State v. Shepherd

• Decision Date: 01 April 1887
• Citation: State v. Shepherd, 1 S.E. 879, 97 N.C. 401 (N.C. 1887)
• Court: North Carolina Supreme Court
• Parties: State v. Shepherd.

1 S.E. 879

(97 N.C. 401)

State

v.Shepherd.

Supreme Court of North Carolina.

April 1, 1887

1.Criminal Practice—Motion to Quash—Judicial Discretion.

After pleading not guilty, defendant moved to quash an indictment on the ground that it did not appear that the witnesses on whose testimony said indictment was found had been sworn and examined before the grand jury.Held, discretionary at this stage of the trial.No error to deny the motion.

2.Same—Motion in Arrest—Indictment.

The fact that it does not appear that the witnesses whose names are indorsed upon an indictment were sworn and examined before the grand jury will not sustain a motion in arrest of judgment.Such motion must be founded on matter appearing, or which should appear, in the record.

3. Indictment—Indorsement.

The indorsement of the witnesses' names on an indictment is no part of the record.

Appeal from superior court, Mitchell county.

Defendant was convicted of assault and battery with a deadly weapon, and appealed to this court.

The Attorney General, for the State.No counselcontra.

Davis, J.This was a criminal action tried before Graves, J., at spring term, 1886, of Mitchell superior court.The defendant was charged with an assault and battery with a deadly weapon upon one Mosely.The names of two witnesses were indorsed on the bill of indictment, with this further indorsement: "Those marked thus t sent by the solicitor and sworn and examined by me, and this bill found a true bill, " and signed by the foreman of the grand jury.There was no mark set opposite the name of either witness to indicatethat he had been sworn and examined before the grand jury.The defendant entered a plea of "not guilty."Upon the call of the case, and before the jury was impaneled, the defendant moved to quash the indictment upon the ground that it did not appear from any indorsement on the bill that either of the witnesses marked had been sworn and examined before the grand jury.This motion was overruled, and the defendant put upon his trial.Upon the trial the state offered as a witness the clerk of the court, and the records of the court, to show that the grand jury had returned the bill in open court, indorsed "a true bill, " with the names of the witnesses indorsed on the indictment, as they appeared at the time of the trial.There was no other evidence to show that the witnesses had been sworn and examined at the finding of the bill of indictment.There was a verdict of guilty.The defendant moved in arrest of judgment.Motion overruled, and judgment, from which the defendant appealed.

The first exception was to the refusal of the court to quash the indictment.The record shows that the defendant had entered the plea of "not guilty, " and issue joined.After plea and issue joined, the motion to quash may...