State v. Cain, 8 N.C. 352, 1 Hawks 352 (1821)

June 1821 · Supreme Court of North Carolina

8 N.C. 352, 1 Hawks 352

State v. Cain & Price.

From Martin.

When a bill is found by the same Grand Jury that made the presentment upon the testimony of some of their own body, not sworn in Court as witnesses, such proceeding is in opposition to the act of 1797, ch. 2, sec. 3, and the bill must be quashed.

This was an indictment under the act of Assembly against fornication and adultery, and was founded upon a presentment of the Grand Jury. The bill was found by the same Jury that made the presentment upon the testimony, of some of their own body, none of whom were sworn in Court as witnesses. These facts were admitted hy the prosecuting officer, and the Court, on motion, Quashed the bill. The prosecuting ^officer appealed to this Court. ■

The case was argued by the Attorney General for'the State.

Hair, Judge.

The act of 1797, ch. 2, sec. 3, declares “that no person shall be arrested, or charged before any Court, on a presentment made by a Grand Jury, before the attorney acting for tiie State shall prepare a bill, and the bill be found by the Grand Jury to be a true bill.” It is the province of the Grand Jury to make presentments from the knowledge of any one of their own body, or from the testimony of any witness who may give evidence before them, having been sworn in Court, and sent to them by the Court, if they think fit no to do : and I think the proper construction of the act is, that on every presentment that is made, a bill of indictment shall be framed, and the witnesses in support of the bill shall be sworn in Court, and sent to the Grand Jury — that they shall be examined de novo, and the Grand Jury shall find the bill a true bill or not, as they shall judge right from that examination, without regard to any information they might have been possessed of, when they made the presentment. I think this is the true construction of the act. If so, the bill in question, it is admitted by the attorney for the State, was not so found, and for that reason ought to be set aside as a nullity, and judgment entered for the Defendants.

Tayuor, Chief-Justice, and Henderso.y. Judge, concurred.