MASSACHUSETTS SUPREME JUDICIAL COURT. COMMONWEALTH of Massachusetts v. Morris A. HAYDEN. (.......Mass.........) 1. That a person exempt from jury duty serves as a grand juror does not render the action of the jury in finding an indictment void. 2. That one of the grand jurors is one of the witnesses upon whose testimony an NOTE.-Competency of evidence before grand jury. I. Confessions, admissions, and refusal to testify. a. Accused. b. Accomplices and joint defendants. II. Evidence of criminals. III. Depositions and affidavits. IV. Documents. V. Minutes. VI. Swearing of witnesses. VII. Witnesses generally. VIII. Prosecutor. IX. Wife as witness. X. Hearing witnesses in open court. XI. Indictment on evidence partly incompetent. XIII. Evidence generally. XV. Time. indictment is found will not render the indictment void. 3. A motion to dismiss an indictment cannot be based on facts not appearing on the record. 4. One with whom a person is alleged to have unlawfully intermarried while having a wife living is competent to testify to the fact of the marriage which is alleged to be unlawful. 5. A record of marriage attested by an assistant registrar is admissible in evi ¡ evidence upon which the indictment was found was a confession by the accused. People v. King, 28 Cal. 265 (mo. qu.); State v. Donelon, 45 La. Ann. 744 (mo. qu.); Mackin v. People, 115 Ill. 312, 56 Am. Rep. 167 (obj.): Com. v. Taylor, 12 Pa. Co. Ct. Rep. 326 (ev.); Mencheea v. State (Tex.) Oct. 20, 1894 (mo. qu.); United States v. Kirkwood, 5 Utah, 123 (ev.); People v. Lauder, 82 Mich. 109 (mo. qu.). So even where a statute exempts a witness in a gambling case from all prosecutions against himself for his testimony therein, if he makes a voluntary statement against another in a robbery case, but thereby implicates himself in a gambling case, an indictment may be found against him on such evidence. People v. Reggel, 8 Utah, 21 (mo. new tr.). So where the accused had appeared before the grand jury and gave evidence against another, charging him with murder, such evidence cannot be called a confession and what he said may be the basis of an indictment against himself. State v. Broughton, 29 N. C. 96, 45 Am. Dec. 507 (obj. to ev.; mo. new tr.). Where the grand jurors may act on their own Indictments are valid if based on voluntary confessions of the accused, but if the accused was compelled to testify, or the confession was extorted by hope or fear, the indictment is invalid, and as to indictments obtained through confessions of an accomplice there is some conflict of author-knowledge and bias or prejudice is no objection, ity. It is not a valid objection that indictments were based on evidence of criminals. Under 11 and 12 Vict., chap. 42, § 17, depositious may be used before the grand jury if the witness is too ill to attend and due notice of taking is given. Documentary evidence before the grand jury must be clearly competent or it may vitiate the indictment. In Iowa a grand jury may indict on minutes of the committing magistrate. an indictment found by the grand jury is valid, although one of the members before their meeting secreted himself in a room with an officer and beard the accused admit his crime. Com. v. Woodward, 157 Mass. 516 (pl. abate.). See also the main case, COM. V. HAYDEN (Mass.) There are some cases that sustain indictments based upon defendants' confessions where the objection was not raised in the proper manner or The foreman of the grand jury is authorized by was made too late and turned upon a question of statutes generally to administer the oath to wit-pleading and practice. People v. Northey, 77 Cal. ness. The mode of giving the oath before the grand jury will not be inquired into by evidence of the grand jurors, but if it appears that the oath given to witness was insufficient this may validate. If the grand jury could not administer the oath to witnesses not listed, the indictment is invalidif properly objected to. If the prosecuting witness is incompetent to testify or prosecute, the indictment will be invalid if objected to in time. Where statutes allow husband or wife to testify against the other in sexual crimes, the indictment on such evidence will be sustained. It is improper to have the witnesses examined in open court, although this was done in the Earl of Bhaftesbury Case, infra. 618 mo. set aside); Pointer v. State, 89 Ind. 255 (pl. abate.); Owens v. State, 2 Head, 455 (mo. qu.); State v Burlingham, 15 Me. 104 (mo. qu.); United States v. Brown, 1 Sawy. 531. And a defendant cannot claim that his reports of monthly sales of liquor filed as required by statute as public record, upon which an indictment was found, was compulsory crimination of himself. State v. Smith, 74 Iowa, 580 (mo. set aside). The minutes of the testimony taken before the grand jury cannot be used by the defendant to show that he was under the influence of threats and promises when making certain alleged statements and confessions. State v. Ostrander, 18 Iowa, 435 (ev.). An inspection of the evidence before the grand jury will be denied if the court had the power to If part only of the evidence is incompetent, the make it, where the indictment was found mainly on indictment will be sustained. I. Confessions, admissions, and refusal to testify. a. Accused. An indictment will not be invalid because it is found upon voluntary confessions made by the accused before the grand Jury or upon admissions made by him in a civil case, or because part of the the confession made by the accused to a witness examined before the grand jury and there is no necessity shown for an inspection of the evidence. People v. Jaehne, 4 N. Y. Crim. Rep. 161 (mo. to inspect). The refusal to allow proof by grand jurors that the vidence of a witness given before them as to defendant's confession was different from that on dence under statutes making such records made by town clerks admissible, providing for registrars in certain places to whom the statutes relative to clerks shall be applicable, and permitting them to appoint assistants whose attestations shall be of the same effect as the registrars. 6. Circumstantial or presumptive proof of authority to solemnize a marriage admissible under Pub. Stat., chap. 145, § 31, is shown by testimony of the one claiming authority that he is an ordained minister and pastor of a certain church. 7. The fact that at the time one accused of polygamy contracted his alleged polygamous marriage, he had a bona fide and reasonable belief that his former the trial, was proper. Little v. Com. 25 Gratt. 930 | Leach, C. C. 155 (case 85) (pl. abate.); State v. Wol(ev.). cott, 21 Conn. 272 (mo. ar.). That a person may have been required to testify before a grand jury on another charge on matters that would be material to this charge is not cause to set aside the indictment unless it appears from the indorsement on the indictment that it was found in whole or in part on his evidence. State v. Hawks, 56 Minn. 129 (mo. qu.). But in State v. Krider, 78 N. C. 481 (mo. ar.), where there were two defendants and an indictment was found by examining each before the grand jury against the other, it was held that in the absence of any statute it could not be permitted and the indictment was held invalid. And in United States v. Farrington, 5 Fed. Rep. 343 (mo. qu.), where an attorney read to the grand jury the evidence of a defendant L, who was examined as a witness compulsorily before the com competent evidence was blended with the competent evidence, the indictment was quashed. And where the defendant was compelled to testify before the grand jury, or confessions were obtained from him by hope inspired by assurances of Immunity, and such confessions caused the indict-missioner against this defendant F, and the inment, the same is invalid as no one can be compelled in a criminal case to be a witness against bimself. State v. Froiseth, 16 Minn. 296 (mo. set aside); Corley v. State, 50 Ark. 305 (ev.); United States v. Charles, 2 Cranch, C. C. 76 (ev.; mo. new tr.); People v. Haines, 6 N. Y. Crim. Rep. 103 (mo. set aside); Boone v. People, 148 Ill. 440 (mo. qu.). Under Texas Penal Code, article 367, providing for exemption from prosecution on evidence revealed by the accused before the grand jury, a party so testifying cannot thereafter be convicted on such evidence. Elliott v. State (Tex.) April 23, 1892 (new tr.). Where several were indicted for murder on an objection made to the testimony of H, on the ground that while confined in jail for the murder of B, he was taken to the grand jury room without the order of court, and upon his evidence the indictment was returned, it was held that an accomplice was not incompetent, but that a conviction could not be had upon his evidence uncorroborated. Wright v. State, 43 Tex. 170 (ev.). II. Evidence of criminals. And in People v. Singer, 18 Abb. N. C. 96, 5 N. Y. Under N. Y. Penal Code, § 314, providing that a Crim. Rep. 2 (mo. qu.), where the accused was re- person convicted of felony is a competent witness, quired to appear before the grand jury and answer an indictment may be found on his evidence. Peoquestions, although she was cautioned by the dis-ple v. Stokes, 30 Abb. N. C. 200 (dem.; mo. dismiss). trict attorney that she need not criminate herself, And Ky. Crim. Code, § 107, providing that a grand it was held that the indictment should be quashed, as N. Y. Const., art. 1, § 6, provides that no person should be compelled in any criminal case to be a witness against himself. Under N. Y. Penal Code, § 79, providing that in a bribery case a person testifying to giving a bribe is not liable to an indictment, where the grand Jury indicted a witness on evidence disclosed before them, of having given money to police commissioners, the indictment should be dismissed. People v. Spencer, 66 Hun, 149 (obj.). The surgeon attending a duel cannot be compelled to testify where such testimony would tend to criminate the witness, where he claims his privilege. Cullen v. Com. 24 Gratt. 624 (ev.). jury cannot receive any but legal evidence, is only directory; and Ky. Civil Code, § 606, providing that a convict shall not testify, does not apply in criminal cases, and an indictment may be based on the evidence of a convict. Com. v. Minor, 89 Ky. 555 (mo. set. aside). And in King v. Earl of Shaftesbury, 8 How. St. Tr. 759, 771, 774, 775, 780, 781, the court refused to allow the grand jury to prosecute the inquiry as to the witnesses before them having been criminals. The state will not be required to furnish a bill of particulars as to the residence of the witnesses for The prosecution in order to allow the defendant to ascertain their credibility. Com. v. Applegate, 1 Pa. Dist. Rep. 127 (bill part.). But in Respublica v. Shaffer, 1 U. S. 1 Dall. 236, 1: L. ed. 116 (instruct. to gr. jur.), it was said that In State v. Clifford, 86 Iowa, 550 (ev.), it was said that the grand jury have no right to compel the defendant in custody and charged with the crime"diligent inquiry" means diligently to inquire into inquired about, to give testimony before them. A statement so procured is not voluntary. The fact that the accused was brought into court In the presence of the grand jury hand-cuffed, and that they may there have seen him thus secured, was not ground for new trial. Com. v. Weber, 167 Pa. 153 (mo. new tr.). the circumstances of the charge and credibility of the witness who supports it and from the wholelecide whether the person accused shall be put upon trial. III. Depositions and affidavits. Under 11 & 12 Vict., chap. 42, § 17, providing that deposition may be read on trial, where the witess is dead, or too ill to be present; such deposib. Accomplices and joint defendants. in may be read before the grand jury where due Some cases bold that an indictment based upon otice was given of the taking and the witness is evidence of an accomplice will be valid. State v. oo ill to attend. Reg. v. Clements, 2 Den. C. C. 251, Frizell, 111 N. C. 722 (mo. qu.); King v. Dodd, 15 Cox, C. C. 191, Temp. & M. 579, 20 L. J. M. C. 193, 15 Barker, J., delivered the opinion of the | because one of the grand jurors appeared as a court: 1. Special police officers are not exempt from service as grand jurors. Pub. Stat. chap. 170, § 2. Nor does the fact that a juror is exempt absolutely disqualify bim from service. He may be excused at his own election, or may be excepted to by any party; but, if he serves, the action of the grand jury or traverse jury is not made void. Munroe v. Brigham, 19 Pick. 368. See also Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258; Moebs v. Wolffsohn, 143 Mass. 130. 2. There is neither authority nor reason for the contention that the indictment was void Jur. 407 (ev.); Reg. v. Wilson, 12 Cox, C. C. 622 (ev.); Reg. v. Gerrans, 34 L. T. N. S. 145, 13 Cox, C. C. 158 (ev.); Reg. v. Hughes, 12 Cox, C. C. 623, note (ev.); Reg. v. Beaver, 10 Cox, C. C. 274 (ev.). In Reg. v. Bullard, 12 Cox, C. C. 353, 14 Moak, Eng. Rep. 603 (ev.), it was held that the grand jury could use a deposition of an absent witness without any showing of inability to be present, and the court said they were a secret tribunal and might lay by the heels in jail the most powerful man in the kingdom by finding a bill against him, and for that purpose might even read a paragraph from a newspaper. (But see next case.) Affidavits before a magistrate not in the presence of the accused cannot be used before a grand jury in the absence of the witnesses, the court refusing to follow. Reg. v. Bullard, supra; Reg. v. Carbray, 13 Q. L. R. 100, 2 B. 1887 (mo. for use of ev.). So the deposition of an absent witness was held not admissible before the grand jury without medical evidence of his illness, and the fact that the witness was in bed and had his head shaved was not sufficient. Reg. v. Philips, 1 Fost. & F. 105 (ev.). Where a witness refused to testify in a case of rape the grand jury were not allowed to use her deposition taken before the magistrate on the ground that a deposition could only be used in case of death or illness preventing ability to travel. Reg. v. Rendle, 11 Cox, C. C. 209 (ev.). And a grand jury was not allowed to use the deposition of a witness taken before a magistrate, although they suspected he had been tampered with, as they should only use the best evidence. Denby's Case, 1 Leach, C. C. 514 (ev.). But an indictment should not be set aside because depositions were used in the grand jury room where the deponents with others also testifiled before the grand jury. State v. Schieler (Idaho) April 20, 1894 (mo. set aside). In Beal v. State, 15 Ind. 378 (instr.), it was said that grand jurors cannot use depositions of witnesses who are in other states, as this is beyond their jurisdiction. And depositions taken before the magistrate should not be examined as to evidence of guilt after an indictment has been found though the minutes of the grand jury may be examined if they are in court. People v. Dixon, 8 Abb. Pr. 395 (mo. bail.). IV. Documents. Where the government officer improperly used papers before the grand jury, and as to the use of these papers the testimony was conflicting, incomplete and unsatisfactory, a motion to quash should be sustained. United States v. Kilpatrick, 16 Fed. Rep. 765, 4 Crim. L. Mag. 692 (mo. qu.). And in United States v. Reed, 2 Blatchf. 435, 461 (mo. qu.), it was said that the court will inquire as to the manner of authenticating documents to be used before the grand jury. But written statements of facts received by the witness before the grand jury of which he was a member at the same sitting of the court at which the indictment was presented. A grand jury may properly act upon the personal knowledge of any of its members, communicated to his fellows under no other sanction than the grand juror's oath. Com. v. Woodward, 157 Mass. 516. And there is no impropriety or wrong to the accused in having a grand juror, who has personal knowledge as to matters inquired of by his grand jury, sworn, and testify as a witness. Indeed, there may, under our practice, be some incidental benefit to the accused in that course, as in that grand jury from witnesses personally appearing before them were held insufficient to invalidate an indictment. State v. Boyd, 2 Hill, L. pt. 2, p. 288, 27 Am. Dec. 376 (mo. qu.) V. Minutes. The Iowa Code, sections 4273, 4289, provide that an indetment may be found upon the minutes given before the committing magistrate and such indictment will be valid. State v. Cook (Iowa) Dec. 12, 1894 (ev.); State v. Rodman, 61 Iowa, 456 (obj. ev.). And such indictment is valid although the stenographer who acted for the magistrate was not sworn. State v. Wise. 83 Iowa, 596 (ev.). In State v. Guilford, 49 N. C. 83 (mo. ar.), it was said that the record need not set out the evidence and memoranda on which a bill was presented. VI. Swearing of witnesses. The court has no power to inquire of the grand Jurymen as to how the oath was administered. Morrison v. State, 41 Tex. 516 (pl. abate.); Turner v. State, 57 Ga. 107 (mo. new tr.); Simms v. State, 60 Ga. 145 (pl. abate.). And in Reg. v. Russell, Car. & M. 246 (obj. ev.), it was said that an improper mode will not vitiate. Under Gould's Ark. Dig., chap. 52, § 68, providing that the foreman may administer the oath, where the oath as shown by the indictment was that the defendant was duly sworn to speak the truth concerning all legal questions as might be ascertained by the said G., foreman," this was held sufficient in an indictment for perjury. State v. Green, 24 Ark. 591 (mo. ar.). But where the oath of the witness was to testify concerning such matters as should be inquired of them by the grand jury, omitting "to speak the truth, the whole truth, and nothing but the truth," the indictment should be quashed. Ashburn v. State, 15 Ga. 246 (pl. abate.). Where an indictment or presentment is found upon evidence of a witness not duly sworn or sworn by persons not authorized, it is invalid. Joyner v. State, 78 Ala. 448 (mo. qu.); United States V. Coolidge, 2 Gall. 364 (mo. qu.); State v. Barnes, 52 N. C. 20 (pl. abate.); State v. Love, 4 Humph. 255 (pl. abate.); Middlesex Special Commission, 6 Car. & P. 90 (charge). And the same was said to be the rule in People v. Naughton, 38 How. Pr. 430 (mo. for use of min.); Re Lester, 77 Ga. 143 (contempt); Com. v. Price, 4 Kulp, 289, 3 Pa. Co. Ct. 175 (mo. qu.). And Rex v. Bitton, 6 Car. & P. 92 (refusal to plead), shows that an indictment was set aside which was found on testimony of a witness not duly sworn. Where the witness was too young and lacked intelligence to understand the application of an oath, the court refused to allow the grand jury to hear his testimony. State v. Doherty, 2 Overt. (Tenn.) 80 (ev.). And under Ga. Acts 1857, p. 100, witnesses were case his name will be found in the list of witnesses which is to be filed of record by the clerk. Pub. Stat. chap. 213, § 9. 3. The motion to dismiss, by which alone the two questions above considered were raised, must also have been overruled, for the technical reason that neither of the facts alleged in it as avoiding the indictment appeared upon the record of the cause, and so could not be availed of by a motion to dismiss. Com. v. Fredericks, 119 Mass. 199, 204, and cases cited. 4. As the writing purporting to be a letter written and signed by the defendant was identified as his bandwriting, it was competent evidence against him. Stone v. Sanborn, 104 allowed to be sworn before the grand jury. Dan-| forth v. State, 75 Ga. 614, 58 Am. Rep. 480 (pl. abate.). In State v. Cain, 8 N. C. 352, the North Carolina Act of 1797, chap. 2, § 3, providing that "no person shall be arrested or charged before any court on a presentment made by a grand jury before the attorney acting for the state shall prepare a bill and the bill be found by the grand jury to be a true bill" is construed to require that the witnesses in support of a bill shall be sworn in open court and sent to the grand jury, and while the grand jury may make presentments on their own knowledge they cannot find a bill of indictment without the evidence of witnesses thus sworn in open court. And North Carolina Act 1797, providing for swearing of witnesses in open court, was not repealed by Act of 1879, chap. 12, providing for swearing witnesses by the foreman, so an objection that witnesses were sworn in open court is invalid. State v. Allen, 83 N. C. 680 (mo. ar.); State v. White, 88 N. C. 698 (mo. qu.). So in South Carolina an indictment must be quashed if the witnesses are not sworn in open court as required by common law in absence of statute. State v. Kilcrease, 6 S. C. N. S. 444 (mo. qu.). And in State v. Fasset, 16 Conn. 457 (mo. qu.), it was held that the swearing of witnesses by the magistrate in the grand jury room will not invalidate an indictment. In Jetton v. State, Meigs, 192 (mo. qu.), it was said that if the witness was sworn while court was open, although the mayor and aldermen were not on the bench or before the witness, the swearing was sufficient. Where the record did not show that the witnesses that were sent to the grand jury were sworn, it was held that the court no doubt knew they were sworn and that it was not the practice to record such fact. King v. State, 5 How. (Miss.) 730 (obj.). And it will be presumed in such a case that they were sworn. State v. McEntire, 2 N. C. Law Repos. 287 (mo. ar.). And under Ohio Crim. Code, section 75, providing for swearing of witness by the clerk, the absence of certificate of such fact will not be a good plea in abatement. Duke v. State, 20 Ohio St. 225 (pl. abate.). And a motion in arrest is not the proper way of objecting that it does not appear that the witnesses were not sworn in court. State v. Roberts, 19 N. C. 540 (mo. ar.); State v. Harwood, 60 N. C. 228 (obj.); Gilman v. State. 1 Humph. 59 (mo. ar.); State v. Lanier, 90 N. C. 714 (mo. ar.). And in State v. Hines, 84 N. C. 810 (mo. qu.), it was held that an objection to an indictment that was found upon witnesses not sworn could not be taken advantage of by a motion in arrest. But in State v. Cain, 8 N. C. 352 (mo. qu.), it was admitted by the prosecuting officer that they were not sworn in court, and the indictment was held invalid. Mass. 319, 324, 6 Am. Rep. 238; Wiggin v. Boston & A. R. Co. 120 Mass. 201. 5. The testimony of the woman with whom the defendant was accused of having unlawfully intermarried while his former wife was living was competent to prove the unlawful marriage. The testimony of witnesses present at a marriage is competent to prove it (Com. v. Norcross, 9 Mass. 492; Com. v. Littlejohn, 15 Mass. 163); and this must be held to include the testimony of either of the contracting par ties. 6. The attested copy of the record of the marriage of the defendant to Annie Dllon, from the records of the city registrar of Boston, So a plea in abatement that witnesses were not sworn properly is insufficient, unless it is specific and particular. Reich v. State, 53 Ga. 73, 21 Am. Rep. 265 (pl. abate.); O'Connell v. Queen, 11 Clark & F. 155, 9 Jur. 25 (pl. abate.). And an objection made after conviction that the indictment was found on unsworn testimony is too late. Rex v. Dickinson, Russ. & R. C. C. 401 (obj.). And the same has been held to be too late, after a plea of not guilty. State v. Sheppard, 97 N. C. 401 (mo. qu.). A plea that the witness was not sworn before the court was bad where the statute authorized the foreman to administer the oath. Bird v. State, 50 Ga. 585 (pl. abate.). And an objection that the evidence was not on testimony of witnesses indorsed was insufficient where the statute limited objections and did not include this. Lawrence v. Com. 86 Va. 573 (pl. abate.). But where the grand jury had no authority to administer the oath to witnesses who were not indorsed or listed but were heard, an indictment is invalid. Com. v. Price, 3 Pa. Co. Ct. Rep. 176 (mo. qu.); Com. v. Wilson, 9 Pa. Co. Ct. Rep. 24 (mo. qu.). But in Jillard v. Com., 26 Pa. 169 (pl. abate.), it was held that such an objection must be made by mo. tion to quash and not by plea in abatement. If the foreman bad not the right to administer an oath to the witness in such a case, the indictment will be invalid. Ayrs v. State, 5 Coldw. 26 (mo. ar.). See further next subhead. VII. Witnesses generally. Where it was claimed that a list of witnesses should be furnished the accused, the court said, the solicitor general promised to furnish a list, and that he thought it was right that it should be done and that if an indictment is found upon improper evidence it should be known. Com. v. Knapp, 9 Pick. 496, 20 Am. Rep. 491 (inst.). And in Warner v. State, 13 Lea, 52 (contempt), it was said that the attorney-general has no power to direct witnesses to be sent to the grand jury, nor has the court, but under Tenn. Code, § 5087a, the grand jury only has the right and power to send for witnesses. And under Tennessee Code, § 5920, providing for indorsement of witnesses in cases of presentment, if such presentment is made on testimony of witnesses not enumerated in the indorsement, this invalidates if attacked by plea in abatement. State v. Lewis, 87 Tenn. 119 (mo. qu.). And under Tennessee Act 1841-2, chap. 31. provid ing for subpoenas for certain witnesses, to go before the grand jury, a plea in abatement that the presentment was made on evidence of persons not enumerated in the act, is a good plea. Deshazo v. State, 4 Humph. 275 (pl. abate.). But whether it was strictly competent for mem ing. By Stat. 1892, chap. 314, § 2, the city registrar is required to appoint from his subordinates two assistant city registrars, and the same section provides that the certificates and attestations of either assistant city registrar shall have the same force and effect as those of the city registrar. The result is that the certificate of the assistant city registrar, admitted in evidence under the defendant's exception, was plainly competent. certified to by the assistant registrar, was ad-, three clerks for copying and three for recordmissible in evidence. The records of town clerks relative to marriages are made by statute prima facie evidence in legal proceedings of the facts recorded, and a certificate signed by the clerk is made admissible as evidence of the record. Pub. Stat. chap. 32, § 11. See also Pub. Stat. chap. 145, § 29. Towns and cities of more than 10.000 inhabitants may choose a person other than the clerk to be registrar, and in that case the provisions concerning clerks apply to the registrar. By Stat. 1885, chap. 266, § 5, the city registrar of Bos-riage, charged in the indictment, the govern ton has power to appoint his own subordinates. General authority to make ordinances concerning registrars and registration is given by Pub. Stat. chap. 32. § 18. By the Revised Ordinances of the city of Boston of 1885 (chap. 20, 3) there are allowed to the city registrar, for the discharge of the duties of his department, bers of the grand jury to testify before another grand jury in a perjury case, without having been required to do so by judicial order, as provided under California Practice Act, section 218, will not be determined, but the indictment should not be set aside. People v. Young, 31 Cal. 563 (mo. set aside). In State v. Perry, 44 N. C. 330 (ev.), a witness was brought before the court to ascertain her competency and on examination she was set aside by the court because she did not appear to understand the obligations of an oath and had not sufficient intelligence, and the court refused to permit her to go before the grand jury. Where the plea in abatement was that the indictment was not found upon the evidence of a witness duly sworn in open court to testify on said supposed indictment it was held that Tennessee Act 1824, chap. 5, § 2, gives inquisitorial power and where the witnesses were sworn in open court and gave evidence before the grand jury, the indictment was sustained. The objection seems to be that the witnesses testified before the indictment was drawn. State v. Parrish, 8 Humph. 80 (pl. abate.). 7. In proof of the defendant's unlawful marment was allowed, against his objection and exception, to put in the testimony of a witness that he was a clergyman in Boston, and an or dained minister and pastor of a Congregational church, and that he had been such pastor for many years. The defendant contends that the testimony of this witness was not competent Under Tennessee Act 1801, chap. 30, § 1, providing that no bill of indictment shall be preferred without a prosecutor, where a married woman was prosecutor in an action of assault and battery, the indictment was quashed because a feme covert is irresponsible for costs and damages and after an indictment has been indorsed "true bill" the addition of her husband's name as prosecutor will not be allowed. Moyers v. State, 11 Humph. 40 (pl. abate.). But under the same statute it was held that after trial on the merits, an objection by motion in arrest is too late and will not reach the defect. Rodes v. State, 10 Lea, 414 (mo. ar.); Parham v. State, Id. 504. Under Ark. Dig., chap. 52, requiring the name of the injured party in trespass to be indorsed on the indictment, if such party is an infant or married woman the name of the prosecutor may be that of the father or husband. State v. Harrison, 19 Ark. 565 (ev.). But an objection that the prosecutor was the only witness and was a grand juror is insufficient under Arkansas Mansf. Dig., § 2098, providing for objection to a grand juror, who is a prosecutor, as that does not apply to a person who is already in And in State v. Stewart, 45 La. Ann. 1164 (mo. qu.), it was held that a private prosecutor who went before a grand jury without process and instituted prosecution, only did his duty, and the indictment was valid. But in State v. Robinson, 2 Lea, 114 (pl. abate.), where it was pleaded that the prosecutor in a lar-dicted. Baker v. State, 58 Ark. 513 (mo, set aside). ceny case was not sworn to give testimony on the indictment but was summoned to testify as to offenses as to which the grand jury have inquisitorial power, the plea was sustained. The court does not discuss any authorities or any statute but holds the plea good and sustained by the evidence. This scems directly to conflict with State v. Parrish, supra. The defendant cannot compel the exhibition of the minutes of the grand jury or the testimony of witnesses, where he claims that the evidence implicating him is false. N. Y. Code Crim. Proc., 313, providing for a list of witnesses, is the only way in which he can obtain the list of names. People v. Richmond, 5 N. Y. Crim. Rep. 97 (ev.). VIII. Prosecutor. An indictment for forcible entry and detainer, based upon evidence of a prosecutor who is incompetent to testify, is invalid. Reg. v. Cunard, Berton (N. B.) 326 (mo. qu.); State v. Fellows, 3 N. C. 340 (mo. qu.). And some cases hold that private or irresponsible prosecutors have no right to go before the grand jury and secure an indictment. McCullough v. Com. 67 Pa. 30 (mo. qu.); Charge to the Grand Jury by Mr. Justice Field, 2 Sawy. 677. Where the prosecutrix was a married woman in a prosecution charging the defendant with stealing property, the indictment should have been set aside. Waltingham v. State, 5 Sneed, 64 (mo. qu.). In Molett v. State, 33 Ala. 408 (dem.: mo. qu.), it was held that it is not necessary that there should be an informer. IX. Wife as witness. In cases of bigamy, polygamy, adultery, and incest, under the statutes of the several states, an indictment may be valid where the prosecuting witness was the defendant's wife. United States v. Cutler, 5 Utah, 608 (mo. qu.; mo. set aside); Ex parte Hendrickson, 6 Utah, 3 (contempt); State v. Tucker, 20 Iowa, 508 (mo. set aside). And the same was held in State v. Briggs, 68 Iowa, 416 (mo. to dismiss), although the defendant's wife afterward went before the grand jury and requested them to dismiss the charge. And the proper mode of making an objection, under Minnesota Penal Code, § 262, allowing prosecution for adultery on complaint of husband or wife, is by motion to set aside. State v. Brecht, 41 Minn. 50 (mo. set aside). And it is too late after a plea of not guilty to question that an indictment against several in a conspiracy to charge a married woman with adultery, was on the testimony of one of the defendants. State v. Burlingham, 15 Me. 104 (mo. qu.). |