Steele v. State
| Decision Date | 31 December 1846 |
| Citation | 1 Tex. 142 |
| Parties | JOHN STEELE v. THE STATE |
| Court | Texas Supreme Court |
Appeal from Harris County.
The 15th section of the act “regulating juries,” approved 4th of May, 1846, which requires the foreman of the grand jury “to indorse on the back of each presentment or indictmsnt, the name or names of the witnesses for the prosecution, upon whose evidence the presentment or indictment was found, certifying thereto, as “foreman,” is merely directory. Such indorsement is not a constituent part of the indictment or of the finding of the grand jury, and is not essential to its validity.
At the fall term, 1846, the appellant was indicted for keeping and exhibiting a faro bank for gaming.
The foreman of the grand jury indorsed the names of two witnesses on the back of the indictment and certified that it was upon their testimony the bill was found. The defendant filed a plea in abatement, averring that one of the witnesses entered upon the indictment by the foreman was not before the grand jury, and did not testify in the cause. To this plea the state demurred, and the demurrer was sustained.
The defendant was convicted and judgment entered accordingly, from which this appeal was taken.
Buckley, for appellant.
The demurrer ought to have been overruled and the plea in abatement sustained by the court below.
The only point in the cause is the false indorsement upon the indictment, by the foreman of the grand jury. By the indorsement it seems that the bill was found upon the joint testimony of two witnesses. The demurrer to the plea in abatement admits that the indorsement is untrue. This indorsement, under the statute, is material to make the finding valid. It is an additional requisite, without which no person named in the bill could be required to answer the indictment. Statutes of the kind must be strictly construed against the state, and liberally in favor of the accused -- more so than indictments at common law. 4 Port. 401; 9 Id. 495.
The fact that there were two witnesses indorsed on the indictment does not change the case at all.
Suppose there had been but one, and it was admitted that no witness was before the grand jury. Now, as the statute requires, imperatively, that the witnesses upon whose testimony the bill is found shall be indorsed on the indictment, in this case it must be conceded that the finding would be bad, because not done in accordance with law.
The case at bar is equally strong in principle, as if there had been but one witness; because, the entry on the indictment, that the testimony of two witnesses was taken, justifies the conclusion that the evidence of neither one of them, alone, would have enabled the jury to find the bill; but that one witness proved one fact, not in itself amounting to the charge made; and the other witness proved another fact, which, taken in connection with the evidence of the other, made out the offense; or, that it required the joint testimony of both, to justify the finding. The demurrer admits there was but one witness before the grand jury, and the indorsement shows that the evidence of both was necessary to make out the charge. The case standing thus, the judgment should be arrested, unless the court wholly disregard the requirements of the statute. Acts 1st Leg. p. 174, sec. 15.
Attorney General, for appellee, in support of the demurrer, contended:
1st. The act of the legislature, requiring the foreman of the grand jury to indorse on the indictment the names of the witnesses upon whose testimony it was found, is merely directory, and any error in so doing, or even omission to make the indorsement, would not so vitiate the indictment as to justify its being quashed.
2d. The motion shows that...
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Boulter v. State
...v. State, 19 Tex. Ct. App. 176, the Texas cases were reviewed upon this question, and the rule announced in the early case of Steele v. State, 1 Tex. 142, was followed, that statute requiring an indorsement of the names of the witnesses on the back of the indictment was merely directory, an......
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Strong v. State
...of the state. As early as 1846, our Supreme Court, when composed of Judges Hemphill, Lipscomb, and Wheeler, in the case of Steele v. State, 1 Tex. 142, expressly held that the provisions of this law "are clearly in their character directory." This decision has been followed in a great many ......
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Jackson v. State
...indorse thereon the names of the witnesses upon whose testimony the same was found," is merely directory and not mandatory. See Steele v. State, 1 Tex. 142; Walker v. State, 19 Tex.App. 176; Tate v. State, 139 Tex.Cr. R. 616, 141 S.W.2d 351; Pruett v. State, 114 Tex.Cr.R. 44, 24 S.W.2d 41; ......
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Tate v. State
...statute that the same is only directory—not mandatory, and has been so held from the beginning of our State jurisprudence. See Steele v. State, 1 Tex. 142; Walker v. State, 19 Tex.App. 176; Jackson v. State, 103 Tex.Cr.R. 258, 280 S.W. 836; Easterwood v. State, 132 Tex.Cr.R. 9, 101 S.W.2d 5......