ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.
MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
Neither the testimony nor the instructions are preserved in the record, and the only questions presented for our consideration arise on the indictment.
It is objected, in the first place, that the indictment lacks the endorsement, "a true bill" as well as the signature of the foreman of the grand jury. No objection was made on this ground in the Circuit Court, either before or after the trial. There is in the Federal statutes no mandatory provision requiring such endorsement or authentication, and the matter must, therefore, be determined on general principles. It may be conceded that in the mother country, formerly at least, such enforcement and authentication were essential. "The endorsement is parcel of the indictment and the perfection of it." King v. Ford, Yelv. 99. But this grew out of the practice which there obtained. The bills of indictment or formal accusations of crime were prepared and presented to the grand jury, who, after investigation, either approved or disapproved of the accusation, and indicated their action by the endorsement, "a true bill" or "ignoramus," or sometimes, in lieu of the latter, "not found," and all the bills thus acted upon were returned by the grand jury to the court. In this way the endorsement became the evidence, if not the only evidence, to the court of their action. But in this country the common practice is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment. Thus they return into court only those accusations which they have approved, and the fact that they thus return them into court is evidence of such approval, and the formal endorsement loses its essential character. This matter is fully discussed by Beasley, C.J., in State v. Magrath, 44 N.J. Law, 227,228; by Moncure, President of the Court of Appeals, in Price v. Commonwealth, 21 Grat. 846, 856; and by Merrick, J., in Commonwealth v. Smyth, 11 Cush. 473, 474, the latter saying, "this omission in an indictment is simply the omission of a form, which, if often times found convenient and useful, is in reality immaterial and unimportant." In each of these cases it was held by the court that the lack of the endorsement was not necessarily and under all circumstances fatal to the indictment. In
Bish. Crim. Proc. sec. 700, it is said: "In the absence of a mandatory statute, it is the better view that both the words 'a true bill' and the signature of the foreman may be dispensed with, if the fact of the jury's finding appears in any other form in the record." See also State v. Creighton, 1 Nott & McC. 256; State v. Cox, 6 Ired. (Law) 440. In Gardner v. People, 3 Scammon, 83, 87, the court held that the signature of the foreman, though a statutory requirement, would be presumed if the indictment was recorded.
Nevertheless, as it is not an unvarying rule for the grand jury to return into court only the indictments which they have found, it is advisable, at least, that the indictment be endorsed according to the ancient practice, for such endorsement is a short, convenient, and certain method of informing the court of their action.
The defect, however, is waived if objection is not made in the first instance and before trial, for it does not go to the substance of the charge, but only to the form in which it is presented. There is a general unanimity of the authorities to this effect. In State v. Agnew, 52 Arkansas, 275, it was held that a statute requiring an endorsement of "a true bill" signed by the foreman was directory; that objection to a lack of such endorsement was waived unless made before pleading. In McGuffie v. State, 17 Georgia, 497, while holding that the usual practice of endorsement was advisable, the court said that the objection on account thereof was "an exception which goes rather to the form than to the merits of the proceeding," and too late after trial. See also State v. Mertens, 14 Missouri, 94; State v. Murphy, 47 Missouri, 274; State v. Shippey, 10 Minnesota, 223; People v. Johnston, 48 California, 549; and Wau-kon-chaw-neek-law v. United States, Morris, (Iowa), 332.
In this connection reference may be made to section 1025, Rev. Stat., which reads:
"No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection
in matter of form only, which shall not tend to the ...