Attorney General," was held to be sufficiently signed, without adding the name of the district of which he was attorney general;m but an indictment signed by a person styling himself solicitor general, is invalid, there being no such officer known in that state.n It is not a valid objection to an indictment that it is signed by one as district attorney pro tem., rather than by the district attorney. n1 Even where the signature is necessary, the district attorney will be allowed to sign an indictment found without his signature being appended thereto, and a motion to quash for want of such signature will then be overruled. n2 The proceedings in bringing an indictment before the court, must be conducted by the prosecuting attorney in person, but the actual trial before the court and jury may be conducted by other counsel. The attorney general may properly assist the circuit attorney at a trial for murder, whether ordered by the governor to do so or not, and the prisoner cannot take just exception.o1 The indictment being signed and preferred by the attorney general, it will be presumed, in the absence of anything to the contrary, that an attorney general pro tem., who conducted the trial, was properly appointed.p § 475. In Pennsylvania, by the first section of the act of May 3d, 1850, providing for the election of district attorney, it is provided that the officer so elected shall sign all bills of indictment, and conduct in court all criminal or other prosecutions in the name of the commonwealth, or when the state is a party, which arise in the county for which he is elected. p1 VI. SUMMONING OF WITNESSES, AND INDORSEMENT OF THEIR NAMES ON BILL. § 476. In every case where there has been a previous examination and binding over, which, as has been seen, is the regular, ance in title, see State v. Tannahill, 4 Kansas, 117. o Byrd v. State, 1 How. Mis. 247; Rush v. Cavanaugh, 2 Barr, 187; Jar m Stater. Brown, 8 Humph. 89; nagin v. State, 10 Yerg. 529. See BeState v. Evans, 8 Humph. 110. n Teas v. State, 7 Humph. 174. See State v. Salge, 2 Nev. 321. n' Reynolds v. State, 11 Texas, 130. See State v. Gonzales, 26 Texas, 197. n2 Com. v. Lenox, 3 Brewster, 249. mis's Webster case. See post, § 3001. ol State v. Hays, 23 Mo.(2 Jones) 287. p Isham v. State, 1 Sneed (Tenn.), 112. (A capital case.) Post, § 3001. pl Pamph. 1850, 654; Com. v. Lenox, supra, note n2. and, with a few settled exceptions, the sole way of putting an offender on his trial, the prosecutor, if there be any, and the witnesses, are under recognizance to appear and testify. The practice is, immediately at the opening of the court, to call their names; and, in case of non-appearance, to secure their attendance by process. At common law, a justice of the peace, at the hearing of a criminal case, has power to bind over the witnesses, as well as the defendant, to appear at the next court, and in default of bail to commit them. q § 477. The presence of witnesses not under recognizance to attend, is obtained by the ordinary means of a subpœna. § 478. The practice is, for the attorney general, or, in England, the clerk of the assizes, to mark on the back of each bill the witnesses belonging to it; though it has been held that the omission is not fatal. q1 § 479. In Massachusetts, such does not appear to be the course, it being usual for the grand jury to return generally the names of all the witnesses examined by them, without specifying the bills; but in a leading case, where the prisoner's counsel requested that a list of the witnesses before the grand jury should be given, the court granted the application without doubt, it being remarked by Wilde, J., that such a request had never been refused. r § 480. In Pennsylvania, the act of 1705 provides that no per son or persons shall be obliged to answer to any indictment or presentment, unless the prosecutor's name be indorsed thereupon;s and though it has been held by the supreme court, that the act does not go so far as to require that a prosecutor should be indorsed in cases where no prosecutor exists, t yet undoubtedly, the spirit of the common law requires that the bill itself should afford the defendant the means of knowing who are the witnesses on whose evidence the accusation against him is based. u If the grand jury act irregularly in introducing witnesses without the action of the attorney general, the proper 2 Hale P. C. 52, 282; 3 M. & S. 1. q1 4 M. & S. 9; see State v. Scott, 25 Ark. 107; People v. Naughton, 7 Abbott (N. Y.), Pr. N. S. 421; 38 How. Pr. 430; U. S. v. Shepard, 12 Int. Rev. Rec. 10. VOL. I. - 25 r Com. v. Knapp, 9 Pick. 498. s 1 Smith's Laws, 56. t R. v. Lukens, 1 Dallas, 5. u Arch. C. P. by Jervis, 13; Barbour's Cr. Treatise, 272. 385 course is to move to quash. The irregularity cannot be pleaded in bar. ul The revised act, 1860, provides: "No person shall be required to answer to any indictment for any offence whatsoever, unless the prosecutor's name, if any there be, is indorsed thereon, and if no person shall avow himself the prosecutor, the court may hear witnesses, and determine whether there is such a private prosecutor, and if they shall be of opinion that there is such a prosecutor, then direct his name to be indorsed on such indictment." v In Virginia, by the crimes act of 1866, the prosecutor's name must be indorsed. v1 In Ohio, it is provided that no bill of indictment for any offence specified in the act entitled "An act for the punishment of Crimes," passed March 8, 1831, shall be found a true bill by any grand jury, unless the name of the prosecutor be indorsed thereon, except such bill be found upon testimony sworn and sent to the grand jury by order of the court, at the request of the prosecuting attorney, or the foreman of the grand jury, in which cases the fact that the bill was found upon testimony sworn and sent to the grand jury by order of the court, shall be indorsed on the bill instead of the name of the prosecutor. v2 The same act provides, that in all cases where the prosecutor's name is indorsed on the bill, and the same is found a true bill by the grand jury, and upon trial the defendant is acquitted, the prosecutor shall be liable for costs; and the court at the term at which such acquittal shall take place, or at any subsequent term, shall render judgment against such prosecutor for such costs, unless the court shall be of opinion that there were reasonable grounds for instituting the prosecution. w § 481. In Mississippi, though the want of the name of the prosecutor indorsed on the back of the bill is fatal, w1 it is not necessary that the grand jury should return, with the indictment, the names of the witnesses examined, or the evidence. x § 482. In Missouri, the name of the prosecutor is required to be indorsed upon an indictment for any trespass not amounting u1 Jillard v. Com. 2 Casey, 169. v § 27, Bright. Supp. 1376. vl Pamph. 1866, 927. v2 Act of April 11, 1857, § 6. w Act of April 11, 1857, § 7. wl Peter v. State, 3 How. Mis. 433. x King v. State, 5 Howard Mis. R. 730. to a felony, y and under this statute the prosecutor's name must be indorsed upon an indictment for petty larceny, z or riot, a but it need not be indorsed upon an indictment against a slave for arson, b nor on an indictment for a disturbance by making loud noises;c and it is a sufficient indorsement if the prosecutor's name be written on the face of the bill. d In Tennessee, the name of the prosecutor must be marked on the back of the bill, e and an omission to do so need not be pleaded in abatement, but may be taken advantage of at any time. But if the indictment be founded on a presentment, the name of the prosecutor need not be indorsed on the bill. g § 483. In Arkansas, the name of the prosecutor need not be indorsed on a bill for passing counterfeit coin, that offence not being a trespass upon the person or property of another less than felony.h It is not the practice, it is said, in the courts of the United States, that the name of the prosecutor should be written at the foot of the indictment. i § 484.. In Virginia, the rule is the contrary. It is not there essential, however, in an indictment for a trespass or misdemeanor, to insert the name of a prosecutor, if it appears that the indictment was found on the evidence of a witness sent to the grand jury, either at their request, or by direction of the court; and that whether there was a previous presentment or not. k § 485. In Kentucky, it is held that the omission of the name of the prosecutor, his addition, and residence, in cases of trespass, is fatal.l § 486. In Missouri, it is said that it is a sufficient indorsement of an indictment by the prosecutor, that his name is written on the face of the indictment. m y Rev. Code, 1835, § 451. a State v. McCourtney, 6 Mo. 649; c State v. Moles, 9 Mo. 685. d Williams v. State, 9 Mo. 270. e Act 1801, c. 30, § 1. f Medaris v. State, 10 Yerger, 239. g State v. McCann, 1 Meigs, 91. h Gabe v. State, 1 Eng. 519. i U. S. v. Mundell, 6 Gall. 245. See State v. Lupton, 63 N. C. 483. j Haught v. Com. 2 Va. Cases, 3; Com. v. Dove, Ibid. 29. k Wortham v. Com. 5 Randolph, 669. 1 Com. v. Gore, 3 Dana, 474; Bartlett v. Humphreys, Hardin, 513. m Williams v. State, 9 Mo. 270. § 487. In Iowa, it is said that although the names of the witnesses should be indorsed on the indictment, they need not be made a part of the record. n VII. EXAMINATION OF TESTIMONY. 1. How WITNESSES ARE TO BE SWORN, § 488. 2. How DEFECTS IN THIS RESPECT MAY BE EXCEPTED TO, § 489. 3. EVIDENCE CONFINED TO THE PROSECUTION, § 490. 4. PROBABLE CAUSE ENOUGH, § 491. 5. LEGAL PROOF ONLY TO BE RECEIVED, § 493. 6. ATTENDANCE OF PROSECUTING ATTORNEY, § 495. 7. DEFENDANT AND OTHERS NOT ENTITLED TO ATTEND, § 496. 1. How Witnesses are to be sworn. § 488. By the ancient practice, witnesses to be sent to the grand jury were previously sworn in open court. If a witness who is sent to a grand jury be thus sworn, though not in the immediate presence of the judge, or even in his temporary absence from the bench, it is good.o In Connecticut, witnesses before a grand jury, according to settled and uniform practice, are sworn by a magistrate, in the grand jury room, and not in court; and this is pronounced a lawful mode of administering the oath.p In the U. S. circuit court for the Eastern District of Pennsylvania, the practice was, it is said, to summon a justice of the peace as one of the grand jury, and to permit him to swear the witnesses in the jury room; q but, at present, the witnesses are sworn in court by the clerk. In many of the states, however, express power is given to the foreman to swear witnesses whose names are given to him for the prosecution. Such an authority is given in Massachusetts, by the statute of 1807, c. 140; in New York, by the Revised Statutes, part ii. title 4, c. 2, act 1, sect. 29. In Pennsylvania, by the act of April 5, 1826, the foreman of the grand jury, or any member thereof, is authorized to administer the oath to witnesses. It will be observed, however, that in the latter state the authority is expressly limited to such witnesses "whose names are marked by the attorney general on the bill of indictment;" and, consequently, all others must be sworn in open court. q1 n Harriman v. State, 2 Greene (Iowa). 270. o Jetton v. State, 1 Meigs, 192. q 7 Smith's Laws, 686. q1 See Jillard v. Com. 2 Casey, 169. See contra, Ayrs v. State, 5 Cold. (Tenn.) 26. |