dered incompetent by conviction of an infamous crime, it will be quashed before plea, though the objection will be too late after conviction. q And so where a defendant was compelled to testify against himself. q1 On the other hand, the fact that one of several witnesses, who testified to an offence before the grand jury, was incompetent, is not sufficient to sustain a plea in abatement to the indictment, since it is impossible to show that an indictment was found on the testimony of one witness alone.q2 The practice when there has been irregularity in swearing of witnesses, has been already discussed. q3 § 494. The grand jury, if they have any doubts as to the propriety of admitting any part of the evidence submitted to them, may pray the advice of the court to which they are attached ; r though it is usual to apply to the counsel of the state, who is bound to be at hand, and ready to communicate to them any information that may be required. s New bill may be found on old testimony. - Wherever a former bill, found by the same grand jury, has been superseded, a new bill may be found as a substitute without examining witnesses. 81 6. Attendance of Prosecuting Attorney. § 495. In New York, it seems to have been considered that the functions of the district attorney, so far as the grand jury are concerned, are exhausted at the moment of the bill reaching their hands, unless revived by a subsequent call for information; and that he has no right to be present at their sessions and assist in the examination of witnesses. t What are the rights of the attorney general in the premises, is not there determined. In England, as a general rule, the clerk of the assizes is the attendant of the grand jury, and is expected not only to aid them in their examinations, but to place before them each several item of business as it successively arises. In the other courts, as is stated by Mr. Chitty, it is not unusual to permit the prosecutor to be present to conduct the evidence on the part of the crown, u though this appears to be at the grand jury's option, to be exercised where a case of difficulty requires the marshalling of evidence or the leading of unwilling witnesses. v And one case is on record where the grand jury refused to allow this privilege.w The practice in Massachusetts, as stated by Mr. Davis, is, for the officer having charge of the preparation of the indictments to attend the grand jury, to open each particular case as it arises, to commence the examination of each witness, and to meet any question as to the law of the case which may be given to him. But it is his duty, "during the discussion of the question, to remain perfectly silent, unless his advice or opinion in a matter of law is requested. The least attempt to influence the grand jury in their decision upon the effect of the evidence, is an unjustifiable interference, and no fair and honorable officer will ever be guilty of it. It is very common, however, for some one of the grand jury to request the opinion of the public prosecutor, as to the propriety of finding the bill. But it is his duty to decline giving it, or even any intimation on the subject; but in all cases to leave the grand jury to decide independently for themselves. It may be thought that this is too great a degree of refinement in official duty. But the experience of thirty years furnishes an answer most honorable to the intelligence and integrity of that body of citizens from which the grand jury are selected; and that is, that they almost universally decide correctly." x This is the uniform practice in Pennsylvania. In the United States courts the practice is thus stated by Judge Field, in a charge delivered to a California grand jury in August, 1872. "The district attorney has the right to be present at the taking of testimony before you for the purpose of giving information or advice touching any matter cognizable by you, and may interrogate witnesses before you, but he has no right to be present pending your deliberations on the evidence. When your vote is u 1 Ch. C. L. 816. x Davis's Precedents, 21; see, also, v 4 Blac. C. 126, note by Christian; M'Lellan v. Richardson, 1 Shep. (13 Dick. Q. S. 6th ed. 1837. Me.) 82, where it appears that the same usage exists in Maine. w Crossfield's case, 8 St. Tr. 773. taken upon the question whether an indictment shall be found or a presentment made, no person besides yourselves should be present." The privilege of attendance should be strictly limited to the prosecuting officer officially clothed with this high trust, and not extended to mere temporary assistants; and in South Carolina, in 1872, an indictment was properly quashed, because attorneys temporarily representing the solicitor general entered the room of the grand jury, when they were deliberating as to the bill, and advised them as to their action. 1 7. Defendant and others not entitled to attend. § 496. In England, and in the courts of each of the several states, with one exception, neither the defendant, nor any person representing him, is permitted to attend the examination of the grand jury.y And Judge King, in an opinion marked with his usual learning and good sense, has held, that the sending of an unofficial volunteer communication to the grand jury, inviting them to start on their own authority a prosecution, is a misdemeanor at common law. z Any volunteer attendance is by the x1 State v. Addison, 2 S. C. 356. y 1 B. & C. 37, 51; 3 B. & A. 432; 1 Ch. R. 217; 1 Ch. C. L. 317; McCullough v. Com. 67 Penn. R. 30; Com. v. Simons, 6 Phil. R. 167. culated to prevent and obstruct the due administration of justice, and to bring the proceedings of the grand jury into contempt. 'Let any reflecting man,' says a distinguished judge, z Com. v. Crans, 3 P. L. J. 463. 'be he layman or lawyer, consider of "There has hardly been a session," the consequences which would follow, said Judge Field, of the supreme if every individual could, at his pleascourt of the United States, in address- ure, throw his malice or his prejudice ing a grand jury in California in 1872 into the grand jury room, and he will, (Pamph. Rep.), " of the grand jury of of necessity, conclude that the rule of this court for years, at which instances law which forbids all communication have not occurred of personal solicita- with grand juries, engaged in crimition to some of its members to obtain nal investigations, except through the or prevent the presentment or indict- public instructions of courts, and the ment of parties. And communications testimony of sworn witnesses, is a rule to that end have frequently been ad- of safety to the community. What dressed to the grand jury, filled with value could be attached to the doings malignant and scandalous imputations of a tribunal so to be approached and upon the conduct and acts of those influenced? How long would a body, against whom the writers entertained so exposed to be misled and abused, hostility, and against the conduct and be recognized by freemen as among acts of former and present officers of the chosen ministers of liberty and sethis court, and of previous grand juries curity? The recognition of such a of this district. mode of reaching grand juries would "All such communications were cal- introduce a flood of evils, disastrous to same rule subject to the same law. z1 In Connecticut, however, it was held by the nine judges that a prisoner was entitled to be present during the examination in his particular case, and might ask the witnesses such questions as he thought proper. a In Maine, it is said that the presence of a stranger does not vitiate an indictment, if he does not act. a1 VIII. FINDING AND ATTESTING OF BILL. § 497. The examination being over, it becomes the duty of the grand jury to pass upon the bill; and unless twelve of their number agree to find a true bill, 6 the return is "ignoramus," or, as is more commonly the case, "ignored," or, "not found." The usual practice is for the foreman to sign the return; and the words "true bill," with his name attached, have been frequently considered a good finding, e though it was held not an error where the indorsement was simply "a bill," omitting the word true. d And in some states it has been held sufficient to omit the words, "a true bill" altogether, where the signature of the foreman is given. e The weight of authority, however, is that the omission of the words "true bill," if excepted to before verdict, will be fatal.f An indorsement on the envelope (though not on the bill itself) has been held good after verdict. g the purity of the administration of criminal justice, and subversive of all public confidence in the action of these bodies."" Judge King, of Philadelphia, in Commonwealth v. Crans, in 3 Penn. Law Journal, pp. 459-464. By an act of Congress, passed in 1872, such solicitations are indictable. Post, § 3336. 21 McCullough v. Com. ut supra. a Lung's case, 1 Conn. 428; State v. Fassett, 16 Conn. 458. al State v. Clough, 49 Maine, 573. b Sayer's case, 8 Leigh, 722. As to U. S. courts, see § 463 a. c State v. Davidson, 12 Ver. 300; State v. Elkins, 1 Meigs R. 109; Bennett v. State, 8 Humph. 118; 1 Ch. C. L. 324; Arch. C. P. by Jervis, 39; Spratt v. State, 8 Mo. 247; McDonald v. State, 8 Mo. 283; Gardner v. People, 3 Scam. 83; Harriman v. State, 2 Greene (Iowa), 270; State v. Onnmacht, 10 La. R. 198; Hopkins v. Com. (14 Wright) 50 Penn. 9. d Sparks v. Com. 9 Barr, 354. e Com. v. Smith, 6 Bost. Law Rep. N. S. 489; State v. Freeman, 13 N. H. 488; State v. Axt, 6 Iowa (Clarke), 511; Com. v. Smyth, 11 Cush. (Mass.) 473; Price v. Com. 21 Gratt. 846; State v. McCartey, 17 Minn. 76. ƒ Harriman v. State, 2 Greene (Iowa), 270; Gardner v. People, 3 Scam. 83; Spratt v. State, 8 Mo. 247; State v. Webster, 5 Greene, 373; Nomague v. People, Breese, 109; McDonald v. State, 8 Mo. 283; Com. v. g Burgess v. Com. 2 Va. Cases, 483. See Com. v. Betton, 5 Cushing, 427. The only proper indorsement on an indictment being “a true bill," or "not a true bill," with the name of the foreman ; anything else is not a part of the finding of the grand jury.gl § 498. A bill of indictment, indorsed a true bill, where, to the subscription of A. B., the foreman, the letters F. G. J. were added, was held sufficient to indicate that he acted as foreman, when it appears from the record that A. B. was in fact the foreman of the grand jury when the bill was found. It was also said that if no letters had been added after his name, his subscription to the indorsement could only be referred to his official acts as foreman, and would therefore be sufficient. h In Massachusetts, the signing the name of the foreman to the indorsement "a true bill," on a bill of indictment, is essential to its validity; but although this is a judicious check, it is not everywhere essential. Thus, in North Carolina, South Carolina, Georgia, Florida, New Hampshire, and Kentucky, it is even said his name may be omitted altogether. And so, too, a variance between the name of the foreman, as appearing upon the record of his appointment, and his signature upon the bill, is immaterial, for his identity must necessarily be known to the court, and the receiving and recording the bill with his indorsement, establishes it. Nor is it material in what part of the indictment the signature of the foreman is placed. An indorsement by the I foreman of the grand jury, of the initial letter of his first name, where the record of the appointment states his name at length, is not a material variance. m Walters, 6 Dana, 290; Bennett v. State, 8 Humph. 118; State v. Mertens, 14 Mo. 94; Jillard v. Com. 2 Casey, 169; Smith v. State, 28 Missis. 728; Wan-konchaw-neck-kaw v. U. S. 1 Morris, 332; Johnson v. State, 23 Ind. 32. gl Thompson v. Com. 20 Grat. 724. h State v. Chandler, 2 Hawks, 439; McGuffie v. State, 17 Geo. 497; State v. Brown, 31 Vermont, 603; see Wassels v. State, 26 Ind. 30; Wall v. State, 23 Ind. 150. i Com. v. Sargent, Thach. Crim. Cases, 116. j State v. Freeman, 13 N. Hamp. 488; State v. Cox, 6 Iredell, 440; Com. v. Walters, 6 Dana, 290; State v. k State v. Calhoun, 1 Dev. & Bat. 374; State v. Collins, 3 Devereux, 117. 1 Overshiner v. Com. 2 B. Monroe, 344. m Com. v. Hamilton, 15 Gray, 480; State v. Collins, 3 Dev. 117; State v. Taggart, 38 Maine (3 Heath), 298. Where Alexander R. Hutcheson was appointed foreman of the grand jury, and a bill of indictment was indorsed |