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Collins vs. The State of Florida—Opinion of Court.

truth of the bill so far as their evidence goes, they endorse on the back of the bill "a true bill," if not, they endorse it "not a true bill." 4 Black., 303, 5; 11 Cush., 475; 13 N. H. 489.

The endorsement "a true bill," is what is called by the court in Virginia the "finding," and in reference to which it is said, “after a grand jury has found a bill and reported it and their finding is placed on the record, the indictment so found and endorsed becomes as much a part of the record as if it was spread in extenso on the order book, but in order to give it that character we deem it essential that a record should be made of the finding in the order book. The difference in the requirement is thus manifest."

This decision in Virginia, not sustained by the other American cases, so far as the necessity for a special entry of the finding as distinct from record evidence of the fact that the indictment was delivered in open court by the grand jury is concerned, is urged in support of the propositions made by the plaintiff in error to the effect, first, that such a distinct entry of the finding upon the order book is necessary; and second, that the entry has been made in this case (omitting the words a true bill,) is not sufficient evidence of the finding, and hence insufficient to justify the arraignment of the prisoner. In addition to which, it is understood by the court that it is insisted by the plaintiff in error that the entry here made is not sufficient evidence of an accusation. against the defendant for the particular crime by the grand jury in open court.

We are of opinion that there is no necessity for the insertion upon the record of a special entry stating the finding of the grand jury, and that it is sufficient if upon the record there is enough to show a delivery of the indictment into court by the grand jury.

What is the reasoning of the court in Virginia upon which this conclusion as to the necessity for a special entry of the finding upon the order book is based? That court says we

Collins vs. The State of Florida—Opinion of Court.

consider this entry to be essential, because from the year 1776 to this period, (1826,) it has been the uniform practice of the general court and of the circuit court to record the findings of the grand jury as part of the proceedings of the court, and because the statute requires that the proceedings of the court should be regularly placed on the order book. It is conceded that in this State the like practice has prevailed, but it is not correct to say that every act of the grand jury must become a matter of record by way of special entry.

We are not prepared to say that because it may be the practice of the circuit court to add to such an entry as we have in this case the words "a true bill," that such an addition is esential. Because that practice may be to do more than the law requires, cannot enlarge the law. This court has prescribed no such rule; no statute has prescribed it; and it is nothing more than a customary entry. Nor do we see that an entry of the finding upon the minutes or upon any particular order book is the record of an act of the grand jury in open court, should it be admitted that all their acts in open court must be made a matter of record. We know of no authority in England or the United States which requires this act of finding to be done in open court. It is usually done in the grand jury room, where, after a vote, the foreman, acting for the requisite number to find a bill, so endorses it. The statute makes it his duty to make this endorsement when the grand jury agree to it, and the endorsement should be accepted as evidence of that fact, unless in the face of the statute prescribing what that endorsement shall show, you are to presume fraud and improper conduct upon the part of an officer and require positive evidence to rebut such created presumption. The reasons given in the case in Virginia for the necessity of a special entry of the finding are not only unsatisfactory, but the conclusion of the court in this respect is unsustained by any well considered case in the United States, by any decision in England, or by the

Collins vs. The State of Florida—Opinion of Court.

practice in making up the record there. A form of a record of an indictment and conviction for murder at the assizes in England is found in the appendix to the 4th volume of Blackstone, and it will be seen by reference to this extended record that the finding is not found in the record. The record brought by a writ of error to the Queen's Bench has no such thing in it. 3 Lord Raymond, 33. It cannot be doubted that such an endorsement by the foreman of the grand jury must appear upon the bill in the court below to justify the arraignment, as the statute, which is not simply directory, requires that "all indictments (by which is meant bills,) shall be endorsed on the back by the foreman of the grand jury when so found, ‘a true bill' and signed by him." Towle vs. The State, 3 Fla., 202; 13 S. & M., 259; 3 How., 433; 19 Miss., 226; 3 Dana, 474; 2 Bibb, 210; 10 B. Mon., 125.

But we know of no rule of law which requires that an extended record, which should be made up by reference to the docket entries and to these endorsements and like things, must contain all of these endorsements, or in this case the endorsement of the finding. All that is required of the extended record is, that what that record contains, shows, according to the accepted legal signification of the terms in which it is framed, that the grand jury presented to the court an indictment for the particular felony with which the party is charged.

Mr. Bishop in his work on Criminal Procedure, speaking of this matter of endorsements and docket entries, as distinguished from the extended record, says: "When an indictment is found by the grand jury, the foreman writes upon it words 'a true bill,' and signs it with his name as foreman. Now, there are plainly certain stages of the proceeding in which this endorsement upon the indictment is more or less material, yet in the record as finally made up and extended, this endorsement, according to the form given us by Blackstone, does not appear. The simple statement that ‘it is presented' so and so, covers all such things."

Collins vs. The State of Florida-Opinion of Court.

Pearson, J., in the State vs. Guilford, 4 Jones, N. C., 83, 85, says, "it is not necessary that the record should set out the manner in which a bill of indictment was presented, or the evidence and memoranda and entries from which the record was made up. It is sufficient and most proper that the record should only set out the fact that it was presented by the grand jury,” and it is there held that it is not necessary to copy into the record the entry of "a true bill," usual on the back of an indictment. In 2 Blackford, 153, the court remarks in reference to this endorsement on the bill, that a complete record, conclusive as to every material fact in the case, may be made up without it.

Having determined that a special entry in the record of the finding endorsed on the back of the indictment is not essential, it only remains to determine in this case whether it appeared from the entry made in the court below. and which entry now appears in the transcript of the extended record brought to this court by the writ of error, that the defendant was tried in accordance with the requirements of the Constitution, "on presentment and indictment by a grand jury." Sec. 8, Dec. of Rights, page 2 of Con. The language of the St. Joseph's Constitution under which the practice in this State arose was, "no person shall be put to answer any criminal charge but by presentment, indictment or impeachment," and the difference is that under the old Constitution the party might have been tried upon the presentment alone. while under the new Constitution there must be presentment and indictment.

The practice of trial upon presentment alone is illustrated in many cases. 13 East, 258; 9 Yerg.. 359; 23 Ga., 580; Va. cases, 18, 19, 161; 5 Leigh 743; 1 Swann, 22; 2 Bay, 209: 7 Gratt., 637; 1 Kelly, 245.

Does this record disclose that the requirement of the Constitution has been complied with? Was the defendant tried upon presentment and indictment by a grand jury? The entry in the record is, "the grand jury came into open court

Collins vs. The State of Florida-Opinion of Court.

and made the following presentment," viz: "State of Florida vs. James E. Collins-receiving stolen goods, knowing the same to have been stolen."

The indictment properly endorsed "a true bill," and signed by the State Attorney necessarily follows this entry iu the record in the court below. There is really no necessity for all of these entries to appear, as before remarked, in the extended record, but when they do appear as in this case and nothing else appears, we must give them a construction. It is evident from this entry that the grand jury came into open court and took some action in reference to a crime known to the laws of this State, to-wit: receiving stolen goods knowing the same to have been stolen-that this action concerned the State of Florida as plaintiff, and James E. Collins as defendant. The record describes their action. in reference to these subjects as a presentment. What then does this term imply? Does it or does it not necessarily mean in the connection in which it stands, an accusation? Is it consistent with its known meaning to infer that there was no accusation? If it does necessarily mean an accusation in the connection in which it stands and an indictment follows, spread out in extenso upon the record, then the necessary result of the evidence afforded by this record is that a grand jury came into into open court and presented an indictment against James E. Collins for the crime stated.

Presentment, in its limited sense, is a statement by the grand jury of an offence from their own knowledge, without any bill of indictment laid before them, setting forth the name of the party, place of abode, and the offence committed, informally, upon which the officer of the court afterwards frames an indictment. In Style's Prac. Reg'r, 267, it is said "a presentment may be in English, but an indictment ought to be in Latin or it would be quashed," and the difference between a presentment in this limited sense and an indictment is thus stated: "An indictment is drawn up

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