State v. Griffice

• Decision Date: 31 January 1876
• Citation: 74 N.C. 316
• Court: North Carolina Supreme Court
• Parties: STATE v. AKUM GRIFFICE.

74 N.C. 316

STATE

v.AKUM GRIFFICE.

Supreme Court of North Carolina.

January Term, 1876.

Matters which go to the incompetency of a grand jury, may be excepted to after bill found, if it is done at the earliest opportunity afterwards, which clearly is, upon the arraignment, when the defendant is first called upon to answer.

Where it appears that nine of the grand jury, who found the bill, had paid no taxes for the previous year, as required by chap. 17, sec. 229, Bat. Rev., and that another was under twenty one years of age, if it is objected to in apt time, the bill will be quashed.

When an indictment is quashed, it is competent and proper for the court to require the defendant to give bail to answer the charge. Those against whom there is a well grounded suspicion of crime, should not be allowed to escape without an investigation.

( State v. Haywood, 73 N?? C. Rep. 437; State v. McIntyre, 2 Car. L. Repos. 28; and State v. Seaborn, 4 Dev. 305, cited and approved.)

CRIMINAL ACTION, charging an assault, with intent to commit rape, tried before his Honor, Judge Eure, at the Fall Term, 1875, of PASQUOTANK Superior Court.

All the facts pertinent to the points raised and decided in this court, are fully set out in the opinion of Justice BYNUM.

For certain reasons assigned, the defendant moved to quash the indictment. The court allowed the motion, and the Solicitor for the State appealed.

The counsel for the defendant then moved, that the defendant be discharged from custody. His Honor refused to allow this motion, whereupon the defendant appealed.

Attorney General Hargrove and Smith, for the State .

Bledsoe, for defendant .

BYNUM, J.

When the prisoner was being arraigned, and it was demanded of him whether he was guilty or not guilty of the crime charged, his counsel objected that he ought not to be called upon to answer, for that the indictment was not found by a legally constituted grand jury. The case states that “this objection was waived for the moment, and the prisoner was arraigned and plead not guilty.” A motion was then made by the prisoner's counsel to quash the indictment for the reason before alleged, and the following facts were found, and do not appear to have been disputed, to-wit: That the first Monday in September, 1874, was the last time the jury list was revised, and that then many names were put into the box which were not upon the tax list; that the names of others who had not paid taxes for the year preceding the first Monday in September, 1874, were put in the box; and that the names of others were put in, who were not twenty-one, and of others who did not reside in the county. It was also shown that when the jury list was last revised on said first Monday of September, 1874, the Commissioners exercised no discretion in the application of any moral or intellectual test of fitness, but that all the names were put in the box without any regard to moral character, intelligence or the payment of taxes the preceding year. It was further found that upon the grand jury which found this bill of indictment, there were nine persons who had not paid taxes for the year preceding the first Monday of September, 1874, and there was one who was under twenty-one years of age, when the bill was found, which was at the August Term, 1875.

1. Was the objection by the prisoner taken in apt time and manner?

When the case of one charged with an offence, is to come before a particular grand jury, it is the general doctrine, with many exceptions, however, that he may be present at its organization and makes challenges either to the array or to the pollls, for cause. But this practice has never obtained in North Carolina, and would be attended with such inconveniences that to allow it would be of doubtful policy. Obviously, however, it would be a great wrong to deny to defendants all opportunity of objecting to the incompetency of the accusing tribuual. If lawful, it would not be practicable, in general, for the defendant to make objection prior to the finding of the bill, inasmuch as the charge is usually preferred by the grand jury without his knowledge or presence, and the alleged offence might even have been committed after the organization of the grand jury.

While, therefore, much difference of opinion has existed, and the decisions in the American courts have been conflicting on the question, whether, after bill found, the defendant can take advantage of the incompetency of the grand jury, who found it, the better opinion seems to be, that matters which go to the incompetency of the grand jury, may be excepted to after bill found, if it is done at the earliest opportunity afterwards, which clearly is, upon the arraignment, when the defendant is first called upon to answer. Such was the holding of this court at the last term in the State v. Haywood, 73 N. C., 437, following the State v. McIntyre, 2 Car. L. Rep., 28, and State v. Seaborn, 4 Dev., 305.

As the objection in this case was upon the arraignment, and before pleading over to the felony, and the facts relied upon as affecting the competency of the grand...