Cachute v. State

Simrall, J., delivered the opinion of the court: It is assigned for error first, that the record does not show that [169] the bid of indictment was presented to the court in the manner required by the statute. All prosecutions must be conducted in the name and by the authority of the state. The appointed mode to bring offenders against the law to trial in the circuit courts is, to make a specific charge against them, in an indictment preferred by a grand jury, and by it, returned into court. It becomes important, therefore, to prevent fraud and imposition upon the court, in the initiation of prosecutions without proper authority, that the records should show that the accusation was made by a grand jury constituted as the law provides, and that the bill of indictment was brought by it into court, received and filed and thereby made a record of the court. Both the minutes of the court and tbe indictment constitute the record of a-regular legal prosecution. The office of the former on the point we are considering, is to identify the indictment preferred by the grand jury, with the one upon which the arraignment, plea, trial, verdict and judgment were had. The authorities are that the indictment must be brought into court by the grand jury as a body, or through their foreman, accompanied by the other jurors, or the requisite number. And the record must show this affirmatively. The cases are numerous. Laura v. State, 26 Miss., 176; Friar v. State, 3 How., 423, 4; Goodwin v. State, 4 S. & M., 535. The amended transcript sent up íd response to the writ of certiorari shows a proper organization of the court and of the grand jury, at the October term, 1869, of the Harrison circuit court. The original transcript contains in the caption, only the organization of the court at that term. Then immediately follows this recital: “ Be it remembered, that heretofore, to wit, on the 22d of April, 1869, an indictment was filed in said court, in the words and figures following: having been returned into court by the grand jurors in and for said county at the April term thereof, 1869., Then follows a copy of the indictment and indorsements thereon. [170] The only evidence that the grand jury presented the indictment in court at the April term, 1869, is the recital of the clerk, made at the next succeeding term. But it is not competent for the clerk to certify, by way of recital, what transpired at a former term of the court. The proceedings of that term, as actually entered upon the records of the court, are the best and only evidence of what occurred in a particular case, with the single exception hereinafter referred to. If authority were needed on so plain a point, it is supplied by the case of McQuillen v. State, 8 S. & M., 596. The question then was, whether the defendant had been arraigned and plead. The •entry was in these words: “ This day came .the plaintiff, by F. Anderson, district attorney, and the defendant in his own proper person, and the defendant having been arraigned at the last term •of this court, and pleaded not guilty, etc.” “It was incompetent, says the court, for the clerk to make any entry of what had transpired at a former term. The consequence is that it does not legally appear that the accused was ever arraigned.” See .also Pond v. State, 47 Miss., 41. How is the question affected by §§ 2794 and 2795 of the Code of 1871. The former declares that all indictments must be presented to the„court by the foreman of the grand jury, * * in the presence of at least twelve of such jury, including the foreman. 'x' * The latter provides that “No entry of an indictment found shall be made on the minutes of the court, at the term at which the same is found, unless the defendant is in actual custody or on bail. * * But such entry may be made in the minutes of the court at any time after the appearance of the defendant.” The first section recognizes the ancient practice: that the minutes of the court must show that the bill of indictment was brought by tbe accusing grand jury into court. The second postpones such entry upon the minutes until the accused has been arrested and is either in custody or at large on bail or recogni [171] zance. The purpose was to keep the indictment secret until after the arrest. Manifestly the statute does not dispense with a record upoD the minutes of the fact, either at the term at which the indictment was found, or “at any time after the appearance of the accused,” as the circumstances may be. The defect in this transcript is, that it does not appear that an entry upon the minutes of the return of the indictment into court by the grand jury was ever made. If the accused was neither in custody nor on bail at the April term, when the indictment was found, then it would be proper to omit a notice on the minutes of that term, of the action of the grand jury. But at some subsequent term, “after the appearance of the defendant,” such an entry ought to have been made. The recital which we have quoted, introductory to the copy of of the indictment and the indorsements upon it, does not purport to be transcribed from the minutes of the court. In legal effect, the matter of it resided in the breast of the clerk, and there was no memorial of it on the record of the October term. To have satisfied the 2795th section, the minutes ought to have contained, at the October term, a statement of the style of the case, and then an entry that the grand jury, at the April term, had returned into court, and through their foreman presented the bill of indictment, which, with its endowments, is as follows, and that this entry'was not made at the April term, because the defendant was not then in custody, or under bail or recognizance. We do not present this as the form of the entry, but as setting forth what would be a substantial compliance with the law. The statute intends the indorsements upon the indictment and the date of its filing, as furnishing sufficient evidence to justify such an entry upon the minutes of the court at a subsequent term. There is not the sufficient and competent evidence demanded by the law, that the indictment upon which the plaintiff in error was tried, was returned into court by the grand jury at the April term, 1869. [172] The second assignment of error is also well made. It does not appear that the defendant was arraigned and pleaded to the indictment. This is absolutely necessary in cases of felony. McQuillen’s case, 8 S. & W, 596. The plea must be in person, and not by attorney ; if by attorney, it is no plea. Wilson v. State, 42 Miss., 641. The palpable and frequent defects in the record of this trial, suggest the repetition of the observation which we have more than once made, that it is a reproach to those connected with the administration of criminal justice in the circuit courts, that they do not see to it that proper entries are made upon the minutes of the court of those things in the history of the cause required by law. The judgment is reversed, and the indictment quashed.