not indorsed by the foreman of the grand jury, as required by the statute, is bad for want of such indorsement, on a motion to quash.1 And where the indictment upon which appellant was tried and convicted was not indorsed by the foreman of the grand jury, the judgment must be reversed.21 The fact that the number of the indictment and the number of the case are different, is immaterial, where it affirmatively appears that the indictment set out in the transcript was returned into court, and defendant pleaded thereto.3 And where, by inadvertence, the county attorney indorsed on a substituted information. a different number than that by which the case was originally entered upon the docket, and the defence therefore objected to the substitute, held, that the mistake should have been corrected upon the motion of the county attorney, or by the trial court upon its own motion. And an indictment indorsed on the back in printing with the words "A true bill," which indorsement is signed by the foreman of the grand jury as such foreman, it is a compliance with the statute in that respect.5 6 It is immaterial on what part of the bill the foreman's signature appears. Error in the form of the indorsement of the indictment by the foreman of the grand jury, which could not have prejudiced the rights of the defendant, will be disregarded. Á statute requiring a noting on the indictment of the names of the witnesses, is mandatory, and, if disregarded, it is sufficient to quash indictment; but the names of all witnesses need not be noted.8 Thus, where an indictment had indorsed upon it the 1. Cooper v. State, 79 Ind. 206; State v. Bowman, 103 Ind. 69; s. c., 1 West. Rep. 138; Johnson v. State, 23 Ind. 32; Hea cock v. State, 42 Ind. 393; Beard v. State, 57 Ind. 8; Strange v. State, 110 Ind. 354; s. c., 8 West. Rep. 928; Ind. Rev. Stat., 1881, § 1669. Omission of Clerk. - No exception to the omission of the clerk of the circuit court to put the usual file mark on an indictment which has been pleaded to, and of which the record shows due presentation by a grand jury in open court, can be raised primarily in the appellate court. Willingham v. State, 21 Fla. 761. The Minutes of the Evidence upon which an indictment is found are sufficiently filed with the clerk, under Iowa Code, § 4293, when they are handed to him, and he receives them to be kept on file in his office. The indorsement of the filing by the clerk, although proper, is not necessary. State v. Briggs, 68 Iowa, 416. It is not necessary to indorse a verdict upon an indictment at all; and if indorsed upon a wrong indictment, judgment may nevertheless be entered upon the one on which the trial was had. O'Bryan v. State, 48 Ark. 42. 2. Strange v. State, 110 Ind. 354; s. c., West. Rep. 928. 8 Iowa Code; Private Prosecution; Duty of Grand Jury. Section 4292 of the Iowa Code, requiring the grand jury, when an indictment is found at the instance of a private prosecutor, to indorse that fact on the indictment, is directory merely, and such indorsement is not essential to the validity of the indictment. State v. Briggs, 68 Iowa, 416. 3. Mergentheim v. State, 101 Ind. 567; s. c., 5 West. Rep. 851. 4. Stiff v. State, 21 Tex. App. 255. 6. State v. Bowman, 103 Ind. 69; s. C., 1 West. Rep. 138; 1 Bish. Cr. Proc. (3d ed.) § 698. 7. Thus, where the foreman signed above the words, "A true bill," and not the bill with the words "Foreman," the indorsement is sufficient on a motion to quash the indictment. State v. Bowman, 103 Ind. 69; s. c., 1 West. Rep. 138; Johnson v. State, 23 Ind. 32; Heacock v. State, 42 Ind. 363; Cooper v. State, 79 Ind. 272. 8. Andrews v. People, 117 Ill. 195; s. C., 4 West. Rep. 139. Vide infra, ÍÏÏ. 2, i.; and IV., I. names of three witnesses, the presumption must be indulged, that it was found upon their evidence, and that the grand jury, in making the indorsement, complied with the mandate of the statute.1 1. Return of the Grand Jury.-Indictments found by a grand jury should be presented to the court by their foreman, in their presence, and are filed, and remain as public records. 2 A return by the grand jury, "at true bill," is sufficient.3 The record showing that the grand jury came into open court, and, through their foreman, returned an indictment, etc., it is a full compliance with the statute.4 Under Mo. R. S. § 1802, if the grand jury fail to indorse on the indictment the names of the witnesses on whose evidence the same was found, it will be a good ground for a motion to quash. State v. O'Day, 89 Mo. 559; s. c., 6 West. Rep. 449. Determining Identity. Where the name of "Mrs. H." was indorsed on the indict ment as one of the witnesses, and the State on the trial offered "Mrs. Mary E. H." as a witness, and it was objected that her name was not indorsed on the indictment, held, that it was the duty of the court to determine whether "Mrs. H." and "Mrs. Mary E. H." were the same person, and that, in so doing, it was competent to consult, not the indorsement upon the indictment, but the minutes of the evidence; and, further, that, since the court overruled the objection, it must be presumed that it did consult such minutes, and therein found sufficient evidence. State v. Briggs, 68 Iowa, 416. Code, § 4293. 1. State v. O'Day, 89 Mo. 559; s. c., 6 West. Rep. 449. 2. Barb. Cr. L. 317. But where an indictment is found against a person for a felony where he is not in actual confinement, it is not open to the inspection of any one except the district or prosecuting attorney, until the defendant therein has been arrested. 2 N. Y. Rev. Stat. $$ 39, 40. 3. Epps v. State, 102 Ind. 539; s. C., 3 West. Rep. 380. Indictment not returned by Grand Jury. A special plea which alleged that the indictment was never returned in the court by the grand jury, but was brought in by their bailiff and handed to the clerk, who thereupon entered it on the minutes of the court, at which time none of the grand jurors were present, but which did not allege that the bailiff making the return was not the duly qualified officer of the grand jury, sworn in accordance with law, or that the indictment was tampered with or altered in any respect, or that, in consequence thereof, the accused suffered injury or detriment, was held demurrable, and properly stricken out by the court. The history and reason of the manner of returning indictments is discussed in Danforth v. State, 75 Ga. 614. A special plea to the effect that the indictment was improperly delivered to the court, being brought into the court by the bailiff of the grand jury, but not alleging that it had been tampered with, or was out of the bailiff's hands from the time he left the grand jury room until he delivered it to the court, or that there was any improper conduct on his part, has been properly stricken out on demurrer. Davis v. State, 74 Ga. 869. Where the indictment itself states that the grand jury was duly impanelled, sworn and charged, the record sufficiently discloses that it was lawfully impanelled. Walter v. State, 105 Ind. 589; s. c., 2 West. Rep. 759, 760; Alley v. State, 32 Ind. 476; Powers v. State, 87 Ind. 144; Stout v. State, 93 Ind. 150; Epps v. State, 102 Ind. 539; Padgett v. State, 103 Ind. 550; s. c., I West. Rep. 584. An indictment is good which purports to be found by the grand jurors "upon their oath or affirmation," some of whom affirmed. State v. Adams, 78 Me. 486; s. c., 3 New Eng. Rep. 243, 244; Lincoln v. Taunt. Cop. Mfg. Co., 65 Mass. (11 Cush.) 440; Horne v. Haverhill, 113 Mass. 344. Information for a Felony cannot be lodged against a defendant at a term of court to which he has been recognized to appear after discharge of the grand jury without finding an indictment. State v. Boswell, 104 Ind. 541; s. c., 2 West. Rep. 726. He may be again arrested, a preliminary examination may be again had, and he be placed under recognizance. State v. Boswell, 104 Ind. 541; s. c., 2 West. Rep. 726. 4. Rev. Stat. 1879, sec. 1797. State v. Payton, 90 Mo. 220; s. c., 7 West. Rep. 129. A failure of the record to show the return is not ground for motion in arrest of judgment where the cause assigned is that the facts do not constitute the offence.1 IV. Process and Appearance. The grand jury having found a true bill, process is issued to compel the attendance of the accused to answer the charge. This is not required if he is already in custody, or surrenders to his bail: in such case he may be tried as soon as is convenient. If he is in custody of another court for some other offence, the course is to remove him by a writ of habeas corpus, and bring him up to plead.2 If, however, an indictment has been found in the absence of the accused, he having fled or secreted himself so as to avoid the warrant of arrest, or has not been bound over to appear at the session of the court in which the indictment is found, then process must issue to bring him into court. This process in ordinary cases is regulated by statute in the various States of the Union. In most, if not all, of the States, when an indictment or information is filed, a warrant issues from the court in which it is filed, unless the defendant is already in arrest on bail. From and after the return day of a served writ,* such defendant is held to be continuously present in court, till final disposition of the prosecution. Another mode of proceeding is, for the court before whom the indictment is found to issue a bench warrant for the arrest of the accused, and to bring him immediately before such court. Process on informations is similar to that on indictments. The appearance of the accused having been enforced in this way, or voluntarily made, the next step is to arraign him. After arraignment, and before plea, the defendant makes any objections which he may have to the form of the indictment, the constitution or conduct of the jury finding the indictment, and the like. V. Arraignment 5 and Plea. The arraignment, or requiring the prisoner to answer to the charge of an indictable offence, consists of three parts: (1) calling the prisoner to the bar by name; (2) reading the indictment to him; (3) asking him whether he is guilty or not of the offence charged. If several defendants are charged in the same indictment, they ought all to be arraigned at 1. Padgett v. People, 103 Ind. 550; s. c., 1 West. Rep. 584; followed in Walter v. State, 105 Ind. 589; s. c., 2 West. Rep. 760. 2. Harris, Cr. L. 361. 3. In Kentucky, in cases of misdemeanor, a summons issues, unless the court orders a warrant. (Criminal Code, sect. 148.) Process on Corporation. In Ohio (74 Ohio L. 337) and Iowa (Rev. Stat. 1877, p. 672) a corporation is brought into court by summons. 4. In Iowa, from and after two days after service. 5. Ad rationem; ad reson; a resu. to hold up his hand for the purpose of identification is now generally disused, unless it be adopted in order to distinguish between two or more prisoners who are being arraigned at the same time. Nor is the prisoner now asked how he will be tried, it being taken for granted that he will be tried by a jury. He is to be brought to the bar without irons, or any manner of shackles or bonds, unless there is evident danger of escape, or other good cause. In felonies he must be placed at the bar of the court, though in misdemeanors this does not seem necessary. See R. v. Lovett, 9 Carr. & P. 462; Harris, Cr. L. 370, 371. the same time. It is usual, for convenience' sake, to arraign several prisoners immediately in succession, and then to proceed to the trial of one, the rest being put down for the time.1 The indictment having been read to the prisoner, the clerk, or other proper officer of the court, demands of him whether he is guilty or not guilty?" Thereupon the prisoner will either (1) move to quash the indictment, (2) demur to the indictment, (3) stand mute, (4) confess by saying that he is guilty, or (5) he will plead to the indictment. 2 An arraignment and plea are essential and necessary preliminaries to a legal trial upon an indictment; and the record must show that the defendant was arraigned, or that he waived it, and that a plea was entered for him. 5 3 The record failing to show arraignment or waiver or plea, or that a plea was entered by or for him, the judgment will be reversed. 1. Harris, Cr. L. 371. 2. People v. Bradner, 107 N. Y.; s. c., 9 Cent. Rep. 172; 4 Bl. Com. 322; Bishop, Cr. Proc. $ 684; 3 Wharton, Cr. L. § 3154. A Verdict in a case where there has been neither arraignment nor plea is a nullity (Schoeffler v. State, 3 Wis. 823; People v. Corbett, 28 Cal. 328; People v. Gaines, 52 Cal. 479; Graeter v. State, 54 Ind. 159; Grigg v. People, 31 Mich. 471; Anderson v. State, 3 Pin. (Wis.) 367; State v. Saunders, 53 Mo. 234; 1 Tex. App. 408. Contra, State v. Cassady, 12 Kan. 550, and the Judgment rendered thereon is invalid. State v. West, 84 Mo. 440. Separate Arraignment; Joint Trial; Judgment. - Where defendants were separately arraigned, although tried together, the verdict is a separate finding as to each; and judgment may be affirmed as to one, and reversed as to the other. State v. Stair, 87 Mo. 268; s. t., I West. Rep. 765. Indiana Practice. — Although no statute of the State requires either an arraignment or a plea in a criminal case, before a justice of the peace, yet the proper practice requires defendant to enter a plea to the charge. Johns v. State, 104 Ind. 257; s. c., 2 West. Rep. 276. Texas Practice. The record entry of the arraignment of the defendant, conform ing substantially to No. 685 of Willson's Criminal Forms, is sufficient that the indictment was read to the defendant before he was required to plead to it, and this constitutes an arraignment. Smith v. State, 21 Tex. App. 277. 3. Hanson v. State, 43 Ohio St. 376; S. C., I West. Rep. 331; Steagard v. State (Tex. App.), Dec. 1886. 4. Hicks v. State, 111 Ind. 402; s. c., 10 West. Rep. 261; Steagard v. State (Tex. App.), Dec. 1886. 5. Hicks v. State, and Steagard v. State, supra. 6. Hicks v. State, 111 Ind. 402; s. c., IO West. Rep. 261; Bowen v. State, 108 Ind. 411; s. c., 6 West. Rep. 897; Shoffner v. State, 93 Ind. 519; Tindall v. State, 71 Ind. 314. Where the record in a criminal cause fails to disclose affirmatively that a plea to the indictment was entered, either by or for the defendant, such record, on its face, shows a mis-trial, and that the proceedings were consequently erroneous. Hicks v. State, 111 Ind. 402; s. c., 10 West. Rep. 261; Bowen v. State, 108 Ind. 411; s. c., 6 West. Rep. 897; Johns v. State, 104 Ind. 557; s. c., 2 West. Rep. 276; Shoffner v. State, 93 Ind. 519; Tindall v. State, 71 Ind. 314; Fletcher v. State, 54 Ind. 462; Graeter v. State, 54 Ind. 159. Arraignment in Misdemeanor. — In an action for a misdemeanor, where the record fails to show that defendant was arraigned for trial, judgment will be reversed. State v. Vanhook, 88 Mo. 105; s. c., 4 West. Rep. 423; State v. Jacques, 68 Mo. 260; State v. Saunders, 53 Mo. 234. Arraignment in Felony. A trial for forgery, had without arraignment or plea, is irregular; and a conviction and sentence must be set aside. Ray v. People, 6 Cal. 231. Arson. In a case where the defendants were prosecuted for the crime of arson by an information which alleged that the offence was committed on a day subsequent to the date of its filing, under which information they were arraigned, and pleaded not guilty; and, on the trial, the information was amended by charging the offence to have been committed prior to the filing of the information; and the trial thereupon proceeded without an arraignment or plea If arraignment had been made in the place where the indictment was found, it need not be made at the place to which the trial is removed,1 though a double arraignment would not be error. When a defendant has been once arraigned, and has pleaded to an indictment on a former trial, re-arraignment is unnecessary.3 The arraignment in cases of felony must be by the defendant in person. If the defendant, when arraigned, asks for and obtains time to plead, he waives any defect in the statutory details of the arraignment. And where, after reading the indictment, the counsel for the accused causes it to be entered by the court, the plea of not guilty, it is a sufficient arraignment. Where the indictment was not read to the defendant, nor a copy of it, with the indorsements, delivered or tendered to him, nor was he then or thereafter asked to plead, there was no arraignment.7 The defendant does not waive arraignment and plea by submitting to a trial introducing witnesses, and allowing the case to be argued on his behalf. But an arraignment is not void because of the omission to inform defendant of his right to have counsel, if the court so informed him during the arraignment.9 1. Motion to quash. At common law, a motion to quash was addressed to the discretion of the court; 10 and courts differed in their practice as to the cases in which the motion should be granted, and as to the stage of the procceding at which it could be presented. It has been remarked that, "(1) in general, this motion could be properly presented as a speedy means of disposing of the indictment, where the indictment for defect in substance was bad on general demurrer; but where the indictment was for a grave offence, a motion made on this ground would be overruled, unless the defect were obviously clear; (2) where the indictment was defective in form, in which case the motion was a substitute for a 3. State v. Boyd, 36 La. An. 374. 4. People v. Redinger, 55 Cal. 298. v. Corbett, 28 Cal. 328; McQuillen v. State, 8 Smed. & M. (Miss.) 587. 9. People v. Villarins, 66 Cal. 228. 10. And to-day the question whether or not an indictment will be quashed, for the reason that different felonies are charged in different counts, is much in the discretion of the court. In no case should an indictment be quashed because of misjoinder, unless it clearly appears upon the face of the indictment that different and distinct crimes are charged. Different counts cannot be joined in the same indictment; and unless the prosecutor declines to elect, but manifests a purpose to insist upon a conviction upon each count, the indictment will not be quashed. Glover v. State, 109 Ind. 391; s. c., 7 West. Rep. 565; Hamilton v. People, 29 Mich. 173; Rex v. Kingston, 8 East, 41; 1 Bish. Cr. Proc. 447. |