nal trial; and they relied upon the language of the act, and its collocation in the Code, as showing that it had reference exclusively to proceedings in civil suits. The Attorney General, for the Commonwealth, took a distinction between felonies, which could only be prosecuted by indictment, and misdemeanors, which might be by indictment, presentment, or information. Code, ch. 207, § 1, p. 768. This distinction, he insisted, would authorize a different practice in these different classes of offences. In felony the prosecution must be on the oath of the grand jury; in misdemeanors it may be upon an information by an officer of the court; and this information may be amended at any time before trial. Chitty's Crim. Law 802. And he insisted that if there might be this change in the information, there was no substantial reason why in like cases it may not be in the indictment. 1 He considered the rights of the defendant before, during, and pending the trial, and insisted that they had all been secured to him; that up to and after his arraignment and pleading the indictment was in court, so that he knew the cause of his accusation; and though he was by the common law entitled to a copy of the indictment, he had waived it by pleading. 5 U. S. Dig., p. 154, § 244, R. M. Charlton's R. 142. After pleading he could not move to quash or demur to the indictment. And in respect to the offence for which this defendant was prosecuted, the statute forbids all objections for defects or want of form. Code, p. 770, § 11, 12; 772, § 23, 24. Upon the trial the right of the defendant was that the charge which had been made against him should be proved. True, the indictment was the best evidence of the charge; but, upon proof of its loss, might it not be supplied? A lost record may be supplied by proof. Phillips Evi., note 723, p. 1067; Newcomb v. Drum 4 1860. July Term. Bradshaw's Case. 1860. July Term. Bradshaw's Case. mond, 4 Leigh 57 ; Douglas' widow and adm'x v. Yallop, 2 Burr. R. 722; Rex v. Turner & als., 1 Strange's R. 139; Evans v. Thomas, 2 Id. 833; 1 Chitty's Crim. Law, 722 marg. In New York, Graham v. Woodhull, 1 Caine's R. 496; The People v. Burdock, 3 Id. 104. In Massachusetts, Inh. Stockbridge v. Inh. West Stockbridge, 12 Mass. R. 400; Fay v. Wenzell, 8 Cush. R. 315. In Alabama, Dozier v. Joyce, 8 Porter's R. 303; Williams v. Powell, 9 Id. 493; Wilkerson v. Branham, 5 Alab. 608; 8 Id. 298; 11 Id. 629; 19 Id. 710; 25 Id. 551; 2 Hayw. R. 243; Pleasants v. The State, 15 Ark. R. 624. Then, if the evidence was admissible, the question is as to the quantum and not the quality of the proof; and in this case there is no doubt the evidence is almost, if not entirely, in the language of the lost indictment. The only importance of the indictment after the trial is that the defendant might be able to plead autre foi acquit or convict, or move in arrest of judgment. But he was tried upon the evidence as to the indictment, and this is a part of the record. Beal v. Larigstaf, 2 Wils. R. 371; Perkins v. Perkins, 21 Georgia R. 13; Cawood's Case, 2 Va. Cas. And upon a motion to arrest the judgment, the evidence shows what the indictment was. The DANIEL, J. The question, upon the decision of which depends the judgment to be given in this case, is a nice and difficult one. It is res integra here; and the counsel on either side and the court, after diligent search, have failed to find any authority in the British reporters or text-books which would seem to rule it. only case cited at the bar in which the question has been fully discussed and distinctly adjudged is the case of Ganaway v. The State, 22 Alab. R. 772, relied on by the counsel of the plaintiff in error, in their printed argument. In that case, after several continuances of a prosecution for an assault and battery for which Ganaway had been indicted, the indictment was lost or destroyed, and the inferior court, upon the motion of the solicitor, after notice to the accused, allowed a paper, which was offered as, and proved to be, a correct copy of the original indictment, to be substituted in its stead, and proceeded with the trial upon the substituted copy. Upon an appeal to the Supreme Court the case was there ably argued, and the majority of the court came to the conclusion that the judgment of the Circuit court should be reversed. The grounds of their decision are very forcibly stated in the opinion of Judge Phelan. After conceding the right of the court to supply or substitute any part of the record which has been lost or destroyed in a civil case, he proceeds to remark that "in criminal proceedings we are, in many cases, bound by settled principles of law and practice, to consider not that which abstractly exists, but a certain visible external form, as essential to the legal existence and sufficiency of the thing itself. For instance, what authority in law [he asks] will protect an officer in arresting my person on a criminal charge, or require of me to submit. to the arrest? Will a copy of a warrant do? Not at all. It must be the original, lawful warrant itself, which I have a right to call for and inspect. This rule, we are inclined to think, has been commonly applied to indictments. The prisoner has been supposed to have a right to have an inspection of the indictment found, and to be arraigned on that only. "But conceding that a declaration and an indictment are alike in many respects, in some other respects there is a very marked difference between them. A declaration is a statement of his cause of action by the party himself or his counsel, not under oath. An indictment is a statement of the facts which constitute the alleged offence against the public, on the part of the 1860. July Term. Brad shaw's Case. 1860. July Term. Bradshaw's Case. accused, made under oath by a grand jury, and which, to be good in law, must have certain formalities; and by the Constitution of this State certain words are essential. The one is good even though it be not signed by counsel. The other is nothing if it does not bear the name of the foreman of the grand jury and the words 'A true bill.' These are indispensable marks of an indictment. The one may be changed at pleasure by leave of the court. The other cannot be changed or altered in the slightest degree by any power, after it has been returned into court and the grand jury is discharged. The statutes of jeofails, which in general terms authorize corrections and amendments in process and pleadings, have never been held to apply to indict ments. "It may be granted, the court has, and ought to have, power to supply copies or duplicates of all parts of the record or proceedings which emanated from it or under its authority in the first instance; because the power which could make the original ought to be at all times able to supply a copy, if that be lost or destroyed. But this power does not embrace an indictment. The court has no power to make an indictment or to direct one to be made; that power resides exclusively with the grand jury. Admitting, then, that a court may supply or substitute whatever part of the proceedings it has power to issue or create in the first instance, yet the principle will not embrace an indictment, because the court has no power to make that or direct it to be made. In the matter of indictments, the grand jury are the sole judges, under their oath, of the propriety of their own action." The judge also stated, in the course of his opinion, that, with the exception of a single circuit, the rule of practice forbidding the substitution of an indictment prevailed throughout the State. In the dissenting opinion, delivered by Judge Gibbons, the only case cited by him as an instance in which it had been held allowable to try a person indicted, upon a copy of the indictment, was the case of John, a slave, v. The State, 2 Alab. R. 290. In that case, it is true, it was held that where several persons are indicted, and the venue is changed by less than the whole number, those who change the venue are to be tried on a copy of the indictment. I have been unable, however, to discover anything in that case which countenances the proposition that an accused who has not obtained a change of venue may be tried against his consent upon any substitute for the original indictment. On the contrary, I think, the case looks the other way. There the venue had been changed at the instance of one of several persons indicted for a felony, and an order had been made sending not only a transcript of the record, but also the original indictment, to the court to which the venue was changed. Subsequently another order was made requiring the clerk of the last mentioned court. to return the original indictment; which was executed, and the party who had not obtained a change of venue was tried on the original indictment so returned, and convicted. And on his appeal it was insisted, in his behalf, that the prosecution had been discontinued and jurisdiction of the court over the case lost in consequence of the execution of the order directing the original indictment to be sent to the court to which the venue, as to one of the parties, had been changed. Goldthwaite, J., in delivering the opinion of the court sustaining the judgment of the court below, so far as it turned on the question arising upon the orders of the court below, above mentioned, remarked: "The presiding judge, at the time of permitting the change of venue as to Anderson, was probably misled by the generality of the rule of this court with respect to changes of venue. VOL. XVI.-36 1860. July Term. Brad shaw's Case. |