Banks v. State

78 Ala. 14 | Ala. | 1884

STONE, C. J.

At common law, the rule was to prepare indictments, send them before the grand jury, administer proper oaths to witnesses in open court, and send them before the grand jury, to be examined by them touching the truth or falsity of the charge preferred in said indictment. — 1 Arclib. Cr. Pr. and PI. 97, 98*, 8th Amer. Ed., vol. 1, pp. 304, 305. Under this practice, the examination of witnesses was necessarily confined to a specific charge of a specified offense, alleged to have been committed by a designated person. It being necessary that the indictment should specify the offense, it resulted that the testimony was confined to the offense specified. Any thing beyond that would be immaterial and impertinent. 1 Bisli. Cr. Proc. § 868; 6 Car. & P. 95.

In the American States, the rule is generally different,- and the practice varies in the different jurisdictions. In Alabama, the witnesses are not sworn in open court, but the oath is administered by the foreman of the grand jury, or by the solicitor. — Code of 1876, § 4773. In gaming cases, the solicitor has authority to summon witnesses. — Code, § 4215. And it is common knowledge, that the indictment is rarely drawn, until the grand jury have heard the testimony, and have satisfied themselves that it is sufficiently strong to authorize a prosecution. Their report to that effect is the basis on which the prosecuting attorney frames the indictment. If not abused, we are not prepared to say there is anything objectionable in this practice.

But the investigations of the grand jury must not be inquisitorial. With the exception of one class of offenses, such investigations must be directed to a specific end, and the right to interrogate witnesses is confined to specified aims and objects. In People v. Hackley, 24 N. Y. 74, replying to an argument, the court said: “ The criticism of the appellant’s counsel is, that the examination of a witness before a grand jury is not a proceeding upon an indictment, and so not within the statute. In one sense it is not. .But, by the theory of proceedings in criminal cases, the indictment is supposed to be prepared and taken before the grand jury, by the counsel prosecuting for the State; and the evidence is then given in respect to the offense charged in it. If the party accused appears to be guilty, the indictment [supposed to have been prepared] is certified to be a true bill. Otherwise, it is thrown out.. In that view of the practice, all which takes place before the grand jury, as well as the subsequent steps, may be sa.id to be proceedings upon the indictment.” This we may adopt as an accurate statement of the principles and theory of proceedings before grand juries in this State.

There is no authority for constituting the witness a general informer, requiring him to tell all he may know. The inquiry must be directed to a particular act, transaction, or imputed crime. Anything beyond this, except in the one class of offenses, is unauthorized by any law, and is in its nature inquisitorial.— United States v. Coolidge, 2 Gallis. 364; State v. Basset, 16 Conn. 457.

The excepted class referred to above, is that of gaming cases. — Code, § 4216. In this class, the statute authorizes the grand jury to interrogate witnesses as to any such offense within their knowledge, without specifying any act or transaction. When so interrogated as to gaming, the witness is required to answer. — State v. Blocker, 14 Ala. 450: State v. Parrish, 8 Humph. 80.

Giving away spirituous, vinous, or malt liquors, is not, without more, a violation of the criminal law. No general statute has interdicted such act, and, in the absence of some restriction, or local prohibition, the grand jury is without jurisdiction to inquire into a mere gift of such commodity. Many places have prohibitory statutes, but they do not cover the area of the entire State. It is shown that such act is prohibited to be done “ within two miles of the academy in the town of Jasper, in Walker county, Alabama.” If the grand jury were inquiring of the witness of any act of selling, or giving away of spirituous, vinous, or malt liquors to said witness, within said limits, a particular act or transaction being expressed, or indicated by the inquiry, then the question propounded was a legitimate one, and the witness was bound to answer it. A false answer given to such inquiry, if knowingly given, might be the subject of an indictment for perjury. In such case, the question by the grand jury would have a definite aim, would be within the sphere of their legitimate powers, and the witness would be bound to answer it.

The indictment in this case is fatally defective. Tt fails to show or indicate any person, of whose guilt the grand jury were inquiring, and it fails to designate, or point to any place, where the act of giving would be unlawful, as the scene of the imputed act. It therefore fails to show the question to the witness was material, but, on the contrary, shows it was prima faoie immaterial. An answer to an immaterial question can not be the subject of perjury; and an indictment which shows on its face that the act sought to be proved was immaterial and harmless, as not pointing to some act of imputed criminality, must be adjudged insufficient. The averment that the matter sworn to was material, can not overcome the intendment that the matter specified as sworn to is prima faoie immaterial.

Nor is the present indictment helped by the imputed false statement, that no one had given or sold him spirits, etc. The frame of the indictment shows that the attempt of the grand jury was not to procure an indictment against the person, “ whose name was to the grand jury unknown,” for selling such liquors without license. The act complained of was “selling or giving,” stated disjunctively. When this mode of pleading is adopted, each act thus alternately charged must constitute the offense charged, or attempted to be charged. — Horton v. The State, 53 Ala. 188: It is manifest there was no inquiry as to the ordinary sale of liquors without license.

Reversed and remanded.