CHAPTER XIII.

[C. V. CH. COVII.]

OF PRESENTMENTS, INDICTMENTS AND INFORMATIONS, AND PROCESS THEREON.

Of presentments, indictments or informations; and the

§ 1. Prosecutions for offences against the Commonwealth, unless otherwise provided, shall be by presentment, indictment or information. Acts 1847-8, p. 124, ch. 20, § 1;

A presentment made in the ordinary way by a grand jury is regarded, in the practice at common law, as nothing more than instructions by the grand

Presentment, Indictment and Information.

§ 2. An information may be filed upon a presentment or indictment by a grand jury, or upon a complaint in writing, verified by the oath of a competent witness; but no person

jury, to the proper officer of the court for framing an indictment for an offence which they find to have been committed. 4 Bl. Com. 301; 1 Chitty Cr. L. 162. When the indictment has been prepared by him, it is submitted to them; and upon their finding it a true bill, the prosecution commences upon that indictment. The presentment merged in the indictment ceases and becomes extinct. If, however, the officer of the court, who is the representative of the Crown, and whose concurrence and co-operation in the prosecution are always required, declines framing an indictment upon these instructions, the presentment ceases to exist for any purpose. In the practice of Virginia, the presentment has been allowed an efficay, not known at common law in England. It has been allowed, for many purposes, to stand in the place of an indictment; or to stand as the foundation for further proceedings against the party presented.

The

presentment, moreover, seems, in Virginia, from a very distant period, to have been made the foundation for a summons to show cause why an information for the offence presented, should not be filed against the accused. No authority has been found in the English books that warrants such an use of the presentment. These pur

poses of presentments and these proceedings upon them in our practice were doubtless, within the view of the revisors of our new Code, when that general provision was made, that prosecutions for offences against the Commonwealth, unless otherwise provided, shall be by indictment, presentment or information. Acts 1847–8, ch. 20, § 1. It seems clear that the presentment has, in Virginia, the character in itself of a criminal proceeding, until it is embodied and merged in an indictment for the same offence, or in an information filed upon it; and may stand in the place of an indictment, on which the prosecution for a misdemeanor may proceed, without indictment or information, as was decided in Towles' case, 5 Leigh 743. Per Lomax, J. in Com. v. Christian, 7 Gratt. 635–637.

b In a prosecution for a felony or misdemeanor, if the indictment is lost at any time before the trial, though after arraignment and plea, the party cannot be tried. Bradshaw v. Com., 16 Gratt. 507.

A felony cannot be prosecuted by information. Com. v. Barrett, 9 Leigh 665.

The judgment of the court overruling a motion to quash a presentment, affords no good reason against granting leave to file the information. Com. v. Christian, 7 Gratt 631.

The issuing process against the defendant to answer the presentment, furnishes no good reason against granting leave to file the information. Idem.

shall be put upon trial for any felony, unless an indictment'

If in motions for leave to file an information, there is any likelihoood of injustice, or even anything inequitable, being inflicted upon the defendant, the court, in the exercise of its discretion, will always refuse the leave. Lomax, J. in S. C. 640.

It is a well-settled principle, that the court will not, in any case, grant an information, where the prosecutor has already preferred an indictment, and the grand jury found a true bill, although it was quashed for insufficiency. Idem; Anon. 8 Mod. 187,

A presentment of a grand jury, to be a proper foundation for an information, must contain every matter necessary to render the act imputed to the defendant unlawful, and the supposed offence must be described with at least reasonable certainty. Bishop v. Com., 13 Gratt. 785.

According to the English practice, a criminal information at the Crown office is only allowed to be filed upon motion, and a rule to show cause grounded upon a proper and legal affidavit; and this affidavit should be full and explicit should disclose all the material facts of the case, and contain all matters necessary to criminate the defendant. 5 Bac. Abr. (Bouv. ed.) "Informations," (D.) p. 180; 1 Chit. C. L. 587; Arch. C. P. 73, 74. Our act of Assembly expressly requires the leave of the court on a rule to shew cause; but, by our practice, a previous presentment by the grand jury often comes in place of the affidavit required by the English rule. Where, however, it is thus sought to be made the ground of the rule to shew cause, it must, like the affidavit, contain enough to shew that an offence has been committed. No matter material to render the act imputed to the defendant unlawful can be omitted, and the supposed offence must be described with at least reasonable certainty. If it be defective in these respects, the presentment cannot avail for any legal purpose whatever. Lee, J. in S. C., 13 Gratt. 786.

Upon a rule to shew cause why an information should not be filed, the defendant appears and moves the court to quash the presentment, on the ground that it does not charge any offence against him; but the motion is overruled. The information is then filed, and he pleads "not guilty:" and, on the trial, there is a verdict and judgment against him. Upon a writ of error to the appellate court, he may object to the insufficiency of the presentment. S. C. 13 Gratt. 785.

An indictment being quashed, because one of the grand jurors who found it was not a freeholder, the indictment is not a sufficient foundation for a rule upon the party to shew cause why an information should not be filed against him. Com. v. Ayres, 6 Gratt. 668.

Generally speaking, when a presentment is made, the order of the court is, that the party be summoned to appear at the next court, to shew cause why an information should not be filed against him. But in some cases the proceedings are of a more summary character. 3 Rob. Prac. (old edi.) 108.

1 This section does not authorize the trial of a prisoner for felony, except

shall have first been found by a grand jury in a court of competent jurisdiction. If the accused be in custody, or has been recognized or summoned to answer such presentment, indictment or complaint, no other process shall be necessary; but the court may, at its discretion, issue process to compel the appearance of the accused. 1 R. C. p. 611, § 45; Acts 1847-8, p. 142, § 2; 1866-7, p. 926-7, § 2; 1870, p. 401.

§ 3. In a prosecution for a misdemeanor, the name of the prosecutor, if there be one, and the county or corporation of his residence, shall be written at the foot or the presentment, indictment or information, when it is made, found or filed; and, for good cause, the court may require a prosecutor to give security for the costs, and if he fails to do so, upon an indictment, found by a grand jury in a court of competent jurisdiction. Matthews v. Com., and Garner v. Com., 18 Gratt. 989.

2 Under the act, 1 Rev. Code, ch. 169, § 45, p. 611, which required as well the "title or profession," as "the name and surname of the prosecutor, and the town or county in which he shall reside," to be written at the foot of the information before it be filed, and of every bill of indictment before it be presented, it was held, that the omission to write the title or profession of the prosecutor at the foot of an information or indictment, is no ground of exception, either by motion to quash or plea in abatement. The act is only directory to the officers of the court. Com. v. Dever, 10 Leigh 685. And in Wortham v. Com., 5 Rand. 669, 672, it was said by Brockenbrough, J. with reference to the same statute, in delivering the opinion of the court: "The first remark to be made is, that this law cannot properly be denominated a penal statute; it neither defines, nor creates any criminal offence, nor prescribes a punishment for one. It merely directs how certain proceedings shall be carried on in trespasses and misdemeanors, preparatory to their introduction into court. There is no reason why, in construing such an act, we should not stick to the letter, nor why we should not carry into effect the obvious intention of the legislature,"

It is not necessary to insert the name of the prosecutor at the foot of the indictment for a misdemeanor, if it appears that the indictment was found true on the evidence of a witness sent to the grand jury, either at their own request, or by direction of the court, and this whether there was a previous presentment or not. Wortham v. Com., supra.

What words are sufficient to shew that one is a prosecutor. See Haught v. Com., 2 Va. Cas. 3; Com v. Dove, Ibid 29.

After verdict, the prosecutor cannot be allowed to shew by parol evidence, that he was called on by the grand jury, and did not voluntarily give the information. Com. v. Dove, supra.

3

dismiss the prosecution at his costs. (1 R. C. p. 611, § 45; p 615, § 66. Acts 1866-7, p. 927, § 3.)

§ 4. If any proceeding for an offence, had or moved at the instance of a prosecutor, be dismissed, or the accused discharged from the accusation, the court or justice before whom the proceeding is, may give judgment against the prosecutor in favor of the accused for his costs. (1 R. C. p. 611, § 46. Acts 1847-8, p. 143, § 4; 1866-7, p. 927, § 4.)

§ 5. In an indictment or accusation of perjury, or subornation of perjury, it shall be sufficient to state the substance of the offence charged against the accused, and in what court or by whom the oath was administered which is charged to have been falsely taken, and to make an averment that such court or person had competent authority to administer the same, together with the proper averments to falsify the matter wherein the perjury is assigned, without setting forth any part of any record or proceeding at law or

3 The prosecutor's insolvency or inability to pay costs is, ordinarily, good cause for ruling him to find security for such payment; but if, in the opinion of the court, public justice requires that the prosecution should proceed, it may refuse to dismiss the indictment, though the prosecutor be insolvent, and security for costs be not given. Com. v. Hill, et als, 9 Leigh 601. 4 A voluntary informer ought to be made a prosecutor, and liable for costs in case of failure; but one who is compelled to be an informer, cannot be considered a prosecutor. Wortham v. Com., 5 Rand. 669.

In a prosecution for a misdemeanor at the instance of a voluntary prosecutor, the defendant files a plea in abatement, that one of the grand jurors who found the indictment was not a freeholder; and the issue made up on that plea is found for the defendant, and the indictment quashed: Held, the court should give judgment for the costs against the prisoner. Com. v. St Clair, 1 Gratt. 556.

The informer and prosecutor is a competent witness for the prosecution, though liable for costs in case the defendant is acquitted. Gilliam v. Com. 4 Leigh 688; Baker's case. 2 Va. Cas. 353.

As to what constitutes perjury, see post, ch. 17, § 1, and note.

6 An indictment for perjury must shew that the evidence which the defendant gave was material. And therefore if the evidence which the defendant gave before the grand jury is not shewn clearly on the face of the indictment to relate to an offence committed within the county, the indictment is defective. Com. v. Pickering, 8 Gratt. 628.