#### Nomaque, an Indian, Plaintiff in Error, v. The People, Defendants in Error.

ERROR TO PEORIA.

It is necessary, in order to give the court the right to try a prisoner, “that the bill of indictment found by the grand jury, should be indorsed “ a true bill,” and signed by the foreman; an indictment without such indorsement is a nullity. (1) It is an act of great indiscretion in a court to permit the jurors to go at large after they are sworn, as well before the trial, as after.

On the production of affidavits going to prove that one of the jurors had made up his mind against the prisoner, though he swore that he had not formed an opinion, if the fact is discovered after the trial, a new trial ought to be granted.

A prisoner in a capital case is considered as standing on all his rights, and waiving nothing'on the score of irregularity; an agreement therefore between his counsel and the counsel for the people that the jury, if they agree, may deliver their verdict to the clerk, is irregular, and a verdict delivered in court under such an agreement, in the absence of the jury, ought to be set aside for such irregularity.

A prisoner has a right to the presence of the jury when they deliver the verdict, as he is entitled to have them polled, and a verdict is not final, until pronounced and recorded in open court.

(1)

Although this decision has been generally followed on the circuits of this state, and seems in one case to be approved by the supreme court, yeti am unable to see any good reason for it, and believe the current of modern authorities in other states is against it. The statute of this state on this subject is as follows :— “After the grand jury is impanneled, it shall be the duty of the court to appoint a foreman, who shall have power to swear or affirm witnesses to testify before them; and whoso duty it shall be, when the grand jury, or any twelve of them, find a bill of indictment to be supported by good and sufficient evidence, to indorse thereon ‘ a true bill;’ and when they do not find a bill to be supported by sufficient evidence, to indorse thereon ‘ not a true bill;’ and shall, in either case, sign his name as foreman, at the foot of said indorsement.” Purple’s statutes, p. 654, See. 3. Scate’s Comp., 681. The English law is nearly the same. 4 Black. Com., 305-6. The origin of this requirement is found in the practice in England of first preparing all bills that are submitted to the grand jury, they acting on no other offenses than those for which bills are so prepared; and such as they find to be true bills, they so indorse; but such as were not so found, were indorsed “ ignoramus,” or “ not found.” And while such practice existed, there was an evident propriety in so indorsing them. With us, although the letter of the statute would seem to require that bills of indictment should first be prepared and submitted to the grand jury before they act on the offense charged, the practice has always been not to draw the bill until *146the jury hear the evidence and agree to ijnd an indictment; the prosecuting attorney is then instructed to prepare it, and it is by them then returned into court in open court. The only object sought to be attained by indorsing an indictment “ a true bill,” was to distinguish it from such as were “ not found” by the jury; and if the reason for this practice has ceased, why continue it 7 It is a maxim that when the reason of alaw ceases, the law itself also ceases. Broom’s legalmaxims, 118. Until a bill is returned into court in open court, by the grand jury, and is received bythe court as such, it is not an indictment, although every juror may have voted for it, and it is indorsed by the foreman “a true bill;” and unless the records of the court show that it was so received by the court in open court, it will be void. Gardner et al. v. The People, 3 Scam., 84. McKinney v. Same, 2 Gilm., 540. Rainey et al v. Same, 3 Gilm., 71. Gardner v. The People, 20 Ill., 430. Our legislature have endeavored to do away with technical objections. “Every indictment or accusation of the grand jury, shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this code, or so plainly that the nature of the offense may be easily understood by the jury.” Purple’s statutes, p. 398, Sec. 208. Scates' Comp., 403. And again: “ All exceptions which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error, shall be sustained, for any matter not affecting the real merits of the offense charged in such indictment.” Purple’s statutes, p. 398, Sec. 209. Scates’ Com. p. 403, Sec. 163. But we are not without authorities on this question. In the case of Gardner et al. v. The People, 3 Scam., 84, the record of the indictment contained an indorsement “a true bill,” but it did not appear to have been signed by the foreman. The opinion of the court was delivered by Judge Douglas, who said: “All that is necessary to appear on the record is, that the grand jury returned the indictment, in open court “a true bill.” The indictment, in this case, having been received by the circuit court, and entered of record as a true bill, and neitherthe prisoner nor his counsel making any objection at that or any other time during the progress of the trial, we feel constrained, in the absence of all evidence to the contrary, to give full faith and credit to tire record.” In the case of The State v. Freeman, 13 N. H. Rep., 488, after a full investigation of all the authorities, the court held such indorsement was not indispensable. In the case of The State v. Davidson, 12 Vermont Rep., 300, an indorsement “True bill” was held to be a compliance with the statute which required it to be indorsed “A true bill.” In a late case, Commonwealth v. Smyth, 11 Cushing’s Rep., 473, the court, in a very able opinion, came to the same conclusion. They said: “ These words obviously constitute no part of the description of the offense charged in the indictment. They are not indispensable to the due and legal authentication of the action of the grand jury. Their absence can subject the accused to no inconvenience 'or disadvantage. The reason upon which they are elsewhere held to be essential, does not exist in our practice; and therefore this omission in an indictment is simply the omission of a form, which, if oftentimes found convenient and useful, is in reality immaterial and unimportant.”

If I am right in the assumption that the reason for this rule has long since ceased to exist—if a change in the practice has superseded the necessity or propriety of the requirement in question, unless the provision of the statute is imperative, I can see no propriety in adhering to it. If an indictment has been fairly and legally found, if the offense is charged in the manner required by the laws, if the court has received it from the grand jury as a true bill, and so entered it on its records, the omission of a useless form, the reason for which has, long since, become obsolete, ought not to intervene to prevent a fair and impartial trial on the merits.

An indictment was indorsed “A true bill, George S. Rice, Foreman,” while the records showed that another person was appointed foreman of the grand jury. In the absence of anything on the record to negative the supposition, this court will intend that the first foreman was discharged, and another appointed in his place. Mohler v. The People, 24 Ill., 26.

Opinion of the Court by

Justice Smith.

It appears from the record that the plaintiff in error was tried at a circuit court at the November term, 1825, in the county of Peoria, *146on a charge of having murdered a man by the name of Pierre Londri. Prom an inspection of the record, it also appears that the indictment, as set forth, was never found by the grand jury of that county ; no finding of any kind is made *147on the bill. It farther appears, that on the 15th of October, 1825, being the day of the commencement of the trial, nine of the petit jurors were impanneled and sworn, and permitted to go at large until the next day, when the panel was completed. After the trial had closed, an agreement in the following words was entered into, between the public prosecutor and the prisoner’s counsel, viz.: “ It is agreed by the attorney-general and the counsel for the defendant, that if in case the jury should agree on their verdict between this and to-morrow morning, that they may deliver their verdict to the clerk.” In pursuance of this agreement the clerk, on the morning of the 18th of October, 1825, as the record recites, presented to the court the following verdict, which had been handed him by the jury, viz.:

State of Illinois, Peoria county circuit court, November term, 1825. We, the traverse jury, in and for the county aforesaid, do find Nomaque, an Indian of the Pottawattomie tribe, guilty of the murder of Pierre Londri, November 17, 1825.

A motion was thereupon made for a new trial, on the ground of partiality in Dumont, one of the jurors, who, as is established by the oath of two persons, declared before he was sworn on the jury, that Nomaque was a damned rascal, and all those who took his part, and he would give five dollars to H. M. Gurry, to appear and assist to convict Nomaque of the crime charged, and pay it in surveying, or -hunting land.

The court below refused to grant a new trial, and an exception was taken to that decision. There are other objections which were made on the trial of the cause, but as they are not deemed important, we pass them by. No exception is taken in this court to the manner in which the proceedings come before the court, nor do we mean to say that any valid one could have been stated or urged.

Prom the preceding statement, which embraces, substantially, all the facts of importance in the case, the points which present themselves for consideration are, first, whether the prisoner could have been legally tried at all in the court below, it not appearing that there had been a finding of the grand jury, on the paper purporting to be an indictment; and whether he can now avail himself of the objection in this court, the question appearing not to have been made in the court below: Secondly, whether permitting the nine jurors impanneled and sworn, on the first day of the trial, to separate and go at large before the trial, would have formed sufficient cause for the circuit court to have arrested the judg*148ment, or granted a new trial: Thirdly, whether the evidence offered to show that Dumont had, previously to the trial, expressed his belief of the guilt of the prisoner, or of his hatred to him, and was therefore not an impartial juror, was sufficient to establish either point, and authorize a new trial: Fourthly, whether the consent that the jury might deliver their verdict to the clerk, could have - been legally made by the prisoner’s counsel; and whether that agreement dispensed with the personal appearance of the jury, and the rendering of their verdict in open court.

On the first point, we are of opinion, that it was necessary, in order to give the court the right to try the prisoner, that the grand jury should have indorsed their finding on the bill of indictment, verified by the signature of their foreman. This was indispensable, and as it appears not to have been done, the proceedings were coram nonjudice. This objection going to the power of the court to try the prisoner on that indictment; may, although not noticed or urged below, be now urged as cause of error, (a)

On the second point, we give no positive opinion, but it certainly was an act of great indiscretion in the court, to permit the jurors to go at large after they were sworn; because the reason of the rule, in keeping jurors together and apart from every other person, is as applicable, after they are chosen and sworn, and before the trial, as after they are charged with the’prisoner. The object certainly is, to keep them from receiving any other impressions in regard to the prisoner, than those which shall be made by the testimony given on the trial; if suffered to go at large at any time after they are elected to try the prisoner, the object might be wholly defeated. (b)

As to the third point, it is very apparent that the prisoner has been tried by one who, so far from standing perfectly indifferent between the parties, as the law emphatically requires, was in a condition the very opposite. The state of his mind must have led him to look on the testimony against the prisoner with every view to a conviction, and his feelings, it would seem, could alone have been pacified with the surrender to him, by his fellow jurors,.of his victim. We are *149therefore constrained to say, that the circuit court ought to have awarded a new trial on the production of the affidavits, as they show sufficient grounds discovered after the trial. (c), (2)

The fourth point is, we think, easily settled. The prisoner, in a capital case, must be considered as standing on all his rights. He can not be considered as waiving any thing, nor could his counsel do it for him. They possessed neither the power nor right, and if ever there was a case in which an observance of the rule should be required, the present is one. (3) The case of The People v. McKay, 18 Johns. Rep., 212, is conclusive on this point. The supreme court of New York, in that case say, that a paper purporting to be a venire, but without the seal of the court, is a nullity, and they declared that the prisoner in that case, who had been convicted of murder, and although he had challenged some of the jurors, who had been summoned under the supposed venire, did not thereby waive his right to object to the want of a venire. It is further said in that case, “ that it is a humane principle, applicable to criminal cases, and especially when life is in question, to consider the prisoner as standing on all his rights, and waiving nothing on the score of irregularity ”; and in that very case, the judge who delivered the opinion of the court relates a case analogous to the present. In Ontario county, New York, in 1814, a woman of color was indicted, tried, and found guilty of murder. The "jury had separated after agreeing on a verdict, and before they came into court, and on that ground a new trial was granted, and she was tried again. On the present occasion, this precise point is not necessary to be decided. The agreement extends no farther than to depositing the verdict with the clerk. It *150did not dispense with the personal appearance of all the jurors in court, and a rendition of the verdict by them. It can only be considered as authorizing the jury to separate when they agreed on their verdict until the next day, for their personal convenience. The prisoner had a right to have the jurors polled: this right could not have been exercised where the presence of the jurors was dispensed with. For a confirmar tion of the soundness of this doctrine, see the case of Blackley v. Sheldon, 7 Johns. Rep., 32, and 6 Johns. Rep., 68. Root v. Sherwood, where it is said, “ a verdict is not valid and final, until pronounced and recorded in open court; and before it is recorded, the jury may vary from their first offering of their verdict, and the verdict which is recorded, shall stand; and if the parties agree that a jury may deliver a sealed verdict, it does not take away the right of either to a public verdict.” If this be law, in a civil case, is it not important, under our system of jurisprudence, that it should be adhered to in a criminal case affecting life ? In the present case, the verdict was not even sealed; it was liable to alteration, and besides, the court had no legal evidence that it was the verdict of the jury. (4)

Starr and Blackwell, for plaintiff in error.

James Twrney, attorney general, for defendants in error.

While on this part of the case the court feel it their indispensable duty to reprobate the tolerance of a practice which might lead to the most dangerous consequences, in a case affecting the life of an individual, and to express their disapprobation of it, in the present instance.

The judgment of the circuit court of Peoria must be reversed, and a supersedeas awarded; and as a flagrant crime has no doubt been committed, and possibly by the prisoner, and in order that public justice may not be evaded, the court make this additional order, that the prisoner remain in custody for thirty days from this day (21st December instant) in order to enable the local authorities to take measures to bring him again to trial.

Judgment reversed.

(a)

In strict legal parlance an indictment is not so called, until it has been found “ a true bill ” by the grand jury; before that, it is named a bill, merely. Arch. Crim. Pl., 33.

(b)

If a jury separate, after a case is committed to them, and before they have agreed upon their verdict, and afterwards return a verdict, a now trial will be granted. Lester v. Stanley, 3 Day, 287. Howard v. Cobb, ibid., 309. 4 Johns., 293.

(c)

When one of the jurors, in a trial for treason, had previously made declarations, as well in relation to the prisoner personally, as to the general question of the insurrection, manifesting a bias or predetermination, a new trial will be awarded. United States v. Fries, 3 Dall., 515.

(2)

As to the misconduct of jurors, or disqualifications, see Sawyer v. Stevenson, ante., p. 24. Sellers v. The People, 3 Scam., 413. Vennum v. Harwood, 1 Gilm., 659. Guykowski v. The People, 1 Scam., 480. Greenup v. Stoker, 3 Gilm., 222.

If the parties choose to have their cause tried by a prejudiced juror, it is not for the court to refuse them that right. Van Blaricum v. The People, 16 Ill., 364.

If an officer having charge of a jury permits any member of it to drink spirituous liquors after he is sworn, (but before the case is submitted,) he may be punished for it, but the verdict will not be vitiated. Davis v. The People, 19 Ill., 74.

(3)

In the case of The People v. Scates, 3 Scam., 351, in speaking of the case of Nomaque v. The People, the court said: “ This case means nothing more than this—that a prisoner, in a capital case, is not to be presumed to waive any of his rights; but that he may, by his express consent, admit them all away, can he neither doubted nor denied. He may certainly plead guilty, and thus deprive himself of one of the most valuable rights secured to the citizen—that of a trial by jury.”

(4)

At common law, in all capital cases, the verdict must bo received in open court, and in the presence of the prisoner. In misdemeanors, it may be received in his absence. Holliday v. The People, 4 Gilm., 114.

The prisoner should bo personally present when the sentence is pronounced, ip. cases where corporeal punishment is a part of the sentence. Perry v. The People, 14 Ill., 500.