State v. Hines

• Decision Date: 31 January 1881
• Citation: 84 N.C. 810
• Court: North Carolina Supreme Court
• Parties: STATE v. WILLIAM HINES.

84 N.C. 810

STATE

v.WILLIAM HINES.

Supreme Court of North Carolina.

January Term, 1881.

INDICTMENT for larceny tried at Fall Term, 1880, of WILSON Superior Court, before Gudger, J.

Upon calling this case for trial, the defendant moved to quash the indictment for the reasons following: On the back of the bill under the word “witnesses” the names of two persons were written, one of whom was R. A. Johnston; and immediately below these names the following certificate was endorsed, to-wit: ““Those marked + sworn by the foreman and examined before the grand jury:” “A true bill.” This certificate was signed officially by the foreman of the grand jury, but neither of the names of the witnesses endorsed on the bill had the “““cross mark” or other designation of such witness having been sworn. From the oral testimony of said Johnston it did appear, and the court accordingly found as a fact, that he had been sworn as a witness on said bill by the foreman and examined before the grand jury. Upon the evidence of the clerk of the court, His Honor further found as a fact that the indictment had been duly returned by the foreman into open court, as a “a true bill,” and that the names of said witnesses appeared thereon endorsed when it was returned.

The court being of opinion that under the act of 1879, ch. 12, § 1, the certificate of the foreman must show what witnesses were sworn, by marking their names, sustained the motion to quash, and thereupon, Galloway, solicitor for the state, appealed.

Attorney General, for the State .

Messrs. Murray & Woodard, for defendant .

ASHE, J.

Before the act of 1879, if an indictment was found without evidence or upon illegal evidence, as upon the testimony of witnesses not sworn, upon proof of the fact the bill might be quashed or the matter might have been pleaded in abatement, but could not have been taken advantage of by motion in arrest of judgment; for the endorsements on the bill have been held to be no part of the record. But the omission to designate the witnesess who may have been sworn, by a + mark, was not sufficient to quash the bill. The fact that they were not sworn must have been established by proof offered by the defendant. The motion to quash could not be sustained when it was made to appear that the witnesses had been sworn, although there was no endorsement on the bill to that effect. State v. Roberts, 2 Dev. & Bat., 540; State v. Cain, 1 Hawks, 352.

This principle we think has not been...