State v. Valere

The opinion of the Court was delivered by Fenner, J. The recoid teems with charges of error embodied in bills of exception, a motion for new trial and a motion in arrest of judgment, most of which require only the briefest mention. [1061] 1st. The indictment is assailed as insufficient in law because the endorsement thereon did not specify the offense charged and because the foreman of the grand jury signed simply as “ Foreman,” without adding the words “ of the grand jury.” The objections are frivolous. State vs. Mason, 32 Ann. 1019; State vs. Granville, 34 Ann. 1089. 2d. It is objected that the venire and indictment were not served two full days before the trial. The return of the sheriff showed the contrary, and it was not successfully contradicted. 3d. The copy of the indictment served is assailed as not a true copy, because certain words endorsed on the original were not contained on the copy. The omission charged was utterly immaterial. 32 Ann. 1019. 4th. Objections were raised to the method of summoning jurors de talibus, which have no force, and were sufficiently disposed of by the reasons given by the judge. 5th. Certain defects in the minutes of the court were assigned as ground of the motion in arrest, whereupon the judge ordered the minutes to be corrected so as to conform to the facts. This he had the right to do, whenever his attention was called to the errors. 6th. The claim that the accused was not present at all important proceedings on the trial, is not sustained. State vs. Price, 37 Ann. 215. 7th. Defendant offered in evidence a deposition of one of the State’s witnesses, taken before, a justice of the peace, for the purpose of contradicting the evidence given by the same witness on this trial. The judge refused the same, without proof of the signature of the witness, which was by cross-mark, holding that the attestation thereof by the justice of the peace did not afford authenticity, because said justice had no jurisdiction, ratione materice, to swear witnesses and take down depositions in a murder case, and his action was corcm nonjudice, and gave no effect to the declaration other than that of a private writing. The ruling was correct, and the reason sufficient. 8th. After the foregoing ruling, defendant offered to prove the signature of the justice of the peace by a witness in court or by a comparison of hand-writing, which the judge refused to permit, on the ground that the testimony of the justice himself was the best evidence. And then the defendant moved for a delay of ten hours in order to enable him to secure the presence of the justice. We fail to see what would have been accomplished by proving the signature of the justice; the matter requiring to be proved was the [1062] signature of the witness. As that signature was by cross-mark, the justice, who attested it, was no doubt the best witness; but the judge assigns sufficient reasons for not granting th i delay applied for, in the lack of diligence displayed by defendant, who, though aware of the necessity of offering this evidence from the time «lien the witness to be contradicted had testified, took no steps to secure the witness until long afterward when the trial was nearly completed. Defendant was presumed to know the law, and cannot avail himself of the plea of surprise by rulings of the court, which were legal and proper, and should have been anticipated. We have thus disposed of all the charges of error, none of which have the slightest merit. Judgment affirmed.