Commonwealth v. Fisher

73 Mass. 492

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1856
• Status: Published

Opinion

Metcalf, J.

1. The indictment sufficiently shows that it was found at a court held in this commonwealth. It is in a form which is usually adopted, and which has been adjudged to be sufficient. State v. Conley, 39 Maine, 78.

2. It is held in New Jersey, that when an indictment purports to be found on the affirmation of some of the grand jurors, it must appear by the indictment that they were authorized by law to take an affirmation instead of an oath. State v. Harris, 2 Halst. 361. But the court so held, because they felt bound by previous decisions in that state; saying: “We are not disposed to favor exceptions of this kind, which have nothing to do with the justice of the case; and, were the question now to arise for the first time, we should hesitate before we gave it our sanction.” In most of the states, (says Mr. Wharton,) the indictment is in the form adopted in the present case. Whart. Crim. Law, (2d ed.) 66. We sanction that form.

After the passing of the English St. of 3 & 4 W. 4, c. 49, ena bling Quakers and Moravians, in all places and for all purposes, to make affirmation instead of taking an oath, upon the calling of the grand jury at the Worcester assize's, one of them, a Quaker, made his affirmation; whereupon Baron Alderson directed that all the indictments should commence thus: “ The jurors for our Lady the Queen, upon their oath and affirmation, present ” &c. 9 Car. & P. 78. Exceptions overruled.