State v. Grady

Decision Date31 October 1884
Citation84 Mo. 220
PartiesTHE STATE, Appellant, v. GRADY.
CourtMissouri Supreme Court

Appeal from St. Louis Court of Appeals.

AFFIRMED.

D. H. McIntyre, Attorney General, for the state.

Grand juries are at liberty to find bills upon their own knowledge merely, and were anciently in the habit of so doing. Reg. v. Russell, Car. and M. 247; Whar. Cr. Pl. and Pr., sec. 338 (8 Ed.); State v. Terry, 30 Mo. 368. In this state it is made the duty of a grand juror to disclose his knowledge of indictable offences and be sworn as a witness. Sec. 1779, R. S., 1879. Since grand juries may find bills on their own knowledge, and might do so in any given case, no inquiry can be made as to the evidence upon which they based their finding, for a grand juror cannot be heard to impeach his own presentment. State v. Baker, 20 Mo. 339; Com. v. Skeggs, 3 Bush 19; State v. Beebe, 17 Minn. 241; State v. Hamilton, 13 Nev. 386; State v. Gibbs, 39 Iowa 318; State v. Davis, 41 Iowa 311. No other means of discovering whether an indictment was presented upon the knowledge of the grand jury would be practicable. Oral testimony should never be received to impeach the record of the proceedings of a grand jury. The grand jury are sworn to act upon evidence (sec. 1774, R. S.), and to allow the record of their action to be contradicted orally, would be, at best, but the placing of oath against oath, and would be the means of introducing confusion into courts and tend to the ultimate destruction of this ancient method of inquiring into crimes. State v. Dayton, 3 Zabr. (N. J.) 49; Hall v. State, 4 Greene (Iowa) 73; State v. Allen, 1 Ala. 442.

Cornelius McBride and P. N. Jones for respondent.

A grand jury cannot find an indictment without having any evidence before them as to the guilt of the accused, and upon proof of such fact by competent evidence, a motion to quash should be sustained. Bishop's Cr. Pl., secs. 865, 866, and 867; Wharton's Pleading and Practice; sec. 362; 2 Am. Crim. Law Reports, p. 470; State v. Sparranberger, 53 Ala. 481; Southern Law Review for April and May, 1881, p. 161, and Ibid. for August and September, 1881, p. 477.

NORTON, J.

The defendant was indicted for robbery in the first degree in St. Louis criminal court. Upon the trial of the cause he was convicted of grand larceny and sentenced to five years in the penitentiary, from which judgment he appealed to the St. Louis court of appeals, which reversed the judgment and remanded the cause and the case is before us on the appeal of the state. In the trial court defendant filed a motion to quash the indictment, and a plea in abatement setting forth the fact that the grand jury had found the indictment without having any testimony before them touching the guilt or innocence of the accused. Defendant offered to prove the truth of said allegation, which the court refused to allow him to do. The St. Louis court of appeals, on defendant's appeal, held this ruling of the trial court to be erroneous, and for that reason reversed the judgment, and it is this ruling of the court of appeals from which the state appeals.

It is provided by section 12, article 2, of the constitution that no person shall be proceeded against criminally for felony otherwise than by indictment, which means that no person shall be subjected to the contumely and disgrace of a public final trial on a charge of felony except when the offence charged has been investigated and enquired into by a grand jury of the county where it is committed, and except when, as the result of such investigation, the grand jury has preferred the charge by indictment into court. While it is said that “to grand jurors is committed the preservation of the peace of the county, the care of bringing to light for examination, trial, and punishment all violence, outrage, indecency, and terror--everything that may endanger and bring disturbance or dismay to the citizen,” and while it is said they are watchmen, stationed by the law to survey the conduct of their fellow-citizens and inquire when and by whom public authority has been violated, or the constitution and law infringed,” they are nevertheless held, in the performance of these responsible duties, to the observance of all requirements by law imposed as pre-requisites to make a valid indictment, and by the non-observance of which they would become the oppressor instead of the protector of the citizen. Under all the authorities one of these pre-requisites, we think, is that before the accusation assumed the form of an indictment, evidence should be heard on which to base it, and that on indictment found and returned into court without the offence which it sets forth having been inquired into, and without any evidence having been heard in support of the accusation, will, when these facts are made clearly manifest to the court, be quashed, on motion made for that purpose, by the accused.

Our statutes relating to grand juries are framed on this theory, and explicitly forbid them from finding an indictment on their own knowledge without first being sworn as witnesses, when it declares that “if a grand juror knows of the commission of an indictable offence or any material fact touching the same, he must declare such fact to his fellows, and must be sworn as a witness upon the investigation before them.” That it was never contemplated that a grand jury should be empowered to...

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46 cases
  • State v. Barrington
    • United States
    • United States State Supreme Court of Missouri
    • 1 Junio 1906
    ......Indeed, section 4097, Rev. St. 1899 (section 2517, Rev. St. 1899), expressly reserves to the state the right to call witnesses other than those whose names are indorsed on the indictment" —citing State v. Roy, 83 Mo. 268; State v. Grady, 84 Mo. 220; State v. O'Day, 89 Mo. 559, 1 S. W. 759. .         From these cases the correct rule as to the application of this statute may thus be stated: First, if there are no witnesses indorsed upon the indictment then upon motion, it should be quashed, unless the prosecuting attorney ......
  • Taylor v. State
    • United States
    • United States State Supreme Court of Florida
    • 12 Abril 1905
    ...... of the express prohibitions of section 2813, Rev. St., and. were all of them, I think, proper matters of inquiry upon. said plea in abatement, and were competent to be testified. about by the state attorney and by members of the grand jury. State v. Benner, 64 Me. 267; State v. Grady, 84 Mo. 220; State v. Horton, 63 N.C. 595; State v. Will, 97 Iowa, 58, 65 N.W. 1010;. Commonwealth v. Green, 126 Pa. [49 Fla. 121] 531, 17. A. 878, 12 Am. St. Rep. 894; Commonwealth v. Hill, . 11 Cush. 137; People v. Briggs, 60 How. Prac. (N. Y.) 17;. [38 So. 397] . Gordon v. ......
  • State v. Shawley
    • United States
    • United States State Supreme Court of Missouri
    • 20 Diciembre 1933
    ......312; State v. Hart, 66 Mo. 208; State v. Griffin, 87 Mo. 608; State v. Williams, 136 Mo. 307; State v. Clifton, 73 Mo. 430; State v. Cunningham, 130 Mo. 507; State v. Sartino, 216 Mo. 408; State v. Miller, 191 Mo. 587; State v. Taylor, 171 Mo. 465; State v. Faulkner, 185 Mo. 673; State v. Grady, 84 Mo. 220. (3) The court did not err in permitting witness Collins to testify, though his name was not indorsed upon the indictment. Sec. 3544, R.S. 1929; State v. Nettles, 153 Mo. 464; State v. Sheeler, 300 S.W. 318; State v. Wilson, 12 S.W. (2d) 445. (4) The court did not err in admitting in ......
  • State v. Shawley
    • United States
    • United States State Supreme Court of Missouri
    • 20 Diciembre 1933
    ......208; State v. Griffin, 87 Mo. 608; State v. Williams, 136 Mo. 307; State v. Clifton, 73 Mo. 430; State v. Cunningham, 130 Mo. 507; State v. Sartino, 216. Mo. 408; State v. Miller, 191 Mo. 587; State v. Taylor, 171 Mo. 465; State v. Faulkner, 185 Mo. 673; State v. Grady, 84 Mo. 220. (3) The court did. not err in permitting witness Collins to testify, though his. name was not indorsed upon the indictment. Sec. 3544, R. S. 1929; State v. Nettles, 153 Mo. 464; State v. Sheeler, 300 S.W. 318; State v. Wilson, 12. S.W.2d 445. (4) The court did not err in ......
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