
    John Steele v. The State
    Appeal from Harris County.
    The 15th section of the act “regulating juries,” approved 4th of May, 1840, which requires the foreman of the grand jury “ to indorse on the back of each present, ment or indietmsnt, the name or names of the witnesses for the prosecution, upon whose evidence the presentment or indictment was found, certifying thereto, as “foreman,” is merely directory. Such indorsement is not a constituent part of the indictment or of the finding of the grand jury,'and is not essential to its validity.
    At the fall term, 1846, the appellant was indicted for keeping and exhibiting a faro bank for gaming.
    The foreman of the grand jury indorsed the names of two witnesses on the back of the indictment and certified that it was upon their testimony the bill was found. The defendant filed a plea in abatement, averring that one of the witnesses entered upon the indictment by the foreman was not before the grand jury, and did not testify in the cause. To this plea the state demurred, and the demurrer was sustained.
    The defendant was convicted and judgment entered accordingly, from which this appeal was taken.
    
      Bucldey, for appellant.
    The demurrer ought to have been overruled and the plea in abatement sustained by the court below.
    The only point in the cause is the false indorsement upon the indictment, by the foreman of the grand jury. By the indorsement it seems that the bill was found upon the joint testimony of two witnesses. The demurrer to the plea in abatement admits that the in-dorsement is untrue. This indorsement, under the statute, is material to make the finding valid. It is an additional requisite, without which no person named in the bill could be required to answer the indictment. Statutes of the kind must be strictly construed against the state, and liberally in favor of the accused — more so than indictments at common law. 4 Port. 401; 9 id. 495.
    The fact that there were two witnesses indorsed on the indictment does not change the case at all.
    Suj>pose there had been but one, and it was admitted that no witness was before the grand jury. Now, as the statute requires, imperatively, that the witnesses upon whose testimony the bill is found shall be indorsed on the indictment, in this case it must be conceded that the finding would be bad, because not done in accordance with law.
    The case at bar is equally strong in principle, as if there had been but one witness; because, the entry on the indictment, that the testimony of two witnesses was taken, justifies the conclusion that the evidence of neither one of them, alone, would have enabled the jury to find the bill; but that one witness proved one fact, not in itself amounting to the charge made; and the other witness proved another fact, which, taken in connection with the evidence of the other, made out the offense; or, that it required the joint testimony of both, to justify the finding. The demurrer admits there was but one witness before the grand jury, and the indorsement shows that the evidence of both was necessary to make out the charge. The case standing thus, the judgment should be arrested, unless the court wholly disregard the requirements of the statute. Acts 1st Leg. p. 174, sec. 15.
    
      Attorney General, for appellee,
    in support of the demurz’er, contended:
    1st. The act of the legislature, requiring the foreman of the grand jury to indorse on the indictment the names of the witnesses upon whose testimony it was found, is merely directory, and any error in so doing, or even omission to make the indorsement, would not so vitiate the indictment as to justify its being quashed'.
    2d. The motion shows that the indictment might have been found upon the testimony of the other witness.
    3d. Proceedings before the grand jury are at all times conducted secretly, and it is against the whole policy of the system to permit an investigation of what occurred in the grand jury room.
   LipscoMb, J.

The appellant was indicted under the statute for keeping a faro bank. He pleaded in abatement that, from the in-dorsement on the indictment, it purported to be found on the joint testimony of John klcPeynolds and B. N. Smith, when, as the defendant was' informed and believed, Smith did not testify before. the grand jury; and he further pleaded not guilty. To the plea in abatement there was a demurrer, and the demurrer was sustained. The jury found him guilty and judgment was rendered on their verdict. The error relied on is, that the court below ought to have sustained his plea in abatement. By the 15th section of an act of the first session of the legislature of the state, to regulate juries, p. 174, it is provided “ that the foreman of the grand jury shall have power to swear any witness to testify before the grand jury, and it shall be his duty to indorse on the back of each presentment or indictment, the name or names of the witnesses for prosecution upon whose evidence the presentment or indictment was found, certifying- thereto as foreman.” The provisions of the law just cited are clearly in their character directory to the foreman. It is a direction to him to do an act that does not require the concurrence of the grand jury. It may be done without their knowledge and consent; it is not a constituent part of the indictment itself, nor of the finding of the grand jury; no more so than an indorsement made by the clerk when it was received that it was in open court.

Should it be held that it is essential to the indictment that the indorsement should be made, the consequence would be that the foreman of the grand jury could, by accident or design, destroy the validity of an indictment after it had been duly found, by omitting to indorse the names of all the witnesses on it, and this he could do if opposed to the return, without the knowledge of the rest of the jury. That such could have been the intention of the law would require the clearest and most unequivocal language to justify the conclusion. Such, however, was not the intention and such are not the legal consequences of the indorsement. We have said, that it is merely directory to the foreman, and several conclusions doubtlessly influenced the legislature in the enactment of the law. It afforded the prosecuting attorney a convenient reference on the trial of the names of the witnesses to prove the offense charged. It enabled the accused, by knowing the names of the witnesses, not only to make his objection to their competency, but to prepare for discrediting them should they not be worthy of credit. This had become more necessary, since, by the change of the law the witnesses were not sworn in open court, but by the foreman of the grand jury; and we have no doubt but that the accused had a right to insist on the names of the witnesses being indorsed, before he could be required to plead; and it would seem if any of them were incompetent, that he ought to be allowed the benefit of excepting to such want of competency, because the finding of the grand jury ought to be on legal testimony. But in the case before us there was no objection to the competency of the witness who was sworn, and tbe plea of abatement is founded on tbe fact of there being two names indorsed on tbe indictment, when, in truth, only one of them bad given evidence. This, in a matter not requiring two witnesses, could not, in the very remotest degree, affect tbe rights of tbe accused. Tbe name of the witness who bad testified bad been furnished by tbe indorsement, thereby affording to him all tbe advantages that could have been contemplated by the-law, and tbe mere fact of another name being there also could not in any wise abridge his rights. It was no ground of objection and there was no error in sustaining the demurrer.

Judgment affirmed.  