Ledbetter v. United States

108 F. 52, 47 C.C.A. 191, 1901 U.S. App. LEXIS 3744

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 16, 1901
• Docket: No. 994
• Status: Published

Opinion

PARDEE, Circuit Judge

(after stating tlie facts as above). It appears by tlie original transcript, bill of exceptions therein, and supplemental transcript, as given above, that the grand jury which found the indictment against the plaintiff in error was impaneled in the district court tor the Middle district of Alabama, that the indictment was returned in that court:, and that all of the proceedings thereafter were had in said court. This being the case, it was neither necessary nor proper that there should be any order remitting the indictment from the circuit court to the district court for trial. The fact that the indictment begins or was entitled or headed “In the Circuit Court of the United Fíales for the Middle District of Alabama,” while apparently misleading, did not have the force and effect to return llie indictment io that court, nor of itself did it constitute such .error as to vitiate the indictment. At most, it amounted io an imperfection in inatter of form, not necessarily prejudicial to the accused. See Rev. Ft. § 3025. 11 seems to be'well nettled that the record must show that the indictment was returned into court by the grand jury either by a minute entry to that effect or by indorsement of ihe fact upon the indictment itself, and that an omission will be fatal. Fee authorities oiled in volume 10, Am. & Eng. Ene. Law, pp. 410, 411. It mat be noticed that a defective record may be cured by proper entry ordered by the court during the term, or, if not called to the attention of the court during the term, then by proper order entered nunc pro tunc at a subsequent renn. Tin? minute entry with regard to the return of the indictment (claimed to apply) in this case is as follows: “November 21, 18!)!). The grand jury came inlo court, and returned 52 bills of indictment, each of which was indorsed ‘A true bill,’ and signed by Jas. W. Powell as foreman.” The file mark of the clink on the indictment was as follows: “Filed in open court this 21st day of November, 1899. J. W. Dimmick, Clink.” Neither this minute entry, nor Ihe file mark, nor the two together, was sufficient to identify the indictment as properly returned into the district court by ihe grand jury, and this seems lo he a plain error on’ the face of Ihe record, unless it is cured by ihe recitals in the bill of exceptions as follows:

“It; was shown by the United Slates that the indictment in this case was received by the judge of tlie district; court of the Touted States: that the entry on the united Pi ates district comí, minutes is as follows: ‘The grand jury came into court, and returned 52 hills of indictment, each of which was indorsed “A true hill.’' and signed by .Tas. ~\V. Powell as foreman,’ and that tlie bill in this cause was one of the bills of indictment thus returned by said grand jury: that the date of said return of said grand .jury is November -21, 1899: that ihe clerk of the said United States district court thereupon plant'd said ease for trial upon the docket of the district court.”

My Brethren air of-opinion that those recitals sufficiently identify ilie indictment as one properly found by the grand jury, and by iliat body returned into ihe district court of the United States for the Middle district of Alabama. As at the time the proof of tlie facts was made it was competent for the trial court by proper order to have corrected tlie oversights and omissions in question, it does not appear that the plaintiff in error was really prejudiced. The judgment of the district court is affirmed.