
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1802.
    The State v. Creight.
    An indictment may be amended by the grand jury, with leave of the court, at any time before their finding is recorded, and they have left the court: and the caption of an indictment may be amended by the minutes of the court, or by what appears on the bill itself, even after conviction, and after motion in arrest for the defect, [vide State v. Johnston, cited within. State v. Williams, 2 M‘C. 301. Vandyke v. Dare, 2t Bailey, 65. State v. Cook, Charleston, February, 1837.]
    The statement in an indictment, that the presentment of the jury is “ upon their oaths,” is a part of the caption ; and if it has been omitted, may be inserted, even after conviction. [25.]
    Judgment can be arrested only for defects appearing on the record ; and an objection which must be established by extrinsic proof, as that the. amendment of a defect in an indictment was made after bill found, is not a good ground for a motion in arrest. [vide State v. Scott, 1 Bailey, 270.]
    The defendant wás tried, and convicted, upon an indictment for. horse stealing, in the district of Kershaw ; and upon a motion in arrest of judgment, the following questions were made : 1. Whether an indictment is good if it appears, that it was not found upon oath until after it was returned into court, and then the jury, upon the defect being remarked to them, subjoined “ upon their oaths” in the margin, but in such mauner as not to assort with any words or sen. tence in the body of the indictment. 2. Whether if the defect afore. ¡ said should be fatal, the verdict can be supported by the second count in the indictment, w hich stated that “ the jurors aforesaid upon their oath's aforésaid,” find the same.
    It was argued in behalf of the prisoner, 1. That the jury, after returning their presentments, or the bills, into court, could not alter them. But it was answered, and resolved, by the court, that the jury, with leave of the court, may alter a bill found by them, at any time before their finding is returned, and recorded, and they are sent, or have gone, out of court. 2. It was contended, that the marginal note, subjoined by the jury, could not be taken as part of the bill, for it could not be read in connexion with any part of it, or be consolidated with it; and if so, then it did not appear that the finding was upon oath. 3. shat the words, “upon their oaths aforesaid,” contained in the second count, could have no effect, or meaning ; inasmuch as the words, “oaths aforesaid,” being rela-' l‘ve t0 some oath formerly supposed to be stated, when no such oath was stated before in the indictment, and having nothing therefore to which it could relate, or by which it could be explained, must be rejected as inoperative. The majority of the court wero of opinion, that allhough it should appear in the introductory part of the indictment, as in the caption, and notin the substantial and’ charging part, that there is a defect or want of certainty, any defect in form or substance, yet after verdict the court ought not to'arrest the judgment; as such prefatory matter constitutes no essential part of the indictment.
    The opinion of Judge Trezevawt was as follows :
    The prisoner was convicted upon an indictment for horse steal.’, ing, in November, 1802; and his counsel moves'to arrest the judgment upon the following grounds :
    1. That when the grand jury returned this"bill into court, it did not appear,-upon the face of it, that they had found the bill on' oath ;> and that the words, “ upon their oaths present,” were inter-' lined by the foreman, without the knowledge or consent of his' brethren, after he had delivered in the bill.
    2. That these words, “ upon their oaths present,” were not interlined in the body of the indictment, but in the margin of it, and-that, too, without any mark of reference, so-as to shew where th«;ce. words ought to have been inserted.
    to. That although the second count states that the bill was found by ,Lo jurors mentioned in the first count, “ upon their oaths aforesaid,” yet those words can have no meaning, because the word “ C3.th” was omitted in the first count, lo which the second refers.
    I am of opinion that the first objection is not a proper ground to be taken in arrest oí judgment, inasmuch as it does not appear upon the face ot the record, but the truth of it is to be ascertained by other evidence. Nor do I think it can avail any thing in any other shape; because the cierk reports to the court, that the omission was noticed as soon as the bill was handed in to him by the foreman, and it was returned to him immediately, while all his brethren were in their bar; and he then made the amendment, which -he had a right to do.-
    The opinion which I feel bound to give on the second and third objections is not founded upon the English law, but upon the case of the State v. James Johnston, decided in Charleston, while I was at the bar. A bill of indictment had been found against him in September term, 1796, and-traversed; and he-was tried and' convicted upon it in January term, 1797. The offence was challenging Mr. C. C. Schutt. On behalf of the defendant, a motion in arrest of judgment was made on several grounds ; one of which was, that the caption of the indictment did not mention either the day, or the year, when the court was held, at which the bill was found : and the case was argued in February, 1797, by myself, for the defendant, and by Mr. Pringle, attorney general, for the State, before Burke, Grimke, Waties, and Bay, Justices.
    For the prisoner, the following authorities were relied upon, and others were cited : 2 Hawk. P. C. c. 25, sec. 127. Ib. c. 10, see. 9. Leach, 362.
    For the State, the attorney general contended, that the caption was the work of the clerk, and not his; and that the clerk might make it up at any time, and could amend it from the words, “ Sep. tember sessions, 1796,” endorsed by himself upon the indictment at the time the grand jury returned it to him. And he cited Crown Circ. Comp. 117, 118. 6th Ed. and 2 Hawk. P. C. c. 23, sec. 97, and 98.
    For the prisoner it was urged, in vain, that even according to the authorities cited by the attorney general, if the amendment could be made at all, it could not be made after the conviction, nor after the term in which the bill was found. The court unanimously overruled this objection. Burke, and Waties, Justices, said they did not conceive themselves bound to support all the subtle distinc. tions taken in the English books; “ especially,” said Burke, J., i‘ where the defendant’s life is not affected.”
    Ever since that decision, I have considered the point settled in this country, that the caption of an indictment may be made up or amended, at any time, from the minutes of the clerk, made on the bill, or from what may appear upon the face of the bill. And I do pot feel at liberty to enquire, whether it is, or is not, consistent with the decisions of the English courts. Now the exceptions taken in the second and third grounds of this motion, relate to the caption, for the caption ends with the words, “ upon their oaths present.” 2 Hawk. P. G. c. 25, sec. 126. And as the caption may be amended at any time, if the amendment already made by the foreman, is not sufficient, which, I doubt, it may still be amended. I am, therefore, of opinion, that the motion should be overruled.
   Brevard, J.

I hold the same opinion as my brother Trezevant, and for the reasons he has assigned, in regard to the first objection. With respect to the other objection, as I think the grand jury were authorized to amend the bill at any time, provided'it was before the Pr’soner pleaded, and before they were discharged ; and the amendment may be considered to be their act, and made at that court when the bill was before them; and as I incline to think that the amen(lmen!; ought to be considered sufficient to shew, that the bill was found upon oath, and to be the amendment of the grand jury j and as I think, too, that the words, “ upon their oaths aforesaid,” in the second count, may be taken and construed with a reference to the amendment, making it still more certain that the bill was found by the jury upon their oaths ; therefore, I am of opinion that the motion should be overruled.

I rather incline to this opinion on account of -the difficulty I fee1! in subscribing to the doctrine said to be established by the deter, mination of the court in the case of the State v. Johnston, which J have never heard of till very lately, and have had no opportunity |o consider. It does not appear to me, that because the caption is ho part of the indictment itself, being only the style or preamble ; and because it may be amended, on motion, so as to make it agres with the original record at any time during the term at which it is found; that, therefore, a material error in the caption is not a fatal objection in arrest of judgment. See King v. Fearnley, 1 T. R. 316.

Grimke, J.

After stating the case, and. remarking that J ohnsok, J., who presided at the trial, had corrected the statement of the prisoner’s counsel, by mentioning that the insertion of the words in the margin of the indictment, was by the grand jury before the bill was delivered into court, said ; I am of opinion that the motion should be overruled. I found my opinion on the determination in the case' of the State v. Matthews, in Charleston, in January, 1802. It was resolved by the court in that case, that the part of the indictment here in question was part of the eaption, and might be filled up by the court at any time during the sitting pf the court. •

Motion refused.  