State v. Frizell

• Decision Date: 20 December 1892
• Parties: STATE . v. FRIZELL.
• Court: North Carolina Supreme Court

16 S.E. 409

111 N.C. 722

STATE .

v.FRIZELL.

Supreme Court of North Carolina.

Dec. 20, 1892.

Criminal Law—Findings by Grand Jury—Exceptions to Charge—Dismissal of Appeal.

1. On a prosecution for an affray the indictment was drawn against defendant and one J., and the names of these two were marked as witnesses, who were sworn and examined, but a true bill was returned only as to defendant, who moved to quash, and in arrest of judgment, on the ground that "the back of the bill showed that defendant was a witness against himself before the grand jury." Held, that these motions were properly refused, as, there being two defendants in the bill, the presumption was that they were examined as witnesses only against each other, and not each one against himself.

2. It need not appear that a witness before the grand jury was sent there by the district solicitor.

3. An exception to a charge as given, without a specific assignment of error, is insufficient.

4. A criminal appeal will be dismissed, or the judgment affirmed, when the record is materially defective, if the attorney general makes a motion to that effect, and no sufficient excuse for the defect is shown.

Appeal from superior court, Jackson county; Bynum, Judge.

T. M. Frizell was convicted of taking part in an affray, and appeals. Affirmed.

The Attorney General, for the State.

Clark, J. The indictment was drawn for an affray against the defendant and one Jones. On the back of the bill the names of four witnesses are marked as sworn and examined. Two of these were the defendant and said Jones. Presumably they were sent to be examined as witnesses against each other, as is not unusual on a trial before the petit jury. The grand jury returned a true bill as to the defendant, but ignored the bill as to Jones. The defendant thereupon moved to quash, because " the back of the bill showed that the defendant was a witness against himself before the grand jury." This motion being denied, a motion on the same ground was renewed in arrest of judgment. There was no error in refusing these motions. There being two defendants in the bill, there was no presumption that the defendant was examined againsthimself. If there was ground for such allegation, it was competent to have summoned the foreman or any member of the grand jury to show the fact, and the bill should, of course, have been quashed if this had been true. There is no presumption either of law or fact that the grand jury were so ignorant as to examine a defendant as a witness against himself, or that the defendant would answer such questions. The grand jurors were doubtless men of fair intelligence, many of whom had often seen trials for affrays before the petit jury, and who were aware that one defendant could be examined against the other, though not against himself. The defendant could have proved it by his own testimony as well as by that of a member of the grand jury, if he had in truth been examined against himself. He did not do this, and it certainly does not appear "by the back of the bill" that be was so examined. The practice of sending defendants in indictments for affrays before the grand jury as witnesses against each other is not to be commended, since the parties have not counsel present to prevent their testifying against themselves. Yet there is nothing which renders incompetent as evidence before that body any evidence which is permissible before the petit jury. We can do no more than recommend caution in its use. The defendant relies upon a dictum in State v. Krider, 78...