The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-06-19
CHALMERS, j .
THOs. II. COOK
VS..
and affirm the decree.


Error to the Circuit Court of Warren
County, Hon. U. NJ. Young, Judge.
Plaintiff in error was convicted of man
slaughter. He moved for new trial, and
also in arrest of judgment, both of which
were overruled. The latter motion was
based on an alleged failure Of the record to
show that the Indictment was properly re-
turned into Court. The indictment was
marked filed by the clerk on the
9th of March, 1873. 1t was against
two, plaintiff in error and one p. III. Cook;
and in the entry of the return of
it by the Grand Jury on the minutes at
that term, it is stated to be an indictment
against p. II. Cook; plaintiff in error was
not then arrested, and the clerk erased his
name from the said entry on the minutes,
so that it appeared to be an entry of an in
dictment found against P. III. Cook alone.
This entry was continued for several terms,
until p. III. Cook was tried and acquitted.
1t appears after this that Thomas ii. Cook
was arrested, and then the case is always
entered upon the minutes of the Court as
"The State VS.. Thomas COok,' but with
the same number stated in the original en-
try of the return of the Indictment. At
the January term, 1880, the plaintiff IN En-
ror pleaded to the Indictment and was
tried and convicted. There never was any
other entry of the return of the
indictment by the Grand Jury made
on the minutes of the Court than that
made in March 1873.
II. +. Simral and L. w. Magruder for
plaintiff in error.
Z. C. Catchings, Attorney General, for the
State.
GEORGE, CD
Hold
l. 1t is not seriously insisted in this
Court that there was error in refusing
new trial. and upon an examination of the
evidence we are satisfied that the Court did
right in refusing it.
2. If it be conceded that the entry was
it does not follow that the
motion in arrest should have been sus-
tanned. The indictment was marked
g fled by the clerk at the time it was
presented by the Grand Jury, and by the |
statute then existing, Code, S2795, an entry |
on the minutes of its return was prohibit
ed until the defendant had been arrested
and was in custody, or on recOgniZance. |
And it is further provided by that section
that the entry of the return of the indict- |
ment may be made on the minutes of the |
Court at dny time after the appearance of |
the defendant. Under this statute it was
in the power of the Court to have caused |
the entry to be made at the time the trial
Of the plaintiff in error took place, in Janu-
lry, 1880, if the Court deemed such entry
necessary.
3. While the indictment was pending
N the Court marked " fled" and with the
power in the Court to cause its return by
-he Grand Jury to be entered on the min
ltes, and while, therefore, it was a good
md valid Indictment, under which plain
III in error might have been lawfully tried,
he statute of February 6, 1873. session
Laws, p. 1881 was passed, providing that
he filing of the indictment by the clerk
shall be evidence of the proper and legal
'eturn into Court of such Indictment" 1t
vas, therefore, wholly unnecessary to have
made any entry of its return on the min
ties.
4. There is nothing in the Act of 1873 to
,Ontine this part of it to indictments found
! ter its passage, and it was entirely COM
'etent for the legislature to declare the eff
ect of the filing of indictments which
we're found before its passage, in all cases,
where an Indictment at the time of the
passage of the Act was validity pending,
md could be made operative by action of
he Court thereafter to be taken.
Judgment affirmed