State v. Williams

This court cannot revise a point or question not appearing by the record to have been decided in the court below. The practice of quashing indictments after the jury is sworn obtains in most of the courts of this State. Where the indictment is bad and no valid judgment of guilty can be entered upon the finding of the jury, it is a mistrial and not such a trial as to preclude another.

Error to the Circuit Court for Charles county. The defendant in error was indicted for the forgery of a constable’s bond, and pleaded non cul. After the jury was sworn the State’s attorney moved to quash the indictment, which the court, (Crain, J.,) refused to do, and the traverser was acquitted. The case was brought up by writ of error, sued out by the State. On the bond was the following endorsement: “Approved by the commissioners of Charles Co., this 8th day of July 1851. — Test, James McCormac, clerk.” In the progress of the trial the defendant’s counsel raised the objection that it was not averred in the indictment that this approval was on the bond, and the court sustained the objection and gave its ruling to that effect, whereupon the verdict was rendered for the prisoner. After the above ruling, and while the trial was in progress, the prosecution moved to quash the indictment, so as to have a new one found, but this motion was overruled by the court. Two questions are presented: — 1st. Whether the State had the right to quash, and whether the court did not err in refusing to do so? and 2nd. Whether the court did not err in sustaining the objection taken by the defendant’s counsel? 1st. The Slate had a right to quash at any time before final verdict. It is a sovereign remedy of which it cannot be deprived, and indispensable to the administration of criminal justice. Archbold's Criminal Pleading and Evidence, 79, 80. Wharton’s Criminal Law, 132. Roscoe’s Criminal Evidence, 233. Tidd’s Practice, 818. These authorities all show, that the application to quash may be made on the part of the prosecution at any time before the defendant has been actually tried. 2nd. The endorsement of approval is on the original bond, which was subject to the inspection of the grand jury, filed with the indictment, subject to the inspection of the court below, the counsel and the jury, and was a part of the record in the case, and ought to be equally subject to the inspection of this court. Anything occurring in the proceeding or execution of a suit may be reviewed upon writ of error. Evans’ Pr., 424, 428. Williams’ Saunders, 100, 101, note a. Tidd’s Practice, 1134, 1142. The language of the writ is broad enough to comprehend the bond, and it is proper that it should be brought into this court for inspection and comparison. 3rd. It was not necessary to aver that there was an endorsement of approval. The offence is consummated by the false making of the instrument with intent to defraud without any uttering. Wharton’s Criminal Law, 335. It was unnecessary to aver that the bond was approved. Wharton’s Criminal Law, 346. Chitty’s Criminal Law, 1037, 1040. 4th. This is an official bond, and it is important that the law should be settled. 5 H. & J., 330, State vs. Buchanan. If the indictment was good without averring the endorsement, the court was right in overruling the motion to quash, but if the indictment was defective in not averring the approval, the court ought to have quashed it, so as to have had a new one.