Summary
holding where indictment charges an offense in language of statute, other and additional averments not required by statute should be disregarded as surplusage
Summary of this case from Wiggins v. StateOpinion
(October Term, 1884.)
Indictment Criminal Practice.
Where a bill of indictment is ignored, a new bill charging the defendant with the same offence may be sent to the same grand jury, with the names of other witnesses endorsed thereon.
( State v. Branch, 68 N.C. 186; State v. Brown, 81 N.C. 568, cited and approved.)
INDICTMENT for carrying concealed weapon, tried at Fall Term, 1884, of ORANGE Superior Court, before Philips, J.
Attorney-General, for the State.
Messrs. Graham Ruffin, for the defendant.
A bill of indictment against the defendant was sent to the grand jury at the fall term, 1884, of Orange superior court, which was "ignored." At the same term, a second or new bill was sent against the same party for the same offence before the same grand jury, and a witness other than that sent upon the first bill was sworn and sent. The second bill was returned into court "a true bill." Thereupon the defendant's counsel moved to quash the second bill, the court sustained the motion and the state appealed.
We are unable to conceive of any adequate reason why, where the grand jury ignores a bill, a new one may not be sent for the same offence and before the same grand jury, whether reference be had to the rights of the party accused, or the orderly course of judicial procedure. The bill ignored may not be returned to the grand jury because the presentment embodied in it has passed into the record, and the bill itself has gone upon the files of the court. But another bill may be sent at once, if need be, and the same and additional evidence laid before the grand jury to support it.
There might be a variety of reasons why a new or fresh bill should be sent, as that the jury might have failed upon the first bill to examine the witness properly, and elicit all the facts; or, they might have misapprehended the character of the evidence which they could understand and appreciate after some explanation of it by the court in a proper case; or, new evidence might be produced; and indeed, it is easy to conceive of a case in which it might be of great moment to society and a due administration of public justice that a new bill should be promptly sent.
It may be said that if a second bill can be sent in such a case, so may a third and fourth under like circumstances; and thus the accused might be greatly harrassed [harassed] and oppressed. It is not to be presumed that the prosecuting officer would needlessly multiply bills for the same offence, much less that he would so prostitute his office to gratify his own malice or that of others. He would be amenable for such an offence, and besides the grand jury might refuse to act upon bills thus sent, and complain to the court; and upon proper application the court would promptly interpose a wholesome check.
It is true that, ordinarily, where a party is recognized to appear at the court and answer a criminal charge, or where he is detained in prison to await the action of the grand jury upon a criminal charge against him, he is entitled to be discharged as soon as the bill is ignored and returned into court; but it is likewise true, that upon satisfactory evidence laid before the judge, he may refuse to discharge the accused, or, require him to give new bail; or a committing magistrate, upon like evidence, may at once issue a warrant for his re-arrest. This is frequently done. And in many cases, bills against parties are sent to the grand jury before they have been arrested and while they are at large. So that, no right of the accused is necessarily invaded or abridged by sending a second bill in the case mentioned.
It has been common practice in this state to send a second bill for the same offence at the same term of the court where the first had been ignored, if need be. We have not known such practice condemned, nor are we aware that it has in any case led to needless vexation or apprehension of the accused.
In State v. Branch, 68 N.C. 186, Chief Justice PEARSON, said: "But we can see no objection to the practice, that after an indictment has been returned `not a true bill,' the state solicitor, upon a suggestion to the court that he has procured further evidence, may be allowed to send another bill to the same grand jury, charging the same offence." In State v. Brown, 81 N.C. 568, this court held that a bill returned "not a true bill," could not be reconsidered by the same grand jury, but Mr. Justice ASHE said, that "in every such case a new bill should be sent." In that case he makes reference to what Mr. Justice BLACKSTONE said on the same subject, but he did not find it necessary to adopt his view, or definitely construe his language. BLACKSTONE says, that where the grand jury ignores a bill, — endorsed "not a true bill," or "not found" — then the party (the accused) "is discharged without further answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. 4 Bl. Com., 305. He does not say that a fresh bill may not be sent to the same grand jury, nor does he assign any reason why this may not be done. Other English authorities say that a fresh bill may be sent to a subsequent grand jury. There are, however, like high English authorities which say that a fresh bill may be sent to the same grand jury. Mr. CHITTY, in his Work on Criminal law, (vol. 1, p. 325) says: "If the bill be not found, or if the indictment is defective, a new and more regular one may be framed, and sent to the same, or another grand jury for their finding." Bac. Abr. Indictment, "D."
So it seems that the practice in England is not clearly or certainly settled, but the preponderance of authority there, is against sending a fresh bill to the same grand jury for the same offence where the first had been ignored. No satisfactory reason is assigned for this that we have seen. It is said to be founded in convenience, and this is probably the correct reason. Regina v. Humphrey, 1 Car. Mar., 601.
It seems, however, that this practice has not obtained recognition in this country. Knott v. Sargent, 125 Mass. 95; Thom. Mer. on Juries, § 661, and the cases there cited. As we have said, we can see no reason resting in principle, or founded in convenience, that forbids the view we have here expressed, and recognized in former decisions of this court.
There is error. The judgment quashing the indictment must be reversed, and the action proceeded with according to law. To this end, let this be certified to the superior court of Orange county.
Error. Reversed.