State v. Harrison

• Decision Date: 21 October 1889
• Parties: STATE v. HARRISON.
• Court: North Carolina Supreme Court

10 S.E. 131

104 N.C. 728

STATE v. HARRISON.

Supreme Court of North Carolina

October 21, 1889

It appears by the record that at August term, 1888, of the superior court of the county of Edgecombe, the grand jury returned into court an indictment, wherein Alice Harrison the present appellee, is charged with "attempt to poison," and on the back thereof is the entry, "A true bill." At the January term, 1889, of that court the said Alice Harrison pleaded to that indictment "Not guilty." On the trial at the same term the jury rendered a verdict of guilty, whereupon she presented before the court her affidavit, stating information "that the fact has come to her knowledge since the trial of the said cause that the grand jury never acted upon the bill of indictment upon which she was tried, and hence no true bill was found against her;" and also the affidavit of Thomas E. Lewis, wherein he says "that he was foreman of the grand jury of the inferior court of Edgecombe county at and during the entire August term, 1888, and presided over, and was present during all the deliberations of said grand jury, and no bill of any kind was acted on by said grand jury against Alice Harrison and no true bill was returned by the grand jury in such cause; especially no bill was found charging the defendant with attempt to poison Georgia Redman, and no witnesses were examined by the grand jury in said cause." Upon the same she "moved the court to amend the record of the August term, 1888, so as to show that the said indictment was not returned, 'A true bill,' nor acted upon by the grand jury. The court ruled that the motion was not in apt time and declined further to consider the said motion." The defendant excepted. The defendant "then moved in arrest of judgment that there had been no bill of indictment found by the grand jury; that there had been no legal trial; that the court had no jurisdiction to sentence the defendant, as she had not been tried on a bill of indictment found by the grand jury." The court denied the motion, and the defendant excepted. The court gave judgment against her, and she appealed to the superior court, and that court gave judgment, whereof the following is a copy: "It appearing to the court from the affidavit of the foreman of the grand jury that no bill of indictment was found against the defendant, it is therefore ordered and adjudged that the judgment in the action be arrested. Let this be certified to the inferior court. Judgment arrested." From that judgment the solicitor for the state appealed to this court.

After verdict, and before judgment, defendant learned that the grand jury had never acted on the indictment on which she was tried, and moved to amend the record so as to show that fact. Held, that the court erroneously refused to consider the motion.

The Attorney General and Gilliam & Son, for the State.

MERRIMON J., (after stating the facts as above.)

The motion in arrest of judgment should not have been allowed certainly in the present state of the record, because the matter assigned as the ground of it did not appear on the face of the record. The grounds of such motions must appear upon the face of the record proper, and present, affirmatively or negatively, such fatal defects in it as render it improper to give judgment upon it. The court, seeing such defect, cannot proceed to judgment. The essential groundwork of it in such cases does not appear, and there is no proper foundation on which it can rest. State v. Potter, Phil.

(N. C.) 338; State v. Bobbitt, 70 N.C. 81; State v Roberts, 2 Dev. & B. 540; 1 Chit. Crim. Law, 601. The superior court should, however, have sustained the exception to the refusal of the inferior court to consider and grant or deny the motion of the defendant to amend the record in respect to the presentment of the indictment by the grand jury, on the ground that it was not made in apt time. That court had the power, and it was its duty, at all appropriate times and promptly to make its record speak the truth. Records are serious things. They import verity, and while they remain they cannot be attacked...