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(1856) 3 Sneed (Tenn.) 459; Doug- Where in a proceeding to forfeit a lass v. Brandon (1873) 6 Baxt. (Tenn.) criminal bond on which the defendant 58 (whether alteration appeared on was surety, the answer acknowledged face of instrument is not stated); the signing of the bond by the dePeevey v. Buchanan (1914) 131 Tenn. fendant, but alleged that there was 24, 173 S. W. 447 (recognizing rule); at that time no obligee or penalty set Wells v. Moore (1855) 15 Tex. 521; forth, and that the name of the obligee Muckleroy v. Bethany (1864) 27 Tex. and the amount of the penalty were in551; Richers v. Helmcamp (1878) 1 serted therein in the defendant's abTex. App. Civ. Cas. (White & W.) 373; sence, the court in Brown v. Colquitt Heath v. State (1883) 14 Tex. App. (1884) 73 Ga. 59, 54 Am. Rep. 867, held 213 (dictum).

that this was a special plea, and not Where the defendant, by a special a general plea of non est factum; and plea of non est factum, admits the that the burden of sustaining it was execution of the instrument, but on the defendant. seeks thereby to set up material al- And in Brown v. Phelon (1853) 2 terations which are not apparent on Swan (Tenn.) 629, the court said: the face of the paper, it is incumbent "It is well settled that where the plea on him to establish the fact that the is non est factum generally the proof instrument, although apparently un- lies upon the plaintiff; but, on the altered, is in fact materially different other hand, where the plea alleges from the writing actually signed. that the deed is void for some special Craig v. National City Bank (1921) matter, the proof is on the defendant. 26 Ga. App. 128, 105 S. E. 632.

And this distinction rests upon the In Richers v. Helmcamp (1878) 1 principle that the obligation of provTex. App. Civ. Cas. (White & W.) 373, ing the fact in issue lies upon the the court said: “It was not necessary party who substantially asserts the for the plaintiff to allege in his peti- affirmative. Here, the defendant in tion for certiorari that the notes sued his plea affirmatively avers the alteraon were not altered by him, because tion of the instrument, and therefore the qualified plea of non est factum he must prove it.

This case admits that defendant executed the does not fall within the rule that notes; and hence the burden of prov- where the alteration appears on the ing their alteration, if they were al- face of the instrument, as an erasure, tered, rests on the defendant.

interlineation, or the like, the law imWhen a defendant in a suit on a note, poses upon the party who claims under bond, or other instrument of writing the instrument the burden of explainalleged to have been executed by him, ing such alteration. There is nothing denies its execution under oath, in upon the face of this instrument, so this, that he avers a material altera- far as appears from the record before tion after the execution of the same us, indicating any alteration, or castwithout his consent, such qualified ing any suspicion upon it; and, thereplea does not put in issue the signing fore, aside from the special averment of the instrument, nor throw the bur- of the plea, no explanation is necesden of disproving the alteration on the sary.” plaintiff, but it lies with the defend- The conclusion that the burden of ant to prove the alteration.”

proof of alteration is on the defendAnd it is said (dictum) in Heath v. ant has been reached also under a State (Tex.) supra, that where the general plea of non est factum. .Thus, alteration is not an apparent one, the it was said in Bouldin v. Barclay burden of proof is upon the party (1898) 121 Ala. 427, 25 So. 827: pleading it to prove such alteration, "Where to an action on a note or bond and in such a case even a plea under the defendant interposes a special oath setting up non est factum does plea of non est factum, not denying not throw the burden of disproving his signature, but setting up alterathe alteration upon the other party. tion after execution, the burden is up

on him to show such alteration, unless case, and entitles him to recover unthe paper itself furnishes some evi- less the defendant proves alteration." dence or indication of having been And in Iowa City State Bank v. Miltampered with, some badge of the al- ford (1917) – Tex. Civ. App. - , 200 leged fraud, so to speak. . . This S. W. 883, where the defendant in an upon the presumption in favor of action on a note pleaded non est facgood faith and against fraud, where tum, the court said: "The interpothe paper bears no evidence to the sition of said sworn plea merely puts contrary, that the paper is as it was the plaintiff on proof, aliunde the inwhen it was signed. ... The same strument itself, of its execution. But presumption against alteration, when when the plaintiff has made a prima there is no appearance of it on the facie showing as to the execution, face of the paper, attends the note on then the burden of proof rests upon a general plea of non est factum. The the defendant, who relies, upon the averment of that plea is that the note claim that the signature to the insued on was not executed by the de- strument was not in fact made by him fendant, or by anyone authorized to or under his authority, or that there bind him in the premises. Where the has been a material alteration of the note does not appear to have been instrument since it was executed, to tampered with, this averment prima establish such defense. The presumpfacie is a denial of the signature, and tion is that documents regular on does not inform the plaintiff that reli- their face have been duly executed. ance will be had upon an alteration. . The verified plea of nonexecuHe, therefore, makes a prima facie tion is not evidentiary in character, case against the plea on proof of sig- but merely robs the instrument innature, and he may then put the note volved, purporting to be executed by in evidence; and, if the defendant of- the party sought to be charged, of its fers no evidence, the presumption own probative effect to establish its against alteration in connection with execution. But when, aliunde the inproof of signature entitles him to strument itself, the plaintiff makes judgment, just as, where there is a out a prima facie case as to the execuspecial plea of alteration only, the ad- tion, it devolves upon him who would mission of signature and presumption deny it to overcome the prima facie against fraud makes out the plaintiff's showing."

R. E. H.



G. O. CHANCE, Appt.

New Mexico Supreme Court - April 12, 1923.

(- N. M. , 221 Pac. 183.) Grand jury -- power of court to review finding.

1. District courts are without power to review the evidence submitted to a grand jury upon which an indictment was returned, to determine its sufficiency or insufficiency, existence or nonexistence, legality or illegality, as the finding of such grand jury with regard to such questions is conclusive.

[See note on this question beginning on page 1479.] Appeal - interference with finding. will not be disturbed on appeal.

2. A verdict of a jury which is See 2 R. C. L, 194; 4 R. C. L. Supp. supported by substantial evidence 90.] Headnotes by BRATTON, J.

(Botts, J., dissents.)

(- N. M. -, 221 Pac. 183.) APPEAL by defendant from a judgment of the District Court for Lea County (Ryan, J.) convicting him of embezzlement. Affirmed.

The facts are stated in the opinion of the court.

Messrs. J. C. Gilbert and E. de P. (Noll v. Dailey) 47 L.R.A.(N.S.) 1207 Bujac, for appellant:

and note, 72 W. Va. 520, 79 S. E. 668; That the grand jury returning the Lee v. State, 66 Tex. Crim. Rep. 567, indictment was without competent 40 L.R.A.(N.S.) 1132, 148 S. W. 567; legal and relevant evidence upon United States v. Cutler, 5 Utah, 608, which to predicate the indictment, it 19 Pac. 145; State v. Lewis, 38 La. Ann. having nothing before it but an in- 680; Bryant v. State, 79 Ala. 282; State dictment returned by a former grand v. Chandler, 45 La. Ann. 52, 12 So. 315; jury, invalidated the indictment, and State v. Boyd, 20 S. C. L. (2 Hill) 288, it should have been quashed on the 27 Am. Dec. 376. plea. 28 C. J. p. 808, § 107; 28 C. J. p. 811,

Bratton, J., delivered the opinion $ 110; United States v. Rubin, 218

of the court: Fed. 245; 2 Whart. Crim. Proc. 10th Appellant was convicted of emed. § 1291; May, Crim. Law, 3d ed. § bezzlement of certain personal prop91; State v. Grady, 84 Mo. 220; People erty which had been placed in his v. Sexton, 187 N. Y. 495, 116 Am. St.

care, custody, and control, the value Rep. 621, 80 N. E. 401; People v. of which was fixed by the jury at Metropolitan Traction Co. 12 N. Y.

$45. Crim. Rep. 405, 50 N. Y. Supp. 1117; United States v. Farrington, 5 Fed.

A plea in abatement to the indict345; United States v. Coolidge, 2 Gall.

ment was interposed, in which ap364, Fed. Cas. No. 14,858; United pellant set forth and pleaded with States v. Kilpatrick, 16 Fed. 765; Peo

considerable detail that the only eviple v. Ward, 76 Misc. 323, 134 N. Y. dence submitted to the grand jury Supp. 330; People v. Molineux, 27 in its consideration of the charge Misc. 79, 58 N. Y. Supp. 155; People v. contained in such indictment was a Wood, 93 Misc. 701, 157 N. Y. Supp.

former indictment, returned by a 541; Royce v. Territory, 5 Okla. 61, 47

former grand jury, charging him Pac. 1083. The manner and form of returning

with the same offense; that such forthe indictment were prosecuted con

mer indictment was submitted and trary to law and without due process

exhibited to the grand jury, and of law.

upon that, and that alone, the in6 Standard Proc. 943; 6 R. C. L. p. dictment in question was returned ; 433, $$ 430 et seq.; State v. Ogden, 20 that neither of the persons whose N. M. 636, 151 Pac. 758.

names were indorsed upon such inThe verdict of the jury was without

dictment as witnesses for the state substantial evidence and was contrary ever in fact appeared before said to the weight of the evidence, and con

grand jury. To this plea a demurtrary to the law. State v. Corral, 27 N. M. 535,

rer was interposed, upon the ground 203

that such indictment, being regular Pac. 533; State v. King, 174 Mo. 647, 74 S. W. 627, 15 Am. Crim. Rep. 617,

upon its face, was conclusive, and Messrs. H. S. Bowman, Attorney

that the court was without power General, and A. N. Edwards, Assistant

to review the action of the grand Attorney General, for the State: jury for the purpose of determining

So far as we know, the question of the sufficiency or existence of the whether the trial court may inquire evidence upon which it was reinto the sufficiency of the evidence be- turned. This demurrer was susfore the grand jury which found the tained, the correctness of which is indictment has never been determined

the first question involved. in this jurisdiction.

It is provided by statute that 14 R. C. L. 205; 22 Cyc. 422; United

grand juries shall consider only two States v. Reed, 2 Blatchf. 437, Fed. Cas. No. 16,134; Re Kennedy, 144 Cal. 634,

kinds of evidence; first, that given 67 L.R.A. 406, 103 Am. St. Rep. 117, by witnesses who are produced and 78 Pac. 34, 1 Ann. Cas. 634; Smith v. sworn, or, second, legal documenState, 61 Miss. 759; State v. Dailey tary evidence. They can receive none but legal and the best evidence, proper plea, asserting that no evito the exclusion of hearsay and sec- dence was submitted to the grand ondary evidence, and they should jury, a hearing should be had, and return an indictment only when all if such fact is proven by competent the evidence, taken together, is evidence, the plea should be sussuch as in their judgment would, tained. State v. Logan, 1 Nev. 509; if unexplained or uncontradicted, Bryant v. State, 79 Ala. 282; State warrant a conviction by the trial v. Ivey, 100 N. C. 539, 5 S. E. 407, jury.

7 Am. Crim. Rep. 245; Royce v. "In the investigation of a charge Territory, 5 Okla. 61, 47 Pac. 1083; for the purpose of indictment, the United States v. Farrington (D. C.) grand jury can receive no other evi- 5 Fed. 343; United States v. Reed, dence than: First. Such as is given 2 Blatchf, 435, Fed. Cas. No. 16,134; by witnesses, produced and sworn State v. Grady, 84 Mo. 224; State v. before them; or second, by legal doc- Faulkner, 185 Mo. 673, 84 S. W. umentary evidence." Code 1915, $

Code 1915, § 967; United States v. Rubin (D. 3128.

C.) 218 Fed. 245. Other courts “The grand jury can receive none have vigorously maintained that but legal evidence and the best evi- this cannot be done; that grand judence in degree, to the exclusion of ries are judicial bodies with inquishearsay or secondary evidence.” itorial powers, whose findings are Code 1915, § 3129.

conclusive, and the courts are with"The grand jury ought to find an out power to review their action to indictment when all the evidence, determine what evidence, if any, taken together, is such as in their was submitted, whether it was comjudgment would, if unexplained or petent or incompetent, legal or othuncontradicted, warrant a convic- erwise. State v. Dayton, 23 N. J. tion by the trial jury." Code 1915,

Code 1915, L. 49, 53_Am. Dec. 270; Creek v. $ 3131.

State, 24 Ind. 151; State v. Fowler, There is a great contrariety of 52 Iowa, 103, 2 N. W. 983; State v. opinion among the courts upon this Roberts, 2 Boyce (Del.) 140, 78 Atl. subject. It is generally conceded 305; State v. Kelliher, 49 Or. 77, that if there is any legal evidence 88 Pac. 867; State v. Boyd, 20 S. C. submitted to the grand jury, even L. (2 Hill) 288, 27 Am. Dec. 376; though slight, the indictment will Dockery v. State, 35 Tex. Crim. Rep. be sustained, notwithstanding there 487, 34 S. W. 281; Kingsbury v. may have been illegal and incompe- State, 37_Tex. Crim. Rep. 259, 39 S. tent evidence submitted and con- W. 365; Lee v. State, 66 Tex. Crim. sidered. Wharton, Crim. Law, S Rep. 567, 40 L.R.A.(N.S.) 1132, 148 508; 20 Cyc. 1346; 22 Cyc. 206. The S. W. 567; State v. Woodrow, 58 W. exact question now before us, how- Va. 527, 2 L.R.A.(N.S.) 862, 112 ever, is whether or not the trial Am. St. Rep. 1001, 52 S. E, 545, 6 court had the power to inquire into Ann. Cas. 180; State v. Dailey the question of whether or not there (Noll v. Dailey) 72 W. Va. 520, 47 was any competent evidence what- L.R.A. (N.S.) 1207, 79 S. E. 668; ever submitted to the grand jury, as

Smith v. State, 61 Miss. 754. Other a basis upon which it returned the decisions discussing the question indictment in question. To other- now under consideration may be wise express the matter, it is wheth- found in the note appended to State er or not the finding of the grand v. Peterson, 28 L.R.A. 324: United jury was conclusive upon the court. States v. Cutler, 5 Utah, 608, 19 This is the question which has given Pac. 145. rise to much divergence of opinion The cases hereinbefore cited have among the several courts which disposed of the question upon prinhave had occasion to consider the ciples, without regard to statutory subject. It has been held that consideration. The state of New courts have the power, and upon a York has statutes identical with

(- N. M. ,

221 Pac. 183.) ours with regard to the kind and Francisco, and for that reason there degree of evidence necessary to the is nothing to confer jurisdiction return of an indictment of a grand upon the superior court of Alameda jury, and it has been there held that county. This contention cannot be by virtue thereof grand juries are maintained. There is no provision precluded from considering any but in our law for thus reviewing the legal and the best evidence, and action of a grand jury in finding an that, if, in violation of such statutes, indictment. The validity of an inindictments are returned without dictment cannot be attacked upon the kind and degree specified, the the mere ground of insufficiency of court may review the subject and evidence to support it. Courts canset them aside. People v. Metropolis not, in the absence of a statute pertan Traction Co. (N. Y. Gen. Sess.) mitting it, inquire into the suff12 N. Y. Crim. Rep. 405, 50 N. Y. ciency of the evidence upon which Supp. 1117; People v. Molineux, 27 the grand jury acted, in order to inMisc. 60, 57 N. Y. Supp. 936, id. validate an indictment returned by 27 Misc. 79, 58 N. Y. Supp. 155; them." People v. Gresser (Sup.) 124 N. Y. And again, in People v. Fealy, 33 Supp. 581; People v. Ward, 76 Misc. Cal. App. 605, 165 Pac. 1034, this 323, 134 N. Y. Supp. 330; People language is used: “But conceding, v. Walsh, 92 Misc. 573, 156 N. Y. for the purpose only of the decision Supp. 366; People v. Sexton, 187 N. of the point now before us, that Y. 495, 116 Am. St. Rep. 621, 80 the testimony so heard was entirely N. E. 396.

incompetent and in any event entireThe state of California has stat- ly insufficient to justify the indictutes upon this subject identical with ment, yet, under the law, an appelours, and that state has held con- late court cannot review that questrary to the state of New York. It tion to any purpose. It is true that has been there held that such stat § 919 of the Penal Code provides utes are merely "for the guidance that the grand jury can receive none of the grand jury," and that the but legal evidence, and the best evicourts have no power to review dence in degree, to the exclusion the evidence submitted before the of hearsay or secondary evidence. grand jury, for the purpose of de- It is also true that $ 921 of termining whether or not the stat- said Code declares that the grand utes have been complied with. Re jury ought to find an indictment Kennedy, 144 Cal. 634, 67 L.R.A. when all the evidence before them, 406, 103 Am. St. Rep. 117, 78 Pac. taken together, if unexplained, 34, 1 Ann. Cas. 840; Brobeck v. Su- or uncontradicted, would, in their perior Ct. 152 Cal. 289, 92 Pac. 646; judgment, warrant a conviction,' Borello v. Superior Ct. 8 Cal. App. which, no doubt, also means that, 215, 96 Pac. 404; People v. Hatch,

unless the evidence is such as 13 Cal. App. 521, 109 Pac. 1097; is thus described, an indictment People v. Danagoit, 25 Cal. App. ought not to be returned, although 158, 143 Pac. 70; People v. Fealy, it has been held that as far as said 33 Cal. App. 605, 165 Pac. 1034. section was intended to go was to In People v. Panagoit, 25 Cal. App. operate ‘only as a matter of advice 158, 143 Pac. 70, it is said: “Defend- to the jury.' State v. Boyd, 20 S. C. ant further contends that the testi- L. (2 Hill) 288, 27 Am. Dec. 376; mony taken before a grand jury was Re Kennedy, supra. It has, howinsufficient to support an indict- ever, repeatedly been held in this ment, for the reason that in no part state that there is no method proof the evidence was it shown, or vided for revising the action of a testified to, that the presentation of grand jury on the ground that there the false claim to the insurance com- was not sufficient evidence to suppany, or to any other person, was port it.” made in the city and county of San It is obvious that there is a mass

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