comes before them duly authenticated. If a grand juror has knowledge of facts material, he should be sworn as a witness and examined as such. State v. Cain, 8 N. C. 352.

The grand jury is an inquisitorial and accusing body; they hear only the evidence on behalf of the prosecution. The finding of the bill of indictment is in the nature of an inquiry or accusation which is afterwards to be tried when the accused will have opportunity to make defense. They must inquire whether there be sufficient cause to call upon the accused party to answer, but such inquiry must be founded upon proper evidence. They do not act in the light of evidence the accused may produce in his behalf upon his trial, but they should be satisfied of the truth of the charge contained in the bill of indictment, so far as the evidence goes. It is essential that witnesses should be sworn and compe tent. State v. Fellows, 3 N. C. 340. It was held when the indictment was found upon the single testimony of an incompetent witness, it should be quashed. And it has been repeatedly held that the indictment should be quashed where the same was found upon the evidence of witnesses not sworn. State v. Cain, 8 N. C. 352; State v. Roberts, 19 N. C. 540; State v. Lanier, 90 N. C. 714; State v. Ivey, 100 N. C. 539.

An indictment duly found affords a presumption of guilt. See Ex parte Ryan, 44 Cal. 555.

§ 251. Rule Observed in Framing.-Mr. Rapalje in his Criminal Procedure at section 87, says: "The general rule in framing an indictment is, that the offense shall be so described that the defendant may know how to answer it, the court what judgment to pronounce, and that a conviction or acquittal on it may be pleaded in bar to any other indictment for the same offense. The accused must be apprised of every ingredient of the crime with which he stands charged; and matters material to constitute the crime must be set forth with sufficient fullness to enable him to know with reasonable certainty what he has to meet, and so positively and distinctly as to leave nothing to intendment or implication." State v. Shirer, 20 S. C. 392; People v. Graves, 5 Park. Crim. Rep. 134; McConnell v. State, 22 Tex. App. 354, 58 Am. Rep. 647; United States v. Goggin, 1 Fed. Rep. 49; United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; State v. Mace, 76 Me. 64; Greene v. State, 79 Ind. 537; Kearney v. State, 48 Md.

16; Hunt v. State, 9 Tex. App. 404; Parker v. State, 9 Tex. App. 351; Houston v. State, 13 Tex. App. 595; Caldwell v. State, 14 Tex. App. 171.

The same well known author says at section 91, in speaking of disjunctive and conjunctive averments: "When independent clauses in a statute are connected by the conjunction 'or,' the prosecution need satisfy but one of the alternatives. An indictment in such a case may count upon all the clauses by substituting the copulative for the disjunctive conjunction, where the latter is used in the statute; but, at the election of the pleader, the indictment may count upon any one of the alternative clauses which independently define the offense. The use of the disjunctive 'or' is fatal in charging a criminal offense." Berlinger v. State, 6 Tex. App. 181; State v. Fancher, 71 Mo. 460; State v. Bregard, 76 Mo. 322; State v. Carr, 6 Or. 133; State v. Bergman, 6 Or. 341; State v. Dale, 8 Or. 229; State v. Price, 11 N. J. L. 241; State v. Carver, 12 R. I. 285; Hart v. State, 2 Tex. App. 39; State v. O'Bannon, 1 Bail. L. 144; State v. Flint, 62 Mo. 393.

An indictment must be so drawn as to exclude any assumption that the indictment may be proved and the defendant still be innocent. State v. Melville, 11 R. I. 418; State v. Smith, 11 Or. 205.

No principle of criminal pleading is better settled than this: "If the indictment contains one good count, it is sufficient, and this notwithstanding there may be defective counts. Phelps v. People, 72 N. Y. 365; People v. Davis, 56 N. Y. 95; Guenther v. People, 24 N. Y. 100; Crichton v. People, 6 Park. Crim. Rep. 363, 1 Keyes, 344, 1 Abb. App. Dec. 470; People v. Stein, 1 Park. Crim. Rep. 202; Baron v. People, 1 Park. Crim. Rep. 246; People v. Gilkinson, 4 Park. Crim. Rep. 26; LaBeau v. People, 33 How. Pr. 70; Reed v. Keese, 60 N. Y. 616; Lyons v. People, 68 Ill. 272; Latham v. Reg. 9 Cox, C. C. 516; Cook v. State, 49 Miss. 9; Estes v. State, 55 Ga. 131; Adams v. State, 52 Ga. 565; Chappell v. State, 52 Ala. 359; 1 Bishop, Crim. Proc. (2d ed.) § 1015; 3 Whart. Crim. L. (7th ed.) §§ 3208, 3209; People v. Gonzales, 35 N. Y. 60; Wood v. People, 59 N. Y. 117.

"An indictment containing a count charging murder in the common law form, if sustained by evidence, justifies a conviction for any of the degrees of felonious homicide known to the law. This

has been the well settled law in New York for upwards of half a century. People v. Enoch, 13 Wend. 159; People v. White, 22 Wend. 167; Fitzgerrold v. People, 37 N. Y. 413; Kennedy v. People, 39 N. Y. 245; Cox v. People, 80 N. Y. 500; People v. Conroy, 97 N. Y. 62, 2 N. Y. Crim. Rep. 565. This is the well settled rule in many of the other states. White v. Com. 6 Binn. 179; Fuller v. State, 1 Blackf. 63; Wicks v. Com. 2 Va. Cas. 387; Mitchell v. State, 5 Yerg. 340, 8 Yerg. 514; Com. v. Flanagan, 7 Watts & S. 415; Hines v. State, 8 Humph. 597; Gehrke v. State, 13 Tex. 568; Wall v. State, 18 Tex. 682, 70 Am. Dec. 302; Livingston v. Com. 14 Gratt. 592; Com. v. Gardner, 11 Gray, 438; People v. Dolan, 9 Cal. 576; Com. v. Desmarteau, 16 Gray, 1; Green v. Com. 12 Allen, 170; Witt v. State, 6 Coldw. 5; MoAdams v. State, 25 Ark. 405; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; State v. Thompson, 12 Nev. 140.

"The authorities with scarcely an exception, agree that it is absolutely necessary, in charging a felony, to charge that the act was feloniously done; that the substance of a good common-law indictment should be preserved. If one matter of substance may be dispensed with, another may be, and where is the limit to the innovation? This court has repeatedly held that, in indictments for felonies, the word 'feloniously' is substantive in charging the offense,-a word that has a fixed and well defined legal meaning, understood by bench and bar." Kaelin v. Com. 84 Ky. 354, quoting from Mott v. State, 29 Ark. 147. See also Bowler v. State, 41 Miss. 570.

§ 252. Former Strictness Relaxed.-The strictness with which indictments were formerly construed has been considerably relaxed; and it is right that it should be so, while the substantial rights of the accused are preserved. The natural leaning of the mind, observed Lord Kenyon (Sharwin's Case, 1 East, 341), is in favor of prisoners, and in the mild manner in which the laws of this country are administered it has been a subject of complaint, with some, that the judges have given way too easily to formal objections in behalf of prisoners. Lord Hale remarks (2 Hale, P. C. 193) that the strictness required in indictments was grown to be a blemish and inconvenience in the law, and the administration thereof; that more offenders escape by the over easy ear given to exceptions to indictments than by the manifesta

tion of their innocence, and that the greatest crimes had gone unpunished, by reason of these unseemly niceties. Chitty also remarks (1 Chitty, Crim. L. 171) that in criminal cases, where the public security is so deeply interested in the prompt execution of justice, it seems the minor consideration should give way to the greater, and technical objections be overlooked, and as a practical vindication of this view we will cite the well settled rule that verbal or grammatical inaccuracies, which do not affect the sense, are not fatal. Mere misspelling is not fatal. Whart. Crim. Pl. & Pr. § 273; Shay v. People, 22 N. Y. 317; State v. Gilmore, 9 W. Va. 641; State v. Hedge, 6 Ind. 333. If the sense be clear, nice exceptions ought not to be regarded. And even when the sense of the word may be ambiguous, this will not be fatal, if it is sufficiently shown by the context in what sense the phrase or word was intended to be used. Rex v. Stevens, 5 East, 244, 260; 2 Hale, P. C. 193; State v. Edwards, 19 Mo. 674; State v. Halida, 28 W. Va. 499.

§ 253. Names of Witnesses must be Indorsed upon Indictment. When an indictment is found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, must be indorsed upon the indictment before it is presented to the court. If not so indorsed the court must, upon the application of the defendant, at any time before the trial, direct the names of such witnesses as they appear upon the minutes of the grand jury, to be furnished to him forthwith. It is also the duty of the prosecution to call all material witnesses who were present at the commission of the crime, or any who had knowledge of it. "The commonwealth demands justice, not victims." Rice v. Com. 102 Pa. 408. This rule, however, does not require the prosecution to call respondent's wife as a witness, in order that she may be cross-examined, even though her name has been indorsed on the information as one of the witnesses for the prosecution. People v. Wolcott, 51 Mich. 612.

The rule effecting this subject as laid down in Roscoe is in the following language: "Although a prosecutor was never in strictness bound to call every witness whose name is on the back of the indictment, yet it is usual to do so, in order to afford the prisoner's counsel an opportunity to cross-examine them; and if the prosecutor would not call them, the judge in his discretion might. The judges, however, have now laid down a rule, that the prosecutor

is not bound to call witnesses merely because their names are on the back of the indictment, but that the prosecutor ought to have all such witnesses in court, so that they may be called for the defense, if they are wanted for that purpose. If, however, they are called for the defense, the person calling them makes them his own witnesses." See Scott v. People, 63 Ill. 508; Keener v. State, 18 Ga. 194; Hill v. People, 26 Mich. 496; People v. Bonney, 19 Cal. 426.

The prosecution can never, in a criminal case, properly claim a conviction upon evidence which expressly or by implication, shows but a part of the res gesta, or whole transaction, if it appear that the evidence of the rest of the transaction is attainable. Hurd v. People, 25 Mich. 405, 415.

"Every witness," he said, "who was present at a transaction of this sort, ought to be called; and even if they give different accounts, it is fit that the jury should hear their evidence, so as to draw their own conclusion as to the real truth of the matter." Reg. v. Holden, 8 Car. & P. 609.

The rules above stated as to the witnesses named on the back of the indictment, in no way compel the state's attorney to place them on the stand. State v. Cain, 20 W. Va. 679. All that the rule requires is that such witnesses should be in court. Reg. v. Cassidy, 1 Fost. & F. 79. The above paragraph should be read in connection with the case of Wellar v. People, 30 Mich. 23, where it was held reversible error in the trial court not to compel the states' attorney to call an eye witness to the homicide whose name was indorsed on the back of the indictment. Another exception is found as to rebutting witnesses. It would be useless because impossible for the prosecution to forecast the nature of the direct testimony or to even surmise the nature and scope of the rebutting evidence. Hence witnesses may be called on rebuttal whose names do not appear on the back of the indictment. State v. Ruthven, 58 Iowa, 121.

§ 254. Evidence of Time and Place. The precise time of the commission of an offense need not be stated in the indictment, and hence, the prosecution is not called upon to prove the precise time under the familiar rule, that it is only required to produce such evidence as is necessary to support the indictment. This statement, however, must be taken with this additional qualification that evidence must be produced tending to show that the