ARK.] WHITTED V. STATE. 11 WHITTED V. STATE. Crirn. 3857 Opinion delivered September 25, 1933. i. I NDICTMENT AND INFORMATION—BURGLARY AND ROBBERY.—Since both burglary and robbery, under Crawford & Moses' Dig., § 3016, may be included in a single indictment where they are alleged to have been committed by a single act, the grand jury may by a single vote charge both crimes in separate indictments. 2. INDICTMENT AND IN FORMA TION—PROCEEDING ON ARRAIGN MENT.— Defendants, charged with burglary and robbery, cannot after conviction question the regularity of finding of the indictment, such question being properly raised on arraignment or call of the indictment for trial, under Crawford & Moses' Dig., § 3056: 3. GRAND JURY—GRAND JURORS AS WITNESSES.—In a habeas corpus proceeding seeking release on the ground that petitioners, sentenced for burglary, were never indicted for burglary but only for robbery; the grand jurors' testimony that they did not vote to indict on both charges held incompetent.
- 12 - WHITTED..v. STA . TE. - [188 -Certiorari to-St..Francis Circuit Court ; W. D.-Davenport, Judge ; affirmed. A.M..Bradford, S. S. Hat'graves and Win:stead John-son,: . for Petitionets.., `. 'Hal L. NorwoOd, Attorney General,- and Roy D. • C anipb'ell" for' respondent. 'SMITH, J. Appellants Were convicted upon a trial under an- indictment charging -them with the Crime - of burglarizing the Rice Growers' Bank of Wheatley, :in St. Francis County, Arkansas. To reverse this judgment, they insisted that the trial coUrt had erroneously , failed tO sastain . their 'Plea of fOrmer aCquittal, it . being shown that they had , been tried and . acquitted for -robbing thiS tank, -and 04 . !as both transactions were based -uPon single'act; an acqnittal upon one charge was. a bar to a , pfoSedlition for the-other._ We'oyerruled this . Contention, hOlding that While an; offender niay_eonarait the crimes of burglary . and rohhery in one 'act he . may be separately indieted : and proSeCuted for .each offense; and that an acquittal npon. One charge Was no bar to a prosecution for the Other. Upon this holding the judgment of the circuit court sentencing appellants to a term in the penitentiary for the crime of burglary was affirmed. s Whitted v. State, 187 Ark. 285, 63 S. W. (2d) 283. Subsequently appellants sought their release, under a writ of habeas corptiS, from the penitentiary, where they are:confined , pursuant to. the' , judgMent which we bad affirmed, upon . the ground that they had never been ihlictecLby the grand jury for the crime of burglary. 'The 'contention was and is that, while _appellants . were properly indicted for robbery, tbey had never been indicted atall for burglary; and in support. of -this contention . eet . tain members of the ',grand jury were = called as witnesS eS, Who testified that only one vote was taken upon the matter of indicting appellants, .and this vote was to indi r et them fipon a charge of robbery. • It was stipulated • that:members Of the O'and jury not then present would testify to the saMe effect. ,The foreman of the . grand jury testified that the jury votO to indict appellants upon'the charges both of burg::
ARK.] .NV JUTTED v. STATt:. 13 lary and •robbery, and that separate indictments were drawn and signed by him and were duly returned into court. .This witness was a Vice-president of the:bank. The grand j Ury 's stenographer : testifiedtdthe §abae effect.. He had taken in -short hand . the •testimony•Tiriun which the indictments • were • returned.' •The matter 'was inipres. sed upon his mirid•by the fact • that it Was . .the' first case which had Come -under -his Observation where . a person was - indicted for both robbery and burglary result of a single•act. He : drew the indietmentS . ,. but WaS uncertain whether to . draw an . indictment • for eadli ofTemse or to draw a .single indictment with -two • * CountS,' - one charging burglary and the • other- robbery: • • He' advised with- the • proSecuting attorney, who . -directed to'..0k6.- . pare . separate indictments, and this he did. :The-,-prose-. Cuting ntforney corroborated the te§timony of the' grand jury stenographer. 'The Circuit court clerk . testified that two indictmentS ., Were returned inte : oPen 'court', both signed bY 'the' prosocuting . attoimey and the• foreinan of the grand jury, in the presence of the entire•grand•jurY, against • appellants, one for the crhme Of 'robbery and' the other for the crime of burglary.. ..AlthOugh SeParate dictments AVere • rettirned c . harging ' 'appellatits' . With • fhe eriMes of 'burglary and robbery, reSpectiVely,'it • wa§ nót necessary that this shofild 'be done. . The §fatlite•ProVides that certain offense§ nrising Out .. of the Same' tranSactiOn May be charged in One indictinent, .and • aniOng OtherS 'are the-et:MI6§ of robberY'and bnrglary: • Secti:On;3 , 016, ` Cr4W-ford & MoSes' Digest... It . Was 'fief , nee'essary, 'therefore, that the grand jfiry vote a . §econd time to 'indict appet-lant§ for the commission—of the crimes -of robbery and burglary: • • • • `• • • Appellants . .Were not tried:fit the term of. court am;- ing Which they were indicted, but Were tried, at the peXt term upon the robbery charged, and Were tried at the next ensuing term upon fhe • charge of burglnrY. • The petition for habeas corpus was denied, n-nd this appeal has been prosecuted to review that action.- • The Constitution provides,qhat NO. :Person shall :be held to answer a criminal 'ehar0;e unlesS, omthe-rpresent-
14 WHITTED v. STATE. [188 ment or indictment of a grand jury." Section 8, article 2, of the Constitution. Appellants insist that they were tried and convicted upon a felony charge without having been indicted there-for, in violation of the provision of the Constitution above-quoted. But indictments were returned apparently in the manner provided by law, and the question for our decision is whether the validity of the indictment under which appellants were convicted can be questioned -in the time and manner here attempted. Section 3056, Crawford & Moses ' Digest, reads as follows : "Upon the arraignment, or upon the call of the indictment for trial, if there is no arraignment, the defendant must either move to set aside the indictment or plead thereto." .This statute contemplates that, before the trial of the cause, the accused shall present such objections as he careS to make to the return of, the indictment. It does not appear when appellants were advised that there was any question about the validity of the indictments upon which they were tried, but it clearly appears that no such question was raised until they had been acquitted on one charge and convicted on the other. The apparent purpose of the statute quote.d is to prevent an accused from speculating on the regularity of the proceedings leading up to his indictment. He cannot take the chance of being acquitted- and thereafter, being disappointed in this expectation, raise a. question which the statute provides shall be raised upon the arraignment or upon the call of 'the indictment for trial. The indictment must, of course, charge a public offense. Not even a verdict of guilty cures a failure so to do. Section 3224, Crawford & Moses' Digest. But questions not involving the sufficiency of the indictment to charge a public offense should be raised' in the time and manner provided by statute. It also appears that there was no competent testimony :showing that appellants were .not in fact indicted. The _only testimony tending to show that the grand jury did not vote to indict upon both charges was that of members of the grand jury set out above, and it has been held that such testimony is not competent for this
ARK.] W HITTED V. STATE. 15 purpose. The opinion in the case of Nash v. State, 73 Ark. 399, 84 S. W. 497, reflects the fact that the. appellant Nash had 'been indicted for manslaughter, and the judge of the court referred the charge to the grand jury for further action, and a second indictment was returned, the. last being- for murder in the first degree. Before being put to trial, the defendant . filed a motion to set aside the second indictment, upon the ground, among others, that only eleven members of tbe grand jury voted for it or concurred in finding• it, and he offered to make proof of this allegation. The court declined to hear testimony sustaining • the allegations of the motion• to dis; miss, and in that connection it was said : "The statutes of -this State require that the • proceedings of a gtand jury shall be in secret. They provide: 'Every member-Of the grand jury must keep secret * whatever he:himself, or any other grand juror, may have said, or in what manner he, or any other grand juror, may Ilave . voted on a matter before them.' Sand. & H. Digest,• § 2054. 'A. grand juror cannot be questioned for anything he may say, or any vote . he -may give, relative to a niatter legally before the grand . jury, except for a perjury be may have committed in making accusation, or giving testimony before his fellow jUrors.' Sand. & H. Digest, § 2056. And further provides : 'Any grand juror who shall disclose any evidence given before the grand jury, except when lawfully required to testify as a witness, * * * shall be deethed guilty of a misdemeanor, and on , conviction thereof shall be fined in any sum not exceed . - . ing $100.' *Sand: & H. Digest, § 1.752. Thus the statutes protect the proceedings of the grand jury against publicity, and with especial 'care tbey prohibit the disclasure of the votes of the individual grand jurors on finding an. indictment. It would be a violation of the policy evinced. by these statutes and an invasion of the secreCy of the grand jury room to permit a grand juror to testify as to the number of the grand jurors that voted for • an indict-. ment. State v. Gibbs-, 39 Iowa 318 ; State v. Mewherter, 46 Iowa 88; State v. Fasset. 16 Conn. 457 ; Gitahell v. People, 146 Ill. 175, 33 N. E. 757 ; 1 Bishop's New Criminal Procedure, § 874, and cases cited ; and WhartoTi's
16 WILD:TED' V. &AM . [188 Criminal Pleading and Practice (8th ed.), § 379, and cases cited. The concurrence . of -twelve grand jurors is required to find an indictment. The presentment of an indictment to the court by the. grand jury is evidence of such concurrence. This, if it can •be, may - be disproved, but not by the evidence of a member of . the grand jury." The judgment was reversed, however, but for dn-other reason, and Nash was again convicted of murder , in the first degree, and upon his second appeal, reported in -79 Ark. 120, 95 S. W. 147, it was . said: "The first error assigned .by appellant is the refusal of the. court to allow the appellant to introduce as witnesses members, of the • granc1-7 jury which found the. indictment in order to show by them that the finding of the indictment was concurred in by Only eleven of their members. In* somewhat- different form, but in essentials, .the same question was passed upon when the case was first here. There is a conflict in -. the authorities , on this subject,• This court adopted the. view that the adniission of such evidence contravenes the statutes requiring secrecy of grand jury proceedings, and that the presentment of the-indictment by the grand jury in open court is 'evidence of their concurrence, which Can not - be overcome by evidence from the members of thdt body, if at all. The court: finds no reason to change that holding." • In the case of Cook v. State, 109 Ark. 384, 160'S. W. 223, it is recited that the defendant offered to show; in support of .his. motion to quash the indictment,, that it was not concurred in by' twelve members . of. the grand jury—the number required by law to find .an indictment: The record there 'showed, as it- does in the instant case, that- the grand jury_ came into court, and that with all its mernbers present, the indictMent in question was • returned in open court,, d .was properly. indorsed- "-A true bilk" and was signed by the foreman, was handed to the clerk and ordered filed and numbered as the law directs. In Sustaining the action of the trial.court in refusing to quash the indictment . notwithstanding The offered testi-•ony,-it was there said: "Where an indidment is properly returned into court, 'it Will be presumed that it was duly found With the Concurrence of the requisite number
Of .the grand jury, and the. co .urt _did not. err in-overruling the defendant's motion to quash the indictment. St. Louis, I. M. S. Ry. Co. v. State, 99 , Ark. 1, 136 S. W. 938; Nash v. State, 73 Ark. 399, 84 S. W. 497." In the case of State v. Fox , . 122 Ark. 197,.182 S. W. 906, the . facts were- that the judge - had quashed the indictment on the ground that it was not based on any legal evidence heard by the grand jury. This action of the court was held to be ,erroneons, it being there stated that the cOurt should set an indictment aside only for the reasons reqUired by the statute. . In that connection it -was there-said: "An indictment is merely an aecusa tion again a st a defendant and does not even raise a presumption guilt, and any irregularity in-the finding and return of it by -the grand- jury does not deprive the ac-- cused of any substantial right; Since -the -trial before a jury, on a plea of- not guilty affords an opportunity to establish his innocence or: the. truth of the- .charge. Latourette.v. State; 91 Ark. 65, 120 S. W. 411 ; Worthem v. State, 82 Ark. 321, 101 S. W. 757.". The cases of McDonald v. State, 155, Ark. 1.42, 244 S. W. 20, and Murphy.v. State,,171 Ark. 620, 28-6 S. W. 871, are to the same effect.- . The defendants-were tried upon- indictments returned 'into open court in the :manner and form. required by law, and there was no competent testimony warranting the court in setting them aside. The writ of habeas corpus was therefore properly . denied, and that judgment is affirm ed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.