{
  "id": 2083723,
  "name": "STATE v. JOSEPH R. BRANCH",
  "name_abbreviation": "State v. Branch",
  "decision_date": "1873-01",
  "docket_number": "",
  "first_page": "186",
  "last_page": "190",
  "citations": [
    {
      "type": "official",
      "cite": "68 N.C. 186"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T18:26:25.985368+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. JOSEPH R. BRANCH."
    ],
    "opinions": [
      {
        "text": "Pearson, C. J.\nWe will pass by the objection made to. the mode of instituting this proceeding, and also the point that the announcement of their finding by the grand jury, is, in contemplation of law, recorded at the instant it is announced, on the principle, that in a civil action the plaintiff' cannot take a non-suit after the jury has announced its verdict, for it is in law recorded eo instanti ; and the corollary drawn therefrom, that as the bill has been returned \u201c not a true bill,\u201d the same bill, nor a bill charging the same offence cannot be passed on by the same grand jury.\nWe give no opinion on this corollary, but we can see no objection to the practice, that after an indictment has been returned \u201c not a true bill,\u201d the State\u2019s Solicitor, upon a suggestion to the Court that he has procured further evidence,. may be allowed to send another bill to the same grand jury,.. charging the same offence.\nThese points are passed by for the purpose of putting our \u2022 decision upon the main question, that it to say, has a Judges the right to require a grand jury to have the witnesses on the part of the State examined publicly ?\nThere is nothingfin our law books, and no tradition of the profession to show that such has ever been the practice -or the course of the courts in this State; and we are of opinion that the ruling of his Honor is an innovation not warranted by the law of the land.\nThe power of the Judge to require a grand jury to come into open court and have the witnesses for the State examined, is not only opposed to immemorial usage, but is not sustained either by principle or by authority.\nThe province of a grand jury is, not to try the party, but to inquire whether he ought to be put on trial; and the purpose is, to save the citizen the trouble, expense and the disgrace of being arraigned and tried in public on a criminal charge, unless there be sufficient cause for it. To this end it is provided by the Constitution, \u201c No person shall be put on trial, except upon a bill of indictment found by a grand jury.\u201d This provision of the Constitution was aimed at a prerogative of the crown, under pretence whereof a citizen could be put on trial upon a charge of a criminal offense, upon the information of the crown officer, whereby the good citizens were often times exposed to the scandal and disgrace of being tried in public, when, in truth, there was no sufficient cause to suspect their guilt.\nThus it is seen that the purpose of this provision in the Declaration of Rights, is to protect citizens from the scandal rand disgrace of being arraigned and put on trial in public, '\u25a0unless there be sufficient ground for it.\nHow does this innovation upon ancient usage comport with this clause of the Declaration of Rights ? It defeats it in toto. If the man is to be exposed without inquiry as to the sufficiency of the evidence, to the scandal and disgrace .\u2022of a trial in public, it may as well be done on the information of the State\u2019s Solicitor; for the protection of a grand jury amounts to nothing if the citizen is to be first exposed to scandal and disgrace by a public examination of the witnesses on the part of the State, in order to see whether he ought to be. exposed to the scandal and disgrace of being tried in public on a criminal charge; and, if upon the public examination of the witnesses for the State, he has no right to cross examine, and no right to offer witnesses to' contradict the witnesses of the State, or to prove their bad-character, and to be defended by counsel, it would be better for him to have a trial at once, upon information, where he has the right \u201c to confront the accusers and witnesses with other testimony and to have counsel for his defence,\u201d\" instead of being, in the first place, put in the condition of a victim tied to a stake, while his reputation is being tortured to death. If the witnesses for the State are to be examined in public, upon the inquiry of the grand jury, in all fairness the accused should be allowed to cross examine and to offer witnesses to contradict or explain, and to have the' benefit of counsel. So the result would be two trials in public instead of an inquiry and one trial, provided the bill is-returned by the grand jury \u201c a true bill.\u201d To avoid this absurdity, his Honor took the other horn of the dilemma,\u2019 and refused to allow the accused to cross examine, and of course to offer witnesses in contradiction, &c., and \u201ctied the-victim to the stake.\u201d He was subjected to bear the disgrace-of whatever the witnesses might swear agrinst him, and could not be heard.\nIn either point of view, this procedure is opposed by the principles of the common law, which means \u201c common; sense.\u201d\nAs to authority, the only case cited to support this innovation is that of the Earl of Shaftsbury, State Trials, 772. A perusal of that ease will satisfy any one that it ought not to-be made a precedent, for the reason, that it was in the time of Charles II., 1181, when the Duke of York, with the counftenance of the King (his brother), had joined the Roman. \u25a0Catholics, and the attempt of the Jesuits to make that \u201c the established religion \u201d was stoutly opposed by the people, and -by no others more zealously than the citizens of London, \u25a0of whom the grand jury was drawn; and who, although compelled to hear the witnesses for the crown examined in public, because '\u201c such was the pleasure of the King,\u201d were '\u201c stout enough \u201d to cross examine the witness for the crown, \u00a1and after being charged, that it was not their business to .pass upon the credit of \u00a1the witnesses of the crown, (that should be left for the jury of trial,) had the manhood to refuse to find the bill,-and to indorse \u201c ignoramus \u201d ; for which, \u00a1as the report says, -there was such applause and loud cheering that nothing could be heard, and the Judge retired.\nThis case was never drawn into a precedent in England, and the practice there has ever since been for grand juries in their sessions, which are held in their own room, under an oath, \u201c the State\u2019s counsel, your fellows, and your own, you will keep secret,\u201d to examine such witnesses as are indorsed on the bill, \u201csworn and sent,\u201d and the return is made, \u201c not a true bill,\u201d unless at the least, twelve of the* grand jury would convict upon the evidence before them.\nThere is not the slightest reason, to believe that the practice of examining witnesses before a grand jury in public was -ever \u201c in force and in use in the colony of North Carolina\u201d ; very certainly,'such has not been the practice in the State of North Carolina, and it must-be rejected as inconsistent with the genius of a\"republican government. Why examine the witnesses for the State in public, without the right of cross examination and of confronting the witnesses, unless it be tto expose the accused to scandal and disgrace, else to browbeat the grand jury .and influence \u201c the finding,\u201d not in respect to the case, but in respect to the fact ?\nThere is error. This will be certified.\nPjer Curiam.\nJudgment accordingly.",
        "type": "majority",
        "author": "Pearson, C. J. Pjer Curiam."
      }
    ],
    "attorneys": [
      "Conigland, and Batchelor & Son, for petitioner.",
      "Hargrove, Attorney General, and Cox, contra."
    ],
    "corrections": "",
    "head_matter": "STATE v. JOSEPH R. BRANCH.\nA Judge of the Superior Court has no right to require a grand jury to have the \u2022witnesses on the part of the State examined publicly.\nCriminal action certified to this Court in obedience to a writ of Certiorari, issued upon the petition of the defendant at the last term; an appeal having been refused by Moore, tT, at Spring Term, 1872, of Halifax Superior Court.\nThe facts, pertinent to the only question decided in this Court, as alleged in the defendant\u2019s petition for a Certiorari, and contained in the \u201c case stated,\u201d filed by his Honor, and sent up with the transcript of the record, are substantially:\nThat at Spring Term, 1872, of Halifax Superior Court, an indictment, charging the defendant with having committed an affray, and with an assault on one Spier Whitaker, was sent by the Solicitor to the grand jury. That the said Whitaker and one Hardy were the witnesses sent to, and examined by the grand, jury, who, after the examination \u201cofferred to return the bill,\u201d indorsed, \u201c not a true bill,\u201d which the Court refused to receive. His Honor ordered the grand jury to be seated in the jury box, and proceeded to examine in open Court before them, (the grand jury,) Hardy and Whitaker. Upon the evidence of these witnesses, his Honor charged the grand jury, that if the testimony was believed, it was their duty to find a true bill; and that after this, charge from the Court, the grand jury returned the bill indorsed, \u201c A true bill.\u201d\nThe defendant moved to quash the bill of indictment, assigning as ground for such motion, the facts above stated.. His Honor refused the motion, and required the defendant to plead. From this order, the defendant prayed an appeal to the Supreme Court. The Court refused to allow the appeal.\nConigland, and Batchelor & Son, for petitioner.\nHargrove, Attorney General, and Cox, contra."
  },
  "file_name": "0186-01",
  "first_page_order": 196,
  "last_page_order": 200
}