State v. Mcbroom

• Decision Date: 13 November 1900
• Citation: 37 S.E. 193,127 N.C. 528
• Court: North Carolina Supreme Court
• Parties: STATE. v. McBROOM.

127 N.C. 528

37 S.E. 193

STATE.

v.McBROOM.

Supreme Court of North Carolina.

Nov. 13, 1900.

INDICTMENT — RETURN OF GRAND JURY — INDORSEMENT OF FINDING—IMPLICATION—INFORMALITIES—STATUTORY PROVISION.

1. Where an indictment for perjury contained the following indorsement: "Those marked 'X' sworn by the undersigned foreman and examined before the grand jury, and this bill found. W., Foreman Grand Jury, "—the conviction will be arrested, as such indorsement failed to show that the grand jury returned the indictment as a "true bill, " according to the immemorial practice in the state.

2. Where an indictment was returned into court without an indorsement that the same was a "true bill, " the fact that it was returned into court would not justify an inference that it was actually found as a true bill, as it is the duty of the grand jury to return indictments not found as true.

3. Code, § 1183, providing that every indictment or information shall be sufficient if it express the charge in a plain, intelligible, and explicit manner, and the same shall not be quashed, nor judgment thereon stayed, by reason of any informality, if sufficient matter appears to enable the court to proceed to judgment, does not cure an indictment returned by a grand jury containing an indorsement which does not indicate that the indictment was returned as a "true bill." Clark and Montgomery, JJ., dissenting.

Appeal from superior court, Person county; Moore, Judge.

W. R. McBroom was convicted of perjury, and appeals. Reversed.

Graham & Graham and Douglass & Simms, for appellant.

Brown Shepherd and the Attorney General, for the State.

FAIRCLOTH, C. J. The defendant is indicted for perjury, and was convicted. In this court the defendant moves to arrest the judgment on the ground that the record does not show that the bill of indictment was found a "true bill" by the grand jury. The indorsement on the bill was in these words: "Those marked 'X' sworn by the undersigned foreman and examined before the grand jury, and this bill found. Wm. F. Reade, Foreman Grand Jury." Is the bill sufficient in law? We are informed by the attorney general that 31 states require by statute that bills of indictment shall be indorsed "A true bill, " and that 14 states, including North Carolina, have no statute upon the subject. In these 14 states the common-law requirement still prevails. In State v. Vincent, 4 N. C. 493, Taylor, C. J., said: "An indictment is an accusation found by an inquest of 12 or more lawful jurors upon their oaths. The law has prescribed certain forms in which such accusations shall be drawn, and will not allow any citizen to be punished unless such precision is observed." In State v. Calhoon, 18 N. C. 374, this court said: "It seems that the signing the name of the foreman to the indorsement of a 'true bill' on a bill of indictment, though a salutary practice, is not essential to its validity." This has been many times followed, and held that if the indictment is indorsed "A true bill, " though not signed by the foreman and presented by the jury to the court, and it is received as such, that is sufficient. In State v. Cox, 28 N. C. 446, the court said: "It is settled in this state that an indictment need not be signed by any one. * * * It is the action of the jury in publicly returning the bill into the court as true, and the recording or filing it among the records, that make it effectual." In State v. Guilford, 49 N. C. 83, Pearson, J., explaining the distinction between an indictment and a presentment, said: "The manner of presenting a bill of indictment is for the grand jury, after having examined the witnesses on the part of the state touching the allegations set out in the indictment, to come into open court, and return the bill indorsed 'A true bill, ' which is done by the foreman, acting for the grand jury, and the return is made in their presence;" and, if the bill is not passed, the return is, "Not a true bill." These cases agree that It is notnecessary that the record should he incumbered with useless details, such as who was appointed foreman, the signature of the foreman, the signature of the state's attorney, what witnesses were sworn and sent, and who was the constable of the jury, etc. It is sufficient and proper that the record should only set out the fact that it was presented by the grand jury. There are numerous other cases in line with the above, as State v. Bordeaux, 93 N. C. 560, and State v. Weaver, 104 N. C. 758, 10 S. E. 486.

In all the cases we have examined in which such questions arose, it appears that the bill was indorsed "A true bill, " and the question now before us was not under consideration. The questions were as to the signature of the foreman, the manner in which the bill was presented to the court, and what ought to be spread upon court record. In none was it denied that the bill must be indorsed "A true bill." In State v. Harwood, 60 N. C. 226, the motion in arrest was that the record failed to show the indictment was found a "true bill" by the grand jury. The opinion of two lines on that feature is not plain. It, however, refers to State v. Guilford, supra, as the authority, and we have already shown that upon that case the indictment should be indorsed "A true bill." We have therefore found no decision by this court on the question now presented. The nearest approach is State v. Collins, 14 N. C. 117, 121. The bill was found in Jones county, and removed to Lenoir county. The transcript to Lenoir was considered defective, and a certiorari brought forward all that was needed, and showed that the indorsement was a "true bill, " and signed by the foreman. In his opinion, Henderson, C. J., said: "Indeed, I have been much at a loss to see the necessity of any indorsement. The grand jury come into court and make their return, which the court records, not from that memorandum made out of court, but they pronounce, or are presumed to pronounce, it in court. It is not the indorsement which is the record, but that which is recorded as the jurors' response. The indorsement is a mere minute for making the record. But I believe the law is understood to be otherwise." Here we have a suggestion of the chief justice (which is the state's contention now), and we have his belief that the law in this state is otherwise.

Turning to other authorities, we find in Archb. Cr. PI. 64, that "A true bill" or "No true bill" must be indorsed on the indictment, as the evidence satisfies or does not satisfy the grand jury. The foreman and jury carry the indictments so indorsed into court, and deliver them to the clerk, who states to the court the substance of each and the indorsement upon it "In strict legal parlance, an indictment is not so called until it has been found 'A true bill' by the grand jury; before that it is named 'a bill' only." 1 Chit. Cr. Law, 324, says: "The jury indorses 'A true bill' or 'Not a true bill.* * * * This indorsement 'A true bill' made upon the bill becomes part of the indictment and renders a complete accusation against the prisoner. An indictment without such indorsement signed by the foreman, is a nullity." In 4 Bl. Comm. 305, it is stated: "If they [the jury] are satisfied of the truth of the accusation, they then indorse upon it 'A true bill.' The indictment is then said to be found, and the party stands indicted, * * * and the indictment, when so found, is publicly delivered into court." Same in 2 Hale, P. C. 161. This proposition is expressly held in Nomaque v. People, 1 Breese, 145, and in State v. Creighton, 1 Nott & McC. 256, and State v. Elkins, Meigs, 109. In Webster's Case, 5 Greenl. 432, the bill was certified in the usual form, except at the bottom of the indictment, and immediately before the signature of the foreman, the words "A true bill" were omitted. After conviction the defendant moved in arrest of judgment on the ground that there was no legal evidence that the indictment was a true bill. This is exactly on all fours with the present case. Judgment was arrested.

Finding, therefore, that the uniform practice in this state and the other states, in the absence of statutes, has been settled from immemorial time, we can find no reason for changing proceedings in criminal cases, which would disturb practice in particulars which have, from long usage, acquired the character of legal principles. We cannot presume that the jury intended a true bill, because it is equally as easy to presume that they intended not a true bill, in the absence of any indication either way in the indorsement. No inference of a true bill can be drawn from the fact that the foreman returns true bills in open court, because it is also his duty to return bills found not true. The omission may have been inadvertent. We cannot tell. It is certain that public officers should be careful in discharging their duties as they are paid and sworn to do. Suppose a register of deeds should furnish a copy of a deed, and sign his name, even officially, without any certification. Such a paper would not be received as evidence, even in a civil proceeding. Code, § 1183, is no cure for the omission, as that applies only to the informality or refinement "in the bill or proceeding, " even if the omission was only an informality.

Since writing the above, our attention has been called to Frisbie v. U. S., 157 U. S. 160, 15 Sup. Ct. 586, 39 L. Ed. 657. That case holds that the omission of the indorsement "A true bill" is not "necessarily, and under all circumstances, fatal, although it is advisable that the indictment should be indorsed." The opinion proceeds: "It may be conceded that in the mother country, formerly at least, such indorsement and authentication were essential." The court then intimates that in this country the common practice is different and concludes that "it is advisable, at least, that the indictment be indorsed according to the ancient practice, for such indorsement is a short convenient and certainmethod of...