State v. Cain
| Decision Date | 30 June 1821 |
| Citation | 8 N.C. 352 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. CAIN and PRICE. |
When a bill is found by the same grand jury that made the presentment upon the testimony of some of their own body, not sworn in court as witnesses, such proceeding is in opposition to the act of 1797, c. 2. s. 3, and the bill must be quashed.
THIS was an indictment under the act of Assembly against fornication and adultery, from MARTIN, and was founded upon a presentment of the grand jury. The bill was found by the same jury that made the presentment upon the testimony of some of their own body, none of whom were sworn in court as witnesses. These facts were admitted by the prosecuting officer, and the court, on motion, quashed the bill. The prosecutingofficer appealed to this Court.
The case was argued by the Attorney-General for the State.
The act of 1797, ch. 2, sec. 3, declares "that no person shall be arrested or charged before any court on a presentment made by a grand jury, before the attorney acting for the State shall prepare a bill and the bill be found by the grand jury to be a true bill." It is the province of the grand jury to make presentments from the knowledge of any one of their own body or from the testimony of any witness who may give evidence before them, having been sworn in court and sent to them by the court, if they think fit so to do; and I think the proper construction of the act is, that, on every presentment that is made, a bill of indictment shall be framed, and the witnesses in support of the bill shall be sworn in court and sent to the grand jury, that they shall be examined de novo, and the grand jury shall find the bill a true bill, or not, as they shall judge right from that examination, without regard to any information they might have been possessed of when they made the presentment. I think this is the true construction of the act. If so, the bill in question, it is admitted by the attorney for the State, was not so found, and for that reason ought to he set aside as a nullity and judgment entered for the defendants.
Cited: S. v. Roberts, 19 N. C., 542; S. v. Barnes, 52 N. C., 21; S. v. Horton, 63 N. C., 596; S. v. Allen, 83 N. C., 681; S. v. Hines, 84 N. C., 811; Scroggs v. Stevenson, 100 N. C., 540, 541. 542; S. v. Harrison, 104 N. C., 732; S. v. McBroom, 127 N. C., 536; S. v. Sultan, 142 N. C., 573.
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...than an instruction by the grand jury to the public prosecuting attorney for framing a bill of indictment for submission to them. State v. Cain, 8 N.C. 352; 42 C.J.S., indictments and Informations, § The reasons which motivated the General Assembly to abolish the practice of trying criminal......
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...Fed.Cas. 662, 663, No. 14,858; People v. Restenblatt, 1 Abb.Prac. (N.Y.) 268, 271, 272; Royce v. Territory, 5 Okl. 61, 47 P. 1083; State v. Cain, 8 N.C. 352; State v. Fellows, 3 N.C. 340; People v. (O. & T.) 14 N.Y.Supp. 642; People v. Brickner (O. & T.) 15 N.Y.Supp. 528, 529; People v. Bri......
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...of witnesses not sworn in court, the accused is not without remedy. Upon the establishment of the fact the bill may be quashed. State v. Cain, 8 N. C. 352. * * * But none of these indorsements are parts of the bill, or are proper to be engrossed in making up the record of the superior court......
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State v. Sultan
...N. C. 540; Ruffin, C. J., In State v. Calhoon, 18 N. C. 374. All four of these cases were indictments for murder. To same effect: State v. Cain, 8 N. C. 352; State v. Cox, 28 N. C. 440; State v. Mace, 86 N. C 668, and many others. The English practice did not require the foreman to sign his......