Terrell v. Commonwealth
| Decision Date | 28 April 1922 |
| Citation | 194 Ky. 608 |
| Parties | Terrell v. Commonwealth. |
| Court | Kentucky Court of Appeals |
Appeal from Perry Circuit Court.
F. J. EVERSOLE, J. T. BOLING and JESSE MORGAN for appellant.
CHAS. I. DAWSON, Attorney General, and THOMAS B. McGREGOR, Assistant Attorney General, for appellee.
A short time after sundown, and before it became dark, on the evening of August 10, 1921, the appellant, Kye Terrell, in Perry county near the mining camp of the Blue Diamond Mines, shot and killed Lee Combs, a youth nineteen and one-half years of age. He was afterwards indicted for the homicide by the grand jury of the county in which he was charged with the crime of murder, and upon his trial thereunder he was convicted and his punishment fixed at life confinement in the penitentiary. His motion for a new trial was overruled and from the judgment pronounced upon the verdict he prosecutes this appeal, his counsel urging a number of reasons why, in his opinion, the judgment is erroneous.
The first, and indeed, according to our view, the only one possessing even the semblance of merit, is that the indictment was not indorsed and signed as required by section 119 of the Criminal Code of Practice, which says: "The concurrence of twelve (but now under the Constitution, section 248, nine) grand jurors is required to find an indictment; when so found, it must be endorsed `a true bill,' and the indorsement signed by the foreman." Upon the back of the indictment there was signed the name, "G. W. Eversole," and immediately thereunder, and slightly to the right, was the indorsement "a true bill." The order of the court filing it recites that it was received from the hands of the foreman in the presence of the grand jury and filed in open court and that the grand jury, after answering to the call of their names, "through their foreman reported an indictment against Kye Terrell, charging him with the crime of wilful murder, said indictment was endorsed, a true bill, by the foreman of the grand jury, and was handed by the foreman of the grand jury in the presence of the grand jury to the clerk of this court, who marked same filed as the law directs." The purpose of the requirement, that the indictment shall be indorsed "a true bill" and that it shall be signed or certified as such by the foreman of the grand jury, is to unerringly identify the indictment and to evidence the fact that it was concurred in by the grand jury in the manner required by law, and such indorsement constitutes the only competent evidence that the paper filed is an indictment legally found. Oliver v. Commonwealth, 95 Ky. 372; Pence v. Commonwealth, idem 618, and Patterson v. Commonwealth, 86 Ky. 313, also reported in 99 Ky. 610. Those cases, as well as those of Commonwealth v. L. & N. R. R. Co., 17 Ky. L. R. 562 (two cases), and same v. same, idem 563, hold that the code requirements as to the indorsement and signature of the foreman are mandatory, and the opinion in the Pence case holds that when the order of court recites a compliance with the section of the code it will be sufficient evidence of that fact unless the record affirmatively shows to the contrary. In that case the record did not show any indorsement or signing on the indictment, but the order recited that each was properly made and it was held that the court would presume that they were omitted from the transcript by mistake or oversight of the clerk in copying it. In this case, however, the point was raised in the court below and we think that fact sufficient to overcome the presumption which the court indulged in the Pence case. The gravamen of the contention now under consideration is that the indorsement, "a true bill," appearing upon the indictment was not "signed" within the contemplation of the law by the foreman of the grand jury and as is required by section 119, supra, of the criminal code, because the name of the foreman was not written under that indorsement, but instead it was written immediately above it; and in support of the contention, section 468 of the statutes is relied on. That section says: "When the law requires any writing to be signed by a party thereto, it shall not be deemed to be signed unless the signature be subscribed at the end or close of such writing." If, therefore, the "writing" referred to in that section, the signing of which is required to be at its end or close, was intended to include the signing of the name of the foreman upon the indictment as required by section 119 of the criminal code, then there exists some grounds for this extremely technical objection.
At common law and in the absence of a statute prescribing a requirement to the contrary, the "signing" of any writing which the law required to be so evidenced need not be at the end, bottom or close of the paper, but the signature to be effective may be placed either at the bottom, top, middle, side or margin of the paper by the one whose duty it was to sign it and if so written with the intention that the written name should perform the legal requirement of a signature the writing would be deemed as legally and properly signed. In other words, at common law the precise place on the writing where the signature was made was neither material nor essential. In 25 A. & E. Ency. of Law, second edition, page 1065, the text upon this subject says:
Some of the cases supporting the statements of the text are: Auzerais v. Naglee, 74 Cal. 60; California Canneries Co. v. Scatena, 117 Cal. 447; Wise v. Ray, 3 Green (Iowa) 430; Drury v. Young, 58 Md. 546, 42 Am. Rep. 443; Davis v. Shields, 26 Wend. (N. Y) 341; Adams v. Field, 21 Vt. 256; Tingley v. Bellingham Bay Boom Co., 644; Sarah Miles' Will, 4 Dana 1; Allen v. Everett, 12 B. Mon. 378, and Soward v. Soward, 1 Duvall, 126. Those cases deal with questions growing out of the proper execution of contracts required by the statute of frauds to be in writing and "signed by the party charged," and questions involving the proper execution of wills under statutes requiring them to be signed by the testator. The original English Statutes, upon those two subjects, used the word "signed" when referring to the execution of the writing, and the English courts, as will be seen from the cases, supra, held that in as much as there was no statutory requirement as to the place on the writing where the signature should appear, it was competent under the common law rule for it to appear anywhere thereon or therein if written with obligatory intention. Many of the earlier statutes of the states were phrased similarly to the English statutes and were given the same construction. Thus, in the cited Vermont case of Adams v. Field (which was a will case, and the name of the testator appeared at the beginning or in the body of the will, as was also true in the first two Kentucky cases cited above), the court said: "The etymology of the word `sign' does not necessarily require the signing to be at the bottom of the instrument; and it is much a matter of taste, as to the place of signing." The other cases cited announce the same rule in substance, and the New York case of Davis v. Shields, as well as the Soward case, supra, from this court, points out the etymological distinction between "signing" and "subscribing" a writing, the latter meaning a signature at the end or bottom thereof. Hence, the court in both of the two latter cases held that the signature must be at the end or bottom of the writing involved, because there had been a change in the requirement of the prevailing statute by substituting the word "subscribed" for the word "signed." Moreover, if such was not the common law rule with reference to the signing of a writing there could have been no purpose in the enactment of section 468, supra, for if that rule required the signature to be at the end or bottom of the writing the statute would be superfluous.
We, therefore, conclude that, unless the "signing" by the foreman of the grand jury of the required indorsement, "a true bill," is included in, and to be governed by, the provisions of section 468 of the statute the signing by the foreman need not be under the indorsement but it is sufficient if it is placed in such juxtaposition thereto as to clearly indicate that it was the intention of the foreman to comply with the code requirements in writing his name thereon. The rule is so stated in the text of 22 Cyc. 255-256, and it was so held by the court in the cases of State v. Bowman, 103 Ind. 69, 2 N. E. 289, and State v. Hogan, 31 Mo. 340; the text of the work referred to, which is supported by the cases cited, says: "But a variance from these words (the required indorsement and the signature of the foreman) will not be fatal, if they are followed in substance, and it is immaterial, in the absence of express provisions in the statute, on what part of the indictment the indorsement or the signature (of the foreman) appears, or that the signature does not immediately follow the indorsement." In the case of Commonwealth v. Ripperdon, Littell's Select cases (16 Ky) 194, it is said: "It is, therefore, a general rule, whenever a statute provides that a thing shall be done, without prescribing the mode of doing it, that it shall be done according to the common law mode." Since, therefore, the foreman's signature in this case was sufficient, unless controlled by the section of the statute, supra, it becomes necessary to determine its effect, if any, upon that question.
It will be observed that the writing therein referred to is one which is required "to be signed by a party thereto....
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