State v. Mertens

• Decision Date: 31 March 1851
• Citation: 14 Mo. 94
• Parties: STATE v. WILLIAM MERTENS.
• Court: Missouri Supreme Court

14 Mo. 94

STATE

v.WILLIAM MERTENS.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT

At the May term of the St. Louis Criminal Court, the grand jury of St. Louis county found and returned into court an indictment against the defendant for stealing certain property of Joseph Mentdrops, therein named, in and from the dwelling-house of Gertard Timmerman, under the 30th and 36th sections, article 3, pages 359, 360, of the act concerning Crimes and Punishments. Afterwards, this cause coming on to be tried, the State proved up the charge as contained in said indictment, and the jury found the defendant guilty as charged; and assessed his punishment at imprisonment in the penitentiary of this State for the period of two years; and afterwards the defendant, by his counsel, to-wit: on the 19th of July, 1850, filed his motion in arrest, for that said verdict varies from the entry of the record of this case, in this-- that in said verdict the words, “of grand larceny in manner and form as charged upon him in said indictment,” are omitted, while in said record they are entered as belonging to said verdict. Also, that said verdict was not found in manner and form as required by law. Afterwards, to-wit: on the 10th of August, 1850, the defendant, by counsel, abandoned the above motion by consent of the counsel for the State, and by leave of the court, filed an additional motion in arrest of judgment, for the following reason: That there was no presentment against the defendant for the offense with which he is charged; inasmuch as said indictment is not legally certified by the foreman of the grand jury. Also, that the verdict, as found by the petit jury against him (defendant), is not according to law, because it does not state the degree of the offense of which they found him guilty; nor does it state in manner and form, as charged in the indictment, as required by law. Upon the hearing of this motion, the State referred to and read to the court the record of said court, showing that Elihu H. Shepherd was the foreman of the said grand jury of the May term of said Criminal Court, duly appointed and sworn, and that the indictment in this cause was brought by said grand jury, with said Shepherd as foreman, into open court, with many other indictments, and delivered to the court. And said grand jury acknowledged the said indictment, together with many others, there in open court to be each and every one of them true bills. And it was also proved that the words, “a true bill,” indorsed upon the said indictment, were in the proper hand-writing of said Elihu H. Shepherd, the foreman of said grand jury. But the court sustained said motion, and arrested said judgment for the reason contained in said motion, that said indictment was not certified under the hand of the foreman, as required by law. And the State then and there excepted, and brings the case here by appeal.

LACKLAND, for State. The 19th section of article 3, of Practice and Proceedings in Criminal Cases, providing that when an indictment shall be found, “the foreman of the grand jury shall certify under his hand, that such indictment is a true bill,” is merely directory, only the means pointed out by statute, by which the finding of the grand jury can be authenticated. It does not go to the validity of the bill, but merely to its authenticity. “The statutory provision that an indictment shall be indorsed ‘a true bill,’ signed by the foreman, is directory, and although this is the proper evidence of the return of the bill, a due return in the absence of it may be proved by other evidence.” Waukon-chaw-neek-kaw v. United States, 1 Morris' U. S. C. C. Iowa, 332; U. S. Am. Digest for 1848, p. 223. At common law, when the grand jury found a bill of indictment, they returned it into open court, indorsed billa verba, or “true bill,” but no signature to this indictment was necessary. The return of the bill into open court was sufficient evidence of its authenticity, but if either of the above words was omitted, the indictment for that reason was void, showing that the words billa vera were necessary to make the indictment valid, without which it could have no legal existence. The signature of the foreman to the indictment only tends to make more perfect the proof of the authenticity of the indictment a more perfect identity of the instrument containing the charge. State v. Calhoun, 1 Dev. & Bat. 376. Although the practice of indorsing an indictment “a true bill,” signed by the...