State v. . Hines

Supreme Court of North Carolina

State v. . Hines

84 N.C. 810

CourtSupreme Court of North Carolina

DecidedJanuary 5, 1881

StatusPublished

Cited by8 cases

This text of 84 N.C. 810 (State v. . Hines) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . Hines, 84 N.C. 810 (N.C. 1881).

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Opinion

Ashe, J.

Before the act of 1879, if an indictment was found without evidence or upon illegal evidence, as upon the testimony of witnesses not sworn, upon proof of the fact the bill might be quashed or the matter might have been pleaded in abatement, but could not have been taken advantage of by motion in arrest of judgment; for the endorsements on the bill have been held to be no part of the record. But the omission to designate the witnesess who may have been sworn, by a + mark, was not sufficient to quash the bill. The fact that they were not sworn must have been established by proof offered by the defendant. The motion to quash could not be sustained when it was made to appear that thewitnesses had been sworn, although there was no endorsement on the bill to that effect. State v. Roberts, 2 Dev. & Bat., 540; State v. Cain, 1 Hawks, 352.

- This principle we think has not been changed by the act of 1879, ch. 12, § 1, which empowers the foremen of grand juries to administer oaths to persons to be examined before grand juries, and provides that the foreman should mark on the bill the names of the witnesses sworn and examined *812 before the grand jury. We hold that this provision is merely directory, and that it is competent for the state, when the foreman has omitted to mark the witnesses sworn, to show by proof that they were stvorn.

In Massachusetts, they have an act of assembly (Rev. Statutes, ch. 136, § 9), which provides “that a list of all witnesses sworn before the grand jury during the term shall be returned to the court under the hand of the foreman ; and it has been there held that it is directory merely, and a noncompliance therewith is no ground for quashing an indictment.” Com. v. Edwards, 4 Gray, (Mass.) 1.

In our case there was proof that the witnesses examined before the grand jury were sworn. The indictment therefore should not have been quashed. There is error. Let this be certified to the superior court of Wilson that further proceedings may be had ip conformity to this opinion and the law.

Per Curiam. • • Error.

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Ashe, J.

Before the act of 1879, if an indictment was found without evidence or upon illegal evidence, as upon the testimony of witnesses not sworn, upon proof of the fact the bill might be quashed or the matter might have been pleaded in abatement, but could not have been taken advantage of by motion in arrest of judgment; for the endorsements on the bill have been held to be no part of the record. But the omission to designate the witnesess who may have been sworn, by a + mark, was not sufficient to quash the bill. The fact that they were not sworn must have been established by proof offered by the defendant. The motion to quash could not be sustained when it was made to appear that thewitnesses had been sworn, although there was no endorsement on the bill to that effect. State v. Roberts, 2 Dev. & Bat., 540; State v. Cain, 1 Hawks, 352.

- This principle we think has not been changed by the act of 1879, ch. 12, § 1, which empowers the foremen of grand juries to administer oaths to persons to be examined before grand juries, and provides that the foreman should mark on the bill the names of the witnesses sworn and examined *812 before the grand jury. We hold that this provision is merely directory, and that it is competent for the state, when the foreman has omitted to mark the witnesses sworn, to show by proof that they were stvorn.

In Massachusetts, they have an act of assembly (Rev. Statutes, ch. 136, § 9), which provides “that a list of all witnesses sworn before the grand jury during the term shall be returned to the court under the hand of the foreman ; and it has been there held that it is directory merely, and a noncompliance therewith is no ground for quashing an indictment.” Com. v. Edwards, 4 Gray, (Mass.) 1.

In our case there was proof that the witnesses examined before the grand jury were sworn. The indictment therefore should not have been quashed. There is error. Let this be certified to the superior court of Wilson that further proceedings may be had ip conformity to this opinion and the law.

Per Curiam. • • Error.

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84 N.C. 810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hines-nc-1881.

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