State v. Wilcox

• Decision Date: 09 December 1889
• Citation: 10 S.E. 453,104 N.C. 847
• Parties: STATE v. WILCOX.
• Court: North Carolina Supreme Court

10 S.E. 453

104 N.C. 847

STATE v. WILCOX.

Supreme Court of North Carolina

December 9, 1889

This was an indictment for perjury, tried at the spring term 1889, of the superior court of Ashe county, before ARMFIELD J. The defendant filed a plea in abatement, and the solicitor agreed with his counsel as to the facts, as follows "(1) That one grand juror, to-wit J. H. Jones, acted as a juror on the trial of the indictment wherein the alleged perjury was committed. (2) That the names of certain persons were drawn from the jury-box (No. one) by the county commissioners on the first Monday of February, 1889, and said names, four or five in number, were laid aside, upon the suggestion and supposition that some of said persons were absentees and non-residents of Ashe county at the time of said drawing, and that others were unknown in said county that one of said jurors was a citizen of said Ashe county at the time his name was laid aside, but the fact of his residence in the county at the time was not known to the said commissioners, and it was believed by said commissioners that said person was a resident of the state of Tennessee. (3) That James Williams, one of the grand jurors, at the time said jury was drawn, was a citizen of Ashe county, and duly qualified to act as such juror, but afterwards, and before said inquisition, his home, and the territory in which he lived, was detached by an act of the legislature from Ashe county, and annexed to the county of Alleghany." The court sustained the plea, and ordered that the indictment be quashed. The solicitor for the state appealed.

That a member of the grand jury presenting an indictment for perjury was a juror in the action in which the perjury is charged to have been committed is no ground for plea in abatement.

T. R. Purnell and J. F. Morphew, for appellant.

The Attorney General, for the State.

AVERY J., (after stating the facts as above.)

The fact that a member of the grand jury that found the indictment was also one of the petit jury that tried the action in which, as it is charged, the perjury was committed, is not good ground for a plea in abatement. If the juror was not otherwise disqualified by law, his personal knowledge or opinion that there was probable cause for believing the defendant guilty of perjury, formed from what had occurred under his own observation, when he was required to critically and closely scrutinize the evidence, made it his duty to disclose such peculiar knowledge to his fellows for their consideration and action. The grand jury are "returned to inquire of all offenses in general in the county, determinable by the court into which they are returned," and are sworn diligently to inquire and true presentment make of all such matters and things as are given them in charge. It is the duty of the presiding judge to give them in charge the whole criminal law, whether general or local in its operation. Thomp. & M. Juries, § 605; U.S. v. Hill, 1 Brock. 156. "The matters which, whether given in charge or of their own knowledge, are to be presented by the grand jury, are all offenses within the county. To grand juries is committed the preservation of the peace of the county; the care of bringing to light, for examination, trial, and punishment, all violence, outrage, indecency, and terror; everything that may occasion danger, disturbance, or dismay. Grand jurors are watchmen, stationed by the law, to survey the conduct of their fellow-citizens, and inquire where and by whom public authority has been violated or our constitution or laws infringed." Hardy's Case, 24 How. St. Tr. 201. It is their peculiar province to inform against and to present all offenders against the criminal laws of the state. State v. Wolcott, 21 Conn. 272; Ward v. State, 2 Mo. 120; State v. Terry, 30 Mo. 368.

There can be no question about the fact that at common law a grand jury was charged especially with inquisitorial duties, and where there was probable cause to suspect that the law had been violated, they were considered bound by their oaths to institute inquiry and investigation. They had originally "the right to send for witnesses, and have them sworn to give evidence generally, and to found presentments on the evidence of such witnesses." Whart. Crim. Law, § 457, note h. But our statute (Code, § 743) forbids the payment of the fees of any witness before the grand jury unless summoned by direction of the foreman or solicitor, as therein prescribed, or recognized by some justice of the peace to appear and testify before that body. While the grand jury is not allowed by the laws of North Carolina to send for witnesses generally for the purpose of inquisition, it is their duty to originate presentments as to all violations of law that have come under the personal observation...