Chappel vs. The State.
The record must show, that an idictment found by the grand jury, and endorsed thereon a true bill, by the foreman, was returned into court by grand jury, otherwise the conviction cannot stand.
The defendant was convicted of petit larceny, from which he prosecuted an appeal in error to this court. The facts upon which the opinion of the court is founded, are stated in the opinion delivered by the Chief Justice.
W. K. Turner and J. Montgomery, for the plaintiff in error, contended,
That the judgment rendered against Chappel must be reversed, and he be discharged, because the record does not show that the indictment upon which he was convicted, ever was found by the grand jury. The endorsement upon the indictment, “a true bill” is not evidence of that fact, unless in addition thereto it has been retened into court. The latter is essentially necessary, in order that the court may see that the required number.of grand jurors agreed upon finding the bill. They cited 1 Chitty’s Criminal Law, 266.
J. M. Howry, Solicitor of the 12th dist. for the State.
The error relied upon in this cause, is, that it does not *167appear that the grand jury appeared in open court,, under the care of their officer, and returned a true bill against the defendant. I assume the position, that in Tennessee, it is not necessary to malte a separate entry on the records of a court trying felons, that “the grand jury appeared in open court and presented a bill of indictment against A B for larceny,” if enough appears on the record without it, to authorize the court to proceed.
In England, it is the practice for some court inferior to that of the King’s Bench, to prefer a bill, of indictment against the person accused; before the trial, application is made to the court of King’s Bench for a writ of certiorari, which is awarded, commanding the record to be sent up, and a trial of the cause is had in that court. 9 Yin. Abr. 517.
In such case, the indictment alone is sent up, but something else must appear to show the court above that the bill was regularly found; for this purpose, the clerk makes out an historical statement of the proceedings had in the court below previous to the finding of the- indictment, and which is the return to the writ of certiorari. 1 Yer. 216.
Under the English practice, it would be necessary that an entry should be made on the minutes, that “the grand jury appeared in open court, and returned a bill of indictment,” &c. because tire bill of indictment is not found in the same -court that tries the cause. The trying court looks into the record sent up to it,, and if all things do not appear necessary to authorize tire court above to proceed legally, they cannot intend any thing against the prisoner.
This rule is not applicable in Tennessee. Our judicial system is regulated by statute; and its organization is quite different from that of England. We have but few courts in comparison with the English courts, and in felonies, we have but one court that has jurisdictton to try them. The same court that empannels the grand jury, to find the bill, tries the cause. All takes place under the judicial eye of the same court. When a decision takes place in *168^iat court’ l^e Partl'es are estopped from proceeding any further, except by appeal to this coart, which only has jurisdiction to reverse for errors affecting the merits of the decision. Act 1809, ch. 126, sec. 10.
This court will presume in favor of the legality of the proceeding in the court below. If the fact is not with the presumption, it rests on the defendant to show it by his sealed exceptions. Bennet vs. State, 2 Yerger, 473; Conner vs. State, 4 Yerger, 141.
But admitting for the present, that the English practice is applicable here in every particular, this is not such an error or omission as to authorize this court to reverse this judgment. In England, the only necessity for the grand jury to appear in open court with a bill of indictment, is^ that the clerk may ask them “if they agree the court shall amend matters of form, altering no matter of substance?” this form is necessary, in order to enable the court to correct any mistake the clerk may malee, because they have no authority to change the form of the accusation without the consent of the accusers. 1 Chit. Crim. Law, 266.
It is believed that enough appeal’s in this record to satisfy this court that the defendant was legally tried and convicted. The caption reciting the title of the' court, the time and place, when and where, and by whom held, is all regular. The venire facias was returned by the sheriff, executed on the lawful number of competent jurors, out of whom a grand jury of inquest were elected, empan-neled, sworn and charged, with J. S. their foreman, and retired under the care of B. W. an officer. The record also sets out a bill of indictment in proper form, charging the defendant with larceny, which was dated the same term of the court that the grand jury was empanneled, with the proper endorsement thereon of the witnesses having been sworn in open court and sent to the grand jury to give evidence. The prosecutor marked thereon and signed by the clerk, with an endorsement in these words: “atrae bill,” and signed “John Studdart, foreman *169of tbe grand jury;” the endorsement, “a true bill,” made upon the bill, becomes part of the indictment, and renders it a complete accusation against the' prisoner. 1 Chit. Cr. Law, 266.
If the indictment is a part of the record, with its endorsements, and we are bound to believe it is from the authorities I have consulted, there can be no doubt left on the minds of this court, talcing the “indictment in connection with the other parts of the record, but that the grand jury found “a true bill” against the defendant, and that he was legally covicted.
The rules of law laid down by this court in the case of M’Clure vs. the State, are many of them analogous to this case, and unless they are overruled, must lead to the affirmance of this judgment. M’Clure was indicted in the circuit court of Lincoln county, for killing M’Bride; was found guilty of murder, and sentence of death was passed upon him. He prosecuted his writ error to the supreme court, where the judgment was affirmed. One of the errors assigned was, that the record did not show that the grand jury that found the bill had been sworn. The only evidence of the fact was in the indictment itself returned by the grand jury. It was in the usual form, and recited “the grand jurors,” &c. “elected, empanneled, sworn and charged,” &c. The court say in that case, “there can be no doubt upon reading the record, but that the grand jury were sworn.” In this case, I think from reading the record, there can be as little doubt that the grand jury found the bill, as there was in that case, that the grand jury had been sworn; the only evidence in either 'case, is found in the indictment. The chief justice tells us in M’Clure’s case, (1 Yer. 217), that “it is true the record must show that the indictment was found by a grand jury, and that it was found upon oath, because this is substance, all this, our forms of indictment show.”
*170J respectfully refer the court to the opinions delivered by judges White and Catron in M’Clure’s case, (judge Peck dissented). Much light is thrown upon the proceedings in criminal cases, in those opinions, in England and in this country. A difference in the practice of the two countries will be perceived, as to the mode of prosecuting criminals; this difference mainly grows out of the local organization of the courts in the two countries, and therefore the English practice will be found not entirely applicable in this country.
Catron Ch. J.
delivered the opinion of the court.
In the record before the court, a bill of indictment is found, endorsed c‘a true bill,” and this endorsement signed by the foreman of the grand jury; but no evidence or entry appeal’s of record, showing that the indictment was returned into court by the grand jury, and the question is, can the conviction be permitted to stand.
The accusation against the defendant is complete in form, by the face of the indictment, and the endorsement on it of “a true bill,” signed officially by the foreman of the grand jury; which endorsement, when the indictment is returned into court, received and filed, becomes part of the indictment. But when do the indictment and endorsements become part of the record? Here, as in England, when the jury has found the bill, and the proper endorsements are made, it brings them publicly into court, and the clerk calls the jurors by name, who answer, to show that at least twelve are present, for less cannot find the bill; and they are asked if they have agreed upon any bills, when, by their foreman, the jury presents the bills to the clerk, who asks them if they agree; the court shall alter as to matters of form, &c. (1 Chitty’s Cr. L. 266).
Were this form not observed, great irregularity might creep into practice, with grand juries; and in many in*171stances, less than twelve, in fact, agree to the- finding. Therefore, without an exception known to this court, the practice in this State has been to make a record of the fact, that the bill has been found, to wit: “this day the grand jury returned into open court, a bill of indictment against A B, for larceny, a true bill, and retired to consider of further presentments,” &c. The court is of opinion, this practice is in accordance with the safety of the citizen, and that no less evidence than record evidence can be received to establish the fact, that the accused has been indicted in due form by the grand jury, the returning the bill into court being a judicial act. No evidence existing that the present bill of' indictment was found by the grand jury, the defendant could not be legally tried upon it, nor can -he be punished, more than if the indictment had not been found a true bill, and merely filed by the solicitor. The judgment must be arrested, and the defendant be committed, or bound to appear at the next circuit court for Hickman county, to answer for the charge alleged against him.
Judgment arrested.