Collier v. State

61 So. 689 | Miss. | 1913

Need, J.,

delivered the opinion of the court.

A motion was made to quash the indictment for murder against appellant, for the reason that a private prosecuting attorney, not having been summoned in the case, was permitted to go before the grand jury and influence them while they were deliberating on the charge against appellant. This appeal is taken from the action of the trial court in overruling the motion.

"We believe that there was sufficient testimony to support the averments of the motion. It is shown in the testimony taken upon the hearing of the motion that the attorney stood for thirty or forty minutes and addressed the jury and that an indictment was found against appellant immediately after he retired. The clerk of the jury, in answering the questions as to how the attorney got before the jury said: ‘ He came in of his own free will and accord.” It has been deemed improper, in this state, for a private prosecuting attorney to use his influence before a grand jury to secure an indictment. Indictments obtained in cases where such influence has been used have been decided to be invalid. The purpose of the grand jury is to make inquiry regarding crimes which have been committed within its jurisdiction, and in cases where the testimony is sufficient to present for trial the alleged offenders against the law. It is the office of the institution to bring to trial persons accused, and it must also be used as a means to protect citizens against unfounded accusations, through a private, though full, examination of all the facts and circumstances connected with the charge.

The question before us has been frequently considered and passed upon in this state. In the case of Durr v. State, 53 Miss. 125, it was decided that it was improper for the court to permit an attorney who had been employed to assist in the. prosecution to come before the grand'jury, with witnesses, and there act for the district attorney in framing an indictment. In Welch v. State, 68 Miss. 341, 8 South. 673, an attorney procured himself to be summoned as a witness before the grand jury, and, thus introduced addressed the jury, urging the finding of an indictment. Judge Campbell, in delivering the opinion of the court, in which it was decided that the indictment should be quashed, said: “In vain the Constitution protests against being proceeded against criminally, by information, for an indictable offense, except in cases mentioned, if grand juries are to be swayed by malice or prejudice or subjected to other influences than those recognized by law as legitimate and proper to guide them in their secret inquest. £The recognition of such a mode of reaching grand juries (as was alleged in this case) would introduce a flood of evils disastrous to the purity of the administration of criminal justice, and subversive of all public confidence in the action of these bodies. ’ It is true that one indicted is to be tried by his peers, and if falsely accused may expect a deliverance; but he is entitled to attack the prosecution in limmef where it is procured by means unknown to and unsanctioned by law. ’ ’

Judge Cooper, discussing the same subject in the case-of Wilson v. State, 70 Miss. 595, 13 South. 225, 35 Am. St. Rep. 664, wherein it was decided that an indictment should be quashed because a private prosecuting attorney-appeared before the grand jury for the purpose of securing an indictment said: “It is a serious mistake to suppose that the right of one accused or suspected o'f a crime-to the orderly and impartial administration of the law begins only after indictment. Immunity from prosecutions for indictable offenses, except by presentment by grand jury, is declared and preserved by the organic law of this and all other states, and though, by reason of the secrecy of the proceedings before that body, its .action is seldom brought in review it cannot be doubted that one whose acts are there the subject of investigation is as much entitled to the just, impartial, and unbiased judgment of that body as he is to that of the' petit jury on his final trial, nor that it is as essential before the one body as the other that private ill will or malevolence shall be excluded.” In State v. Barnett, 98 Miss. 812, 54 South. 313, it was held that an indictment should be quashed where the attorney of the person alleged to have been defrauded in the charge of obtaining money under false pretenses appeared before the grand jury and drew the indictment. And in Herrington v. State 98 Miss. 411, 53 South. 783, where the sheriff went before the grand jury and assisted in the examination of the witnesses, it was decided that it was improper for an outsider to take any part in the deliberations of the grand jury.

It appears in this case that the private attorney who went before the grand jury had not been summoned as a witness in the case against appellant, that he was not an officer having any duty to perform in the matter before the jury, and that he was in fact an outsider. The purpose of the law is to prevent outsiders from taking any part whatever in the deliberations of the jury, and to prevent them from influencing the jury in any manner and to any extent in their effort to reach proper conclusions. It must have been the purpose of the attorney in this case, when he went before the grand jury, to advance in some way the prosecution of the case against the appellant. We emphatically disapprove of all interference or influence by outsiders with the grand jury during its deliberations. Its members should be permitted to act free from sway or control from any source. As an informing and accusing tribunal it has an important and solemn responsibility. It owes a duty to the state and a duty to the citizen. Its performance of these duties should be without fear or favor, or any other manner of influence.

The judgment of the court below is reversed, the indictment quashed, and the defendant held to await the action of another grand jury.

Reversed.