42 Misc. 664 | New York Court of General Session of the Peace | 1904
The grand jury of the county of Mew York, returning to court, presents the following resolutions: “ Re
In response to this request and in so far as may be pertinent to it, I advise the grand jury of their powers and limitations and of the obligations and privileges of a witness summoned or appearing before them.
First. The grand jury have power, and it is their duty, to-inquire into all crimes committed or triable in the county. Except in special cases specified by law, their power to inquire is limited to crimes committed or triable in the county. In order for them to exercise that power it must be made to appear by complaint or information or knowledge acquired that there is reason to believe that a crime has been committed. They have not the power to institute or prosecute an inquiry on chance or speculation that some crime may be discovered. Such an inquisition, based upon mere suspicion, would be odious and oppressive, and would not be tolerated by our laws. There must be reason to believe that a crime of a specific character has been committed by a particular person whose name may be either known or un- ■ known to the grand jury.
Second. When they have reason to believe that a crime has been committed, they have the power to summon and compel the attendance of any witness and examine him upon all matters that are relevant or material to the subject of inquiry. They have not the power to summon a witness and examine him upon matters that are wholly unconnected with or unrelated to the subject of inquiry. The process of the grand jury can be used only for the purpose of aiding a lawful inquiry, and it must not be used for the purpose of oppression or harassment.
Third. In the investigation of a criminal charge, the grand jury is not bound to hear evidence for the accused; but if they have reason to believe that evidence other than that
Fourth. A witness summoned is bound to appear and answer all questions that are relevant and material to the subject under investigation. If he refuses to be sworn, or to answer such questions, he is liable to be adjudged guilty of a criminal contempt. The grand jury being an adjunct of the court is considered a part thereof, and a contempt committed in its presence- is constructively committed in the presence of the court. There are, however, contingencies in which a witness may be justified in refusing to answer certain questions. In such case the refusal must,' rest upon the claim by the witness of privilege conferred upon him by the fundamental law that “ no person shall be compelled in any criminal case to be a witness against himself.” This privilege belongs exclusively to the witness himself. He may waive it at his election and answer all questions, or he may claim it, and if he does it affords him complete protection. The contingency that will justify the exercise of this privilege is where a question is asked the witness the answer to which may tend to convict him of a crime. If a witness bases his refusal to answer upon this ground he must so state; and he cannot be then questioned further as to why or how such result could inure. Chief Justice Marshall, in the trial of Aaron Burr, said: “ If the
Fifth. When a grand jury finds a bill of indictment and it is presented to the court, they have no further jurisdiction of its subject-matter so far as the person or persons therein accused of crime are concerned, except by way of a superseding indictment for the purpose of supplying some omission or of remedying some defect in the previous indictment. They cannot institute a new and independent inquiry for the purpose of eliciting additional testimony to supplement or strengthen the testimony on which the indictment was found or to aid the prosecutor in the trial of the case.
The examination is entitled as follows:
“ Charles W. Morse, having been duly called and sworn as a witness before the Grand Jury in the case of The People of the State of Hew York against John Doe, testified as follows:”
The foreman then said, “ I would like to make this statement to you on behalf of the Grand Jury. It is my duty to inform you, before you give any testimony here, that anything you may state to this Grand Jury may be used against you at some future time and that you are; therefore, not under any compulsion to answer any questions that may lead to incriminate you.”
It is a matter of common knowledge that the name John Doe is fictitious and that it is used in judicial proceedings to represent or indicate a person whose true name is unknown. It may be inferred that a proceeding before the grand jury between the people and this unknown person was in its nature a criminal proceeding, but there is nothing to-show that any complaint, information or charge had been made to the grand jury that a specified crime- had been committed in this county by a known or an unknown person. This omission is very important in determining whether the-questions asked and refused to be answered were relevant or material to the subject of inquiry, and consequently whether the grand jury had the right to ask those questions. If the court, from the record of the proceedings before it,, cannot say what the subject of inquiry was, it cannot -determine whether the questions were relevant or material. And the caution given by the foreman to Morse rather obscures than clarifies the situation. He is told, after having been duly called and sworn as a witness, “ that anything you may state may be used against you at some future time.” Was Morse the John Doe? If he was, the manner of his being called and sworn and examined would render nugatory an indictment found against him; if he was not the
The interrogatories to the witness on the examination may be grouped under three heads: Questions relating to transactions between him and the assistant district attorney who conducted the examination; questions regarding his marital relations; and questions as to his knowledge of certain individuals and as to the whereabouts of others.
Hot knowing the subject of inquiry, it is impossible to say what relevancy or materiality these questions had to any inquiry or to each other, and reading them as they are set forth, the court cannot say, as matter of law, that they refer to the commission of any crime.
Toward the close of the examination this question was put to the witness: “ Q. How, Mr. Morse, the Grand Jury of this county have indicted Charles F. Dodge for the crime of perjury committed upon a motion in the Supreme Court, by which he succeeded in vacating a judgment of divorce obtained by his wife in 1898, his wife having subsequently and in the utmost good faith married you. The Grand Jury seek further light and further evidence by which when Charles F. Dodge is returned into this State, under the warrant of the Governor, he may be duly convicted of that crime against the State and- of that wrong to you and to the woman whom you have every right to suppose was your lawful wife. Do you decline to give the Grand Jury any information that is in your possession upon that subject-matter? A. I decline to answer any of your questions on the ground that it may tend to incriminate me.”
It is manifest that the purpose of this question was to obtain or procure from the witness information which would aid in the trial and conviction of Dodge. That is a laudable
Except, as I have pointed out, this grand jury had no jurisdiction of any matter connected with that indictment, and it follows that they had no power to issue process and compel the attendance of the witness Morse for the purpose indicated by this question, and whether he properly or improperly claimed his privilege becomes of no consequence.
Erom the principles which I have stated and that are applicable to your inquiry of the court, and from the conclusions which I have drawn on reading the examination in the light of those principles, I advise you that you cannot lawfully continue the examination of the witness Morse under existing conditions, and he must be discharged from further attendance under the present subpcena.
Should the district attorney advise the grand jury to institute an inquiry into any crime committed or triable in this county as the law directs, and Charles W. Morse is required to appear before them as a witness, there is no legal obstacle to a subpoena being issued compelling his attendance.
Ordered accordingly.