was heard by the accused; and the said judge is of opinion that evidence of the said conversation ought to have been admitted upon that condition. Therefore it is considered, ordered and adjudged by the court, that for the errors aforesaid, the said judgment or the said hustings court be reversed and annulled, the said verdict of the jury be set aside, and a new trial be awarded to the plaintiff in error for the said offence; and the cause is remanded to the said hustings court for a new trial and further proceedings to be had therein in conformity with the foregoing opinion; which is ordered to be certified to the said hustings court of the city of Richmond. JUDGMENT REVERSED. 1878. January Johns'n's Case. Richmond. WHITE . THE COMMONWEALTH. January 24. 1878. An indictment for a felony is endorsed January A true gun," which is signed by the foreman. The jury present the paper in court as an indictment, it is read to them by the clerk as their indictment, and assented to by them; it is entered on the record as an indictment, and the prisoner is tried upon it upon the plea of not guilty. Upon a motion to arrest the judgment-HELD : No endorsement is necessary on the indictment to constitute it such; and the mistaken endorsement cannot invalidate it. The case is stated by Judge Moncure in his opinion. George S. Bernard, for the prisoner. The Attorney General, for the Commonwealth. MONCURE, P., delivered the opinion of the court. This is a writ of error to a judgment of the county court of Dinwiddie county, convicting the plaintiff in error, White, of felony, and sentencing him therefor to confinement in the penitentiary for the term of three years. The indictment on which he was convicted, charged that he, "on the 15th of October, 1877, in the said county, a certain out-house, commonly called a barn, or tobacco-house, with a stable attached, belonging to James W. Gunn, which, with the property then therein contained, was of the value of $400, feloniously and White's Case. maliciously did burn, against the peace and dignity of 1878. January the Commonwealth of Virginia." When the grand jury Term. returned into court with the indictment, it had on it, or under it, these words in writing, subscribed by their foreman: "A true gun." A. T. Towree, Foreman. The accused being arraigned, plead not guilty to the indictment. Whereupon, a jury being sworn to try the case, found a verdict therein in these words: "We, the jury, find the prisoner guilty of the charge in the within indictment, and that the barn and contents are worth more than $100; and fix his term of confinement in the public jail and state penitentiary for three years, and recommend him to the executive for mercy." The accused, by counsel, moved the court in arrest of judgment; which motion the court, after taking time to consider, overruled. And judgment was thereupon rendered according to the verdict. The accused applied to the judge of the circuit court of said county for a writ of error to said judgment; which being refused, he applied to this court for such writ; which was accordingly awarded. There is but one question in the case, which arises on a bill of exceptions taken therein. It is stated in said bill, "that after the jury rendered their verdict in this case and were discharged, the prisoner, by his counsel, moved the court in arrest of judgment, and submitted that it ought not to proceed to judgment upon the verdict aforesaid, for the reasons following: "1st. No indictment has been found against the prisoner by a grand jury, in a court of competent jurisdiction. The original paper treated in this case as an indictment against the prisoner is not an indictment so found, inasmuch as said original paper nowhere bears. the indispensable words, 'a true bill.' "2d. The prisoner has, in no way whatever, waived the privilege given him, to require that he shall not be VOL. XXIX-104 January 1878. put upon trial for a felony charged against him until an Term. indictment shall have been first found against him by a grand jury in a court of competent jurisdiction. White's "3d. Said privilege, requiring to be first so indicted before being put upon trial for a felony, is a right given to the prisoner by the constitution of the state, and cannot be waived." It is further stated in said bill that in support of the said plea in arrest of judgment, upon grounds aforesaid, "the prisoner, by his counsel, called the attention of the court to, and asked the court to inspect, said original paper, treated as an indictment in this cause, and its endorsements," (which paper and endorsements are set out in the bill); "and the court further certifies that it appears in this cause that the record shows that the grand jury were regularly empanelled and sworn and charged, and having retired to their room and spent some time therein, came into the court-room and answered to their names, and were then asked by the clerk if they had agreed upon any bills of indictment; to which they replied yes, and handed to the clerk the paper treated as an indictment in this cause; and the clerk with the said paper before him, read in the presence of the grand juryThe Commonwealth vs. Alex. White alias Elick White: Indictment, a true bill;' and then entered upon the record-to-wit: the minute-book-the following as the finding of the grand jury, to-wit: The Commonwealth vs. Alex. White alias Elick White: Indictment, a true bill.' And thereupon the prisoner was brought into court, and arraigned in the usual form, upon the said paper, treated as an indictment in this cause; and upon his arraignment, pleaded not guilty.' The trial then proceeded regularly to verdict. And thereupon, the court having fully considered said motion in arrest of judgment, and the grounds therefor, doth overrule the same; the court being of opinion that the said original paper, treated as an indictment in this cause and endorsed as aforesaid, is not, in any wise, defective in substance, but only in form. And as the prisoner made no objection thereto till after the verdict aforesaid had been found by the jury and recorded by the clerk, but had pleaded not guilty,' he, the prisoner, must be treated and considered as having waived all objections to said . indictment as to form. To which opinion of the court, overruling said motion in arrest of judgment, the prisoner by counsel excepted, and tendered this his bill of exceptions, and prays that the same be signed and sealed by the court and made part of the record in this cause; which is accordingly done." Thus it appears that the only question presented by this record for the decision of this court is, whether the the original paper, upon which as an indictment the plaintiff in error was tried for and convicted of felony, was found by the grand jury to be a true bill. There can be no doubt but that the grand jury, or rather the foreman, in endorsing the bill a "true gun," meant a "true bill," being probably led into the mistake by the fact that the indictment on which the endorsement was made, charged that the house burned was the property of a man named Gunn, who was thus, no doubt, the prosecutor. So that if it were necessary that a bill, in order to be made a good indictment, should have on it an endorsement by the grand jury, or its foreman, that it is a true bill; yet as the word "gun" was here obviously used for the word "bill," as it was read by the clerk in the presence of the jury and acquiesced in by them—as it was so entered of record by the court, and as the accused plead not guilty to the indictment, and made no objection to the finding of the grand jury until after the verdiet was rendered against him, it was then too late to 1878. Term. January White's Case. |