CHAPTER II.

Preferring, Finding, and Presentment.

In most cases, the district attorney, on being furnished with the particulars of the offence by the prosecutor, will draw the indictment. But in cases where more than ordinary care may be requisite in framing the indictment, it may be drawn by any other counsel. (a) The names of the witnesses intended to be examined before the grand jury should be endorsed on the indictment. (b)

Preferring.] The indictment is next taken by the district attorney to the grand jury, and preferred before them. But two indictments for the same offence, one for a felony under a statute, and another for a misdemeanor at common law, ought not to be preferred or found at the same time.(c)

The witnesses being called in, are examined (on oath) by the grand jury, or with their consent by the district attorney.() The grand jury should require the same evidence, written and parol, as may be necessary to support the indictment at the trial. They are not, however, usually very strict as to the documentary evidence; they often admit copies where the originals alone are evidence; and sometimes even evidence by parol of a matter which should be proved by written evidence. But as they may, and in general should, insist on the same strictness of proof as must be observed at the trial, it is prudent in all cases to be provided, at the time the bill is preferred, with the same evidence with which it is intended afterwards to support the indictment.(e)

It seems that the defendant has no right to have a counsel or attorney, or any person skilled in the law, present before the grand jury as an advocate on his behalf; it being only a preliminary investigation, and not conclusive on him.(ƒ)

(a) Arch. Cr. Pl. 63.

(b) Id. ib. Russ. & Ry. C. C. 401.

(c) 1 Leach, 538.

(d) 3 Chit. Burn, 354. Matt. Dig.

(e) Arch. Cr. Pl. 63.

(f) 1 Barn. & Cress. 37, 51. 10 id. 237.

The statute provides, that a person held to answer to any criminal charge may object to the competency of any one summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution, and has been subpoenaed or bound in a recognizance as such; and if such objection be established, the person so summoned shall be set aside.(g) But no challenge to the array of grand jurors, or to any person summoned to serve as a grand juror, shall be allowed in any other cases.(h)

The court, however, would doubtless have the power, of its own accord, to set aside a person returned as a grand juror, against whom a complaint for a criminal offence was intended to be preferred before the grand jury.

And neither the prosecutor or a witness in support of the prosecution, if he happens to be a member of the grand jury, should be permitted to vote on the question of finding an indictment, or be present when the vote is taken.

Subpoenas for witnesses in support of any prosecution may be issued and signed by the district attorney, without the seal of the court. And the attendance of such witnesses may be compelled in the same manner as in civil causes. (i)

Finding.] After the evidence has been gone into, if a majority, (at least twelve) of the grand jury consider the charge sufficiently proved, their clerk (or the foreman) will endorse on the indictment "a true bill;"(k) but if they consider otherwise, then, "no true bill," or "not found."(7) It seems agreed, that the grand jury may not find part of an indictment to be true and part false; but must either find a true bill, or ignoramus for the whole; and if they take upon themselves to find it specially or conditionally, or to be true for part only, and not for the rest, the whole is void, and the party cannot be tried upon it, but ought to be indicted anew.(m)

But where there are two counts in the indictment, as one for a riot, and another for an assault, the same may be considered as two distinct indictments, and the jury may affirm the bill as to one, and reject it as to the other.(n) And where a bill is presented for murder, they may find a true bill for manslaughter only. (o) But upon an indictment for murder

(g) 2 R. S. 724, § 27.
(h) Id. ib. § 28.
(i) Id. 729, § 63, 64.
(k) Id. 726, § 36.

(1) Arch. Cr. Pl. 64. Matt. Dig. 281. (m) 2 Hawk. ch. 25, s. 2. Yelv. 50.

(n) 1 Cowp. 325.

(0) 3 Chit. Burn, 355.

against A. and B., they cannot find a true bill against A., and as to B. manslaugter only ;(p) for if it were murder in A., it could not be merely manslaughter in B. They might, however, find a true bill as to A., and ignoramus as to B.(q) So, upon an indictment for murder, they cannot find "a true bill, se defendendo;(r)" for the offence charged is a felonythe offence found is not. (s)

If the bill be not found, or if the indictment be defective, a new and more regular one may be framed and sent to the same or another grand jury;(t) or the court may order it to be quashed and another preferred. The mere insufficiency, therefore, of the finding, affords no future indemnity to the party indicted.(u)

If a bill be thrown out, (upon the merits,) it cannot be preferred again to the same grand jury during the same assizes or sessions; but it may be preferred at the next sessions, if no time be limited for preferring it, or if such time has not elapsed. (v)

In what courts indictments may be found.] In this state, indictments can only be found in courts of oyer and terminer and general sessions of the peace,(w) and in the mayor's court of the city of Albany.(x) And these provisions of the statute extend to indictments for all offences committed or triable in the county in which the court is held. (y) The mayor's court of the city of Albany, however, only has jurisdiction over crimes and misdemeanors arising within the city of Albany.(z).

Receivers of stolen goods may be indicted and tried in any county where they received or had such property; notwithstanding the theft was committed in another county.(a)

Within what time indictments must be found.] The revised statutes provide, that indictments for murder may be found at any time after the death of the person killed. In all other cases, indictments must be found and filed in the proper court within three years after the commission of the offence. But the time during which the defendant shall not have been an inhabitant of, or usually resident within this state, shall not constitute any part of the limitation of three years.(b)

Finding two indictments for same matter.] By the revised statutes it is also provided, that if there be at any time pending against the same defendant two indictments for the same offence; or two indictments for

the same matter, although charged as different offences, the indictment. first found shall be deemed to be superseded by such second indictment, and shall be quashed. (c)

The supreme court have decided, under this section of the statute, that a previous indictment for the same offence is no bar to a second indictment, although upon the first the defendant has been arraigned and has pleaded.(d) It has also been decided, that after a conviction, an indictment will not be quashed on the ground that, during the pendency of the trial, a second indictment for the same offence was found by the grand jury.(e) The mere finding of a second indictment is not, per se, a supersedeas to the first indictment. A motion to quash must be made, and made too before the trial on the first indictment has commenced. At all event, before the cause is submitted to the jury.(f) Nor is an indictment for forging a check on a bank in the name of A. B., superseded by an indictment subsequently found charging the same party with personating A. B., and in such assumed character receiving a sum of money, although the money be alleged to have been received from the same individual alleged in the first indictment to have been defrauded by means of the check, and the amount thereof corresponds with the sum received by means of the check.(g)

A similar rule as regards a plurality of indictments exists at common law. Thus where several indictments for misdemeanors are found, being substantially for the same offence, the court will compel the prosecutor to elect one and abandon the others. (h)

Presentment.] Indictments found by a grand jury must be presented by their foreman, in their presence, to the court, and shall be there filed and remain as public records; but such as are found against any person for a felony, not being in actual confinement, shall not be open to the inspection of any person except the district attorney, until the defendants therein respectively shall have been arrested. (i) And any person disclosing the fact of such indictment having been found against a person for a felony, not in actual confinement, is to be deemed guilty of a misdemeanor.(k)

(c) 2 R. S. 726, § 42.

(d) 14 Wend. 9. See also 2 Hawk. ch.

34, § 1.

(e) 20 Wend. 108. (ƒ) Id. ib.

(g) 12 Wend. 425.
(h) 2 Moo. & Rob. 297.
(i) 2 R. S. 726, § 38.
(k) Id. ib. § 39, 40.

CHAPTER III.

General requisites of an Indictment.

1st. It must be certain. The indictment should be framed with sufficient certainty to identify the offence, lest the grand jury find a bill for one offence, and the defendant be tried for another; also, that the prisoner may know what accusation he has to answer-that the jury may be able to deliver a verdict upon it-that the court may be able to give judgment and award the punishment which the law prescribes; also, that the prisoner may plead his conviction or acquittal in bar of subsequent proceedings for the same offence. (a)

The degree of certainty must be as great as the case will admit.(b) The charge must be special; therefore, to say a common highwayman, defamer, disturber of the peace, &c. is not good. (c) Nor to say divers scandalous, threatening, and contemptuous words; for the words ought to be set forth.(d) But there are some excepted cases, as on a charge of being a common scold, barrator, keeper of a common bawdy house, &c.(e) It ought to be as certain as a declaration; for all rules in civil pleadings apply to criminal accusations. (f) Therefore, if the indictment apply to either of two different definite offences, and does not specify which, it is bad (g) for it ought to be certain to every intent, without intendment to the contrary. (h) But mere matter of inducement does not require so much certainty as the gist of the offence.(i)

2d. It must be explicit. So the charge must be sufficiently explicit to support itself; for nothing more can be included in it than is expressed.(k)

(a) Matt. Dig. 266. Cowp. 682, 683. 5 T. R. 611, 623. 2 id. 586. 1 Leach, 429. 2 Maule & Selw. 386.

(b) 1 Chit. Rep. 698. 2 Barn. & Ald. 204.

(c) 2 Hale, 182.

(d) 2 Stra. 699.

(e) 2 Hawk. P. C. ch. 25, s. 57, 59.

(f) 2 Stra. 904.

(g) Ry. & Moo. C. C. 158.
(h) Cro. Eliz. 490.

(i) 1 Ventr. 170. Com. Dig. Indictment, (G. 5).

(k) 2 Burr. 1127. 2 Maule & Selw. 381. 5 Barn, & Cress. 246.