*1 v. State. (Nashville, 1951.) December Term,
Opinion filed March 1952.
Rеhearing denied June 1952. Memphis, for P. both of Madden and Sam J.E. Cole, petitioner. Attorney M. General District Heiskell,
John County, acting Shelby and Greenfield Curiae, as Amiens *2 Shelby Attorney of District General Q. Assistant Polk, respondent. acting County, for also as Curiae, Amicus the the delivered of Mr. Justice Burnett Court. petitioner, a motion of the case comes us on
This expunge Hayslip, to a the D. of Maurine portions Shelby County certain of Grand complaint report. gravamen re- The the is that the portions complained extra-judicial port, of, the province within under the the and laws of this State. Constitution petition expunge and as trial court denied appeal followed. heard thereof We have result argument, investigated many and now have authorities, disposition. the matter for public press and other- a result of statements
As petitioner, certain made effect wise, Age practices, amounting immoral to Violation being were tolerated the authorities Consent, Memphis Superintendent high one of the schools, of Education Schools and the of the Board Chairman requested investigate charges. investigation under As a result of this complete finding on the matter oath, made presented judge. trial their written thereon to the negatives completely which This rumors investigation. Among things other had under Jury says: “Our extensive reveals no scintilla *3 ‘non-virgins’ оf a club of evidence of existence very Treadwell and does reveal substantial that no club exists or ever creditable evidence such ’’ existed. complained portions and asked of the presentment expunged are:
to be from this charges carefully considered all of the “We Maurine in the of Mrs. D. made statement opinion It our that her and heard her full. (cid:127) employment City in the would be continued Schools * * # community. a and disservice unadvisable escape Tread- cannot the conclusion that the “We viciоusly maligned by the un- been well School has Hayslip. charges Maurine D. of Mrs. We founded splendid regret many particularly of the' this because young with whom women, leaders, men and student during investigation our and who in contact we came stigma ru- cast on the school that the felt 646 seriously progress
mors would deter of the school.” Age felony
Violation of the Consent is State as defined under Code Section 10786. This offense subject presentment be the and indictment Jury. say We this because Code 11582 Section provides: inquisitorial powers
“The shall have presentable all over indictable or offenses committed ’’ county. or triable within the Jury inquisitorial At common law a Grand had no power. Wilson, v. State 115 Tenn. 91 725, 195.W. power Jury “But greatly now the of the Grand been enlarged, making inquiry, and under the second mode they may, respect to all offenses send for witnesses they any and makе whenever one of them suspect a History violation of the law.” Caruthers page 7th Gilreath, Edition, Sec. 832. Lawsuit— necessary go
It history is not for us to into the of the or to enter into academic discussion progress date. Sufficeit to history of the Grand and its have been very ably opinions many discussed in which we- have page read. At the bottom of 1378 of 106 A. L. R. is an interesting setting history inquisi- note forth the power Jury. torial of the The case to which this note is attached is McNair’s Petition, Pa.
A. A. L. R. 498,106 1373. The writer refers *4 many subject. to cases on the There will also be found annotаting- in 22 A. L. notes R. 1356 120 and A. L. R. 437 many jurisdictions subject. cases from various on this may One interested run likewise these annotations down through Digest presumptively, the ALR and find, all subject other cases on the that have been decided since
647 no better that It is said the three cases. *5 648
by by Jury’s powers name or inference, and that Grand or upon by are limited to those conferred law. opinion It is the most these courts of last that resort Jury, investigation a Grand has finished its nothing accusing anyone by found for as basis in presentment duty dictment or that then it contrary depart. so and Some cases to the Murphy, App. (2d) v. 129 Cal. 19 P. 713, Irvin are Report (2) 292; In 154, re 152 Fla. 11 So. App. 316; In Jones, re Div. 92 N. 55, 609, 275, Y. S. Application Knight, (2d) 635, 176Misc. 28 N. Y. S. 353. Supreme parte Court of Arkansas Ex (2d)
Cook, 199Ark. 1187, 137S. W. held whether that 248, Jury’s report expunged not a Grand should be was in the discretion of the trial court. The facts of that case person moving were pоr record or expunged moving tion thereof party was the in the cause, causing report. Appli holding The basis for the Knight, supra, (N.Y. cation Court) Intermediate seems Knight applicant to be that expungement since for securing was the movent in the position then he wаs in no to have their expunged. Judge, Bennett v. Kalamazoo, Circuit 183 Mich. Supreme
150 N. W. 144 Ann. 1916E, Cas. 223, the Michigan very succinctly underlying- Court of stated upon reason which is based, holding those courts rule, thus: “A re- question, all view of the cases cited both sides of the and such others as we havе been able to examine, leads apart inherently, us to the statutory conclusion right report, sanction, has no to file such a unless it is followed an indictment. The evils of the practice contrary apparent must be to all. While the proceedings supposed are to be secret, secrecy it is clear that in the instance that was not objectionable report way inviolate, for the into *6 press of Kalamazoo within a few hours after it had been filed. Whether the matter contained in such prin- be true or it can make false, no difference with the ciple person involved. either event the accused is obliged charge charges, to submit to the odium aof or perhaps, upon based, insufficient evidence, or no evidence having opportunity at all without to mеet his accusers reply to their attacks. This situation is one which every play surely offends one’s sense of fair not is justice.” conducive to the decent administration of We thus conclude that the rule, as above is stated, the sound and the fair rule to follow. isAs by Supremе supra stated Court Fla. Florida, [152 (2d) “They (Grand Jury) 154, 11 So. 318:] will not be permitted single posi to out perspns civil official or impugn imputation, to tions their or motives, word, ’ ’ innuendo hold them to scorn or criticism. underlying opinions reason for pe-
in the instant case. In the now case befоre us the presumed publicized titioner is to have known when she charges Age of Violation of the of Consent that a Grand Jury investigation charges. must or should follow such charges aAs result of her an such did fol- low. Evidence was heard before the includ- ing petitioner, that of thе and the Grand concluded as heretofore set forth. Under such circumstances the expunge having proceedings movent initiated the after position publicizing object them in no to the result investigation. Term. [193 Repouts. Tennessee supra Application Knight, [176 Misc. As said in (2d) 28 N. Y. : 355] day ar- ever
"It be indeed if the should would sad jus- rive could set the wheels individual by presenting before the tice in motion his case public publicized charges against having after public agencies held that and it be officialsand should grand jury investigating charges was not those libеrty it a matter of record that state as law enforce- them baseless. Public confidence prime importance; petitioner ment officers is of having charges, broadcast his be unreason- would failure to substan- able for the court hold his charges be made a matter of tiate such should not public record.” speak- Supreme Arkansas,
And Court of as said *7 ing through the Chief Justice:
n petitioner’s requesting in an act inves- "We think responsible tigation True, for the result. he did was anticipate yet, in comment; critical view of not jury evidently publicity given charges, the the thought findings mаde. It comment on its be should within of the circuit court re- was the discretion supra reject deport.” parte Cook, the Ex ceive or (2d) Ark. [199 1187,137 249]. S. W. circum seems to us under
It, therefore, arising herein, the as are shown case, stances of this facts discretionary the matter for that then it should become report portions the trial as to whether or not court, expunged. For the rea of the Grand are thereof petition deny the and the same herein stated we must sons at her cost. is dismissed (dissenting).
Neil, Chief Justice
respectfully
opinion,
majоrity
I
from the
hold-
dissent
ing
that the
rule
as stated
Bennett v. Kala-
Judge,
mazoo, Circuit
ince of the in its that Mrs. Hayslip testified to no fact that warranted the return of independent as a of an indictment, and result inves- tigation, immorality no evidence of obtainable. But was permissible was not to include a statement maligned” “viciously that she the school and ren- dering community” “a disservice to the as a teacher *8 the school. question right
I do not to investi- gate jails, penal of the condition and farms, numerous county agencies purpose institutions and with the in view recommending changes improvement of for their well as any guilty crim-
as to indict those to be of who are shown ¡Section duty their to inal offense. Code 11584 makes it any against having an But, do so. not indictment employee any or or connected with institution official, single agency investigated, no to out so it has report any her make a moral individual аnd as to his or up public Such character or otherwise hold them to scorn. report place extra-judicial a is and has no rec- of the Criminal ords Court. fully agree admittedly
I what rule with is quoted opinion: “They (Grand which is permitted single persons Jury) will not be to civil out pоsitions by impugn word, or official their motives, to ’’ imputation or innuendo hold them or criticism. to scorn page In 24 Am. 36, Section it is said: “It is Jur., 859, person right by a a censured or criticized of ” expunged grand record. to it from the expunging for the record the sound reason clearly jury in cаse is instant County by the York follows: “To stated New as Court, any single an not individual, out reason acts public public official, as a office, reason acts oppor to condemn him without without trial, making privilege tunity to be de heard, without attempt justice, free in a Ameriсan court de fense prive good name, character, him of his besmirch his repugnant so ideals of the administra unfair, so disapproval justice as to merit the America, tion of Healy, In Y. 161 Misc. 293 N. court.” re pp. See A. L. 440-441. also re Grand R., 602; City, Report in 152 Md. A. 370. 616, 137 Baltimore generally mаtter of it true ex- be "While grand jury’s punging dis- is within the sound discre- is not court, of the trial nevertheless cretion *9 defamatory tionary of witnesses where the is high and is ever so No court is found. no indictment mighty discretion law clothes with report. grand jury in its official defame a witness respect highest learned trial for the I entertain disagree him with judge. than do otherwise But I cannot opinion. from the and dissent TO BeHEAE. PETITION Justice. Burnett, petition Hayslip in to rehear
Maurine filed a D. petition primary that is contention this case. moving- concluding that Mrs. we erred jury report fully bringing grand party refer- about opinion. original true that the record red to in our It is transcript the evidence before the does not contain a only that can arrive conclusion one but the parts reading is and other of the record cannot shut was the movent this causе. We she eyes the record and must to what evident our is so give verity certainly certainly think that that this was true. We
which shows reaching this conclusion. was no error our there petition very in the to rehear were authorities cited All thoroughly we before determined considered us brought originally. no new There is matter original our and we must conclude that attention to our according to the views of correct is opinion. original cited in the reasons for the petition to rehear must be The result overruled. notes these general history, duties of origin, of statement the quoted oft in the than is be found Juries Charge summary In to Grand C. re Field, J., of charge Sawy. will be 667. This Fed. No. 18255, Cas. page we quoted in full in 22 L. R. at A. opinions read many we have that found it in of the have question. on this speaking through the late Justice Chief Court, This W. 347, 352, 103 v. 171 Tenn. Green, Statе Davidson, present succinctly very the and well stated 2d 22, 24, has Jury inquisitorial power follows: of the Grand as of 1932 the Code “It well established before grand jury might examination they respecting which offense witnesses for inquisitorial power. The two sections had 11582,11592) quoted just (Code Code of 1932 Section inquisitorial power give with re- to the spect enacting every offense. In Code respect changes Legislature with made the noted power inquisitorial with impossible court before them. It of this decisions design conclusion that Code to avoid the prоsecution subject was to make all offenses upon presentment.” Jury duty in- think it was We question charges. vestigate how far should is, judge go to the trial the Grand presentment or a so an indictment not find does opportunity might charged defend the one open court? the vast or herself himslf by courts of last been considered which have the cases no have held that those courts resort report criticizing either individuals to make a