State v. Ivey

• Decision Date: 05 March 1888
• Citation: 5 S.E. 407,100 N.C. 539
• Parties: STATE v. IVEY.
• Court: North Carolina Supreme Court

5 S.E. 407

100 N.C. 539

STATE v. IVEY.

Supreme Court of North Carolina

March 5, 1888

Appeal from superior court, Harnett county; JAMES H. MERRIMON Judge.

After an indictment returned by a grand jury has been quashed for informality a second indictment for the same offense returned by them without further examination of witnesses should be quashed on motion, as it is not good as a new bill, and cannot be deemed an additional count to the first indictment.

The Attorney General, for the State.

F. P Jones, for defendant.

MERRIMON J.

On Tuesday of the term of the court, a bill of indictment was sent to the grand jury, and upon the examination of witnesses, duly sworn before them, they returned the same into the court "a true bill." The solicitor for the state conceded that this indictment was insufficient, did not charge the offense intended, and it was quashed by the court. Thereupon a fresh bill was sent to the grand jury on Thursday of the term, which they returned into court "a true bill," without examining any of the witnesses indorsed upon the same, believing they had a right to do so, because they had already examined the witnesses on the first bill sent to them. These facts appearing, upon the motion of the defendant the court quashed the indictment, and gave judgment for him, from which the solicitor appealed to this court.

In criminal procedure, properly speaking, a presentment by a grand jury is the official notice taken by them of any criminal offense from their own knowledge or observation, or the same of any member of their body, or from the evidence of any competent witness, duly sworn, given before them, or any proper evidence, in the absence of a bill of indictment for the offense laid before them. It should be in writing, and contain a summary of the accusation, the names of the person or persons presented, and the names of the witnesses who can give evidence of the facts of the offense. It is not necessary that it should be signed by all the grand jury, or at all, though usually it is signed by the foreman, but it should be delivered to the court in their presence by their foreman, who is their official organ. Thus returned, it passes into the record of the court, and becomes effectual and the beginning of the prosecution. It requires no further authentication. It is such return into court and putting it of record that gives it efficient force. State v. Cain, 1 Hawks, 352; State v. Cox, 6 Ired. 440; 4 Bl. Comm 301; 1 Bish. Crim. Proc. § 731. Usually, a bill of indictment is found upon the presentment by the solicitor for the state and sent before the grand jury to be acted upon by them. The names of the witnesses to be examined are written on the back of the bill, and they must be sworn in open court, or by the foreman of the grand jury, as allowed by the statute, (Code § 1742,) before they are examined. But a presentment is not essential to a bill of indictment, nor is it necessarily initiatory to a criminal prosecution. The solicitor for the state--an important officer, in whom reposes a high trust,--may lay before the grand jury such bills of indictment as in his sound discretion he may deem proper, acting upon trustworthy information. He should carefully guard himself in the exercise of his office against imposition and persons who seek to gratify their spleen or malice. The indictment is the formal written accusation of one or more persons of a crime or misdemeanor preferred to and presented upon their oath by a grand jury. In strict legal parlance it is not so called until the bill has been found "a true bill" by the grand jury; until then it is called simply a "bill." 4 Bl. Comm. 302; Arch. Crim. Pl. 1, 58, 59. The action of the grand jury upon bills of indictment is very important to individuals and the public. On the one hand, the safety, good order, and well-being of society are to be affected, for good or evil, by it, and, on the other, a person should not be causelessly accused of crime. This should be done upon solemn consideration, and for reasonably apparent cause. It may be of great consequence to the accused whether the accusation be well or ill founded. Such bills are not to be treated lightly, but seriously; the action of the grand jury must be based, not merely upon conjecture, suspicion, mere...