a true bill.” It is then delivered publicly in court by the grand jury, received by the court, and placed among its files, and the indictment is then said to be found, and the party stands accused. (4 Blac. Com. 306; 1 Chit. Crim. L. 324.) The American practice is similar, except that here the grand jury generally hear the evidence first, and if they agree to find a bill, the indictment is then drawn up in form by the proper law officers of the government, and sent to them for their indorsement and delivery into court. (Webster's case, 5 Greenl. Maine, 432.) In North Carolina (State v. Cox, 6 Ired. 446, and State v. Collins, 1 Dev. & Batt. 374), it has been expressly holden that the indorsement was no part of the indictment, but that it was the action of the grand jury in returning the bill into court, and the receiving of it there, that rendered it a legal accusation against the defendant; and the same opinion seems to prevail in South Carolina. (State v. Creighton & Bell, 1 Nott & McCord, 257.) And although in 1 Chit. Crim. L. 324, it is said that the indorsement, “a true bill,” becomes part of the indictment, and renders it a complete accusation, yet Ford's case (Zelv. 99), which is referred to as authority, does not seem to warrant the assertion. Indeed, the position is contradicted by the form of the record, which, when formally drawn up, omits all mention of the indorsement, and states in the caption merely that the grand jury present that the accused did, etc., reciting the allegations of the indictment; and this is the principle upon which the want of a proper indorsement is disallowed in arrest of judgment after a conviction. (Burgess...