125 N.Y.S. 313 | N.Y. Sup. Ct. | 1910
The Governor of the State directed the Attorney-General to attend the grand jury, in person or by deputy, for the purpose of conducting an inquiry concerning a criminal charge against the American Ice Company. In pursuance of this direction, the Attorney-General, by his deputies, the petitioners herein, attended the grand jury and conducted such inquiry.. At its close, the grand jury presented to the court a writing which stated“ The Grand Jury, empaneled for the January, 1908, term of the Supreme Court, respectfully makes the following presentment.” Then followed a somewhat lengthy statement of the proceedings, which, epitomized, sets forth (a) that after taking a great deal of testimony, the Deputy Attorney-General stated he would withdraw the matter from further consideration for the reason that a quorum had not heard all the testimony, and that, if an indictment were found, it might he open to serious attack; (b) that the record showed that a quorum was present and heard. all the testimony given; (c) that the court was applied to for instructions
From its ancient prestige, the deliverance of a grand jury, in the form of a presentment, is calculated to impress the public mind, and a person aggrieved, who has no opportunity to answer or defend, is justified in appealing to the court to rectify a wrong, if committed. The term “ presentment ” acquires force from its historic association with a legal proceeding which was tantamount to an indictment, and, because of that, it is commonly regarded as of legal significance. If so, it should have some force and effect and furnish a basis for some action. If it he not of legal significance, it is a mere brutum fulmen, without authority, and where it injuriously affects the individual it should not be accorded even the color of authority.
The petitioners, in support of their contention that this presentment is untrue, submit the minutes of the proceedings before the grand jury and in open court, as well as the charge of the learned justice presiding. But the question of its truth is not of prime importance, for, if that were inquired into, it would be conceding to it a legal character, as on a motion to quash an indictment for insufficient evidence. The question of prime importance is, was the paper filed with the court a presentment by the grand jury under authority of law, using the word “ presentment ” in its legal sense, without regard to the nomenclature of the paper.
Conceding the correctness of these definitions, are they of practical use as applied to our system of procedure, where the Attorney-General or district attorney has a right to attend the grand jury and where, without their signatures, an indictment is not effective and, without an indictment, no criminal prosecution (except under the statute for misdemeanors) can be sustained ? It not infrequently happens that, in straining into the misty past for precedents, we are prone to overlook the changes and modifications in the law made necessary by modern conditions and requirements. In 1881, there was passed by the Legislature an act to establish a Code of Criminal Procedure, which was intended to make certain a system of practice and pleading' in criminal law. Chapter 2 of title 4, part 4, treats of the formation of the grand jury, its powers and duties, and chapter 1 of title 5, part 4, treats of the finding and presentation of the indictment. Throughout these two chapters, the word “ present ” or “ presentment ” is used to define
Thus the law, plainly expressed, is that a grand jury can act only in the manner prescribed by law, that when it so acts a certain definite legal result must follow, and that such result can be expressed only in either one of the two formulas : “A true bill found ” or “ charge dismissed.” Whatever office a presentment performed, whether as a basis for a criminal prosecution or as a direction to the prosecution to frame an indictment, it has been expressly abolished, and the grand jury, in its inquiry as to whether a crime has been committed, is limited to formulating or dismissing the charge, just as a petit jury is limited to a verdict of “ guilty ” or “ not guilty.” From the law as it is, no other conclusion can be reached by any process of rational reason
Applying these rules to the case under consideration, what were the powers and duties of the grand jury ? To inquire into a charge that the American Ice Company had violated the law. In the course of that inquiry none but legal evidence could be received. Id., § 256. If sufficient legal evidence was produced, there devolved a duty to indict; if not, to dismiss the charge. It was not within the scope of its powers to investigate the conduct of the Attorney-General’s representatives. They were not charged with having committed a crime, nor was any evidence taken to support any charge against them, and yet the greater part of the so-called presentment made to the court is taken up with a recital of what happened in the grand jury room, coupled with two distinct accusations of bad faith and unprofessional conduct on the part of its legal advisers, for certainly an attempt by sworn officers of the law to willfully mislead a grand jury on a material matter is such a betrayal of the confidence reposed and such a violation of the oath of public office and of the oath taken on admission to the bar that professional disgrace and expulsion from the bar would be but meet and appropriate.
These accusations mainly rest upon a stated cause, that the Deputy Attorney-General attempted to take the consideration of the case from the grand jury. An examination of the minutes shows that the Deputy Attorney-General expressed an intention to withdraw the case, and gave as his reason that a quorum had not been present at the taking of all the testimony and that, in consequence, an indictment, if found, would be open to attack. The grand jury was not satisfied with the reason so given, and sought the advice of the court. This it had a right to do. The learned justice presiding evidently did not agree with the Deputy Attorney-General, and he directed the inquiry to proceed. It did proceed. Further testimony was taken and, at its close, the grand jury disregarded the advice of the Deputy Attorney-General that sufficient evidence had been given to warrant
It has become a custom of almost invariable occurrence that the grand jury, at the close of its term, makes a presentment on some subject on which, frequently, no evidence has been heard. This, no doubt, proceeds from the zeal of its members to promote the general welfare by calling attention to certain conditions which they believe should be remedied. So long as they are confined to matters of general interest they are regarded as harmless, even though a waste of time and effort, and after the ephemeral notice of
In the courts of many of the States of the Union there have been expressions of judicial opinion on this subject, and, while they vary as affected by the local jiirisdiction and the particular facts and circumstances, they all agree in holding as reprehensible an attack on private individuals by grand juries under the guise of a presentment. It is unnecessary to cite these numerous authorities, but two of recent date in our own State are worthy of attention. In Matter of Jones, 102 App. Div. 55, a divided court refused to expunge a presentment which censured a public official, Jenks, J., writing the prevailing opinion. “ I think that if, under the guise of a presentment, the grand jury simply accuse, thereby compelling the accused to stand mute where the presentment would warrant an indictment so that the accused might answer, the presentment may be expunged, but I do not think that a presentment as a report upon the exercise of inquisitorial powers must be stricken out if it incidentally point out that this or that public official is re
In Matter of Heffernan, County Court, Kings County, March, 1910, an application was made to set aside and expunge an indictment by the grand jury which censured by name certain public officers for neglect of duty and of the public interests. In granting the application, Dyke, J., said: “ Presentments should be made use of only where
Some States have abolished the grand jury system. This State yet preserves it, and it may be wise that it does so, for it is an institution that has indelibly impressed upon the pages of history a record for the protection of the citizen against the arrogance and oppression of power and has inspired in the hearts of the lawless and corrupt a -healthy fear of its powers and honesty. But its action should be checked when, from thoughtlessness or misconception of its jurisdiction or an exaggerated idea of its own importance, it arraigns the citizen in phrases accusing him of acts or conduct which in themselves are not criminal, thereby precluding him from the right guaranteed by the Constitution to every man to meet his accusers face to face before a jury of his peers, but which are the more insidious and harmful because they must remain without answer or denial. Such is this case, and in the interests of justice I am constrained to protect the Attorney-General and his deputies from an injustice by directing that the paper presented to the court by the grand jury, bearing date the 7th day of April, 1908, and entitled “ a presentment,” be stricken from and expunged from the records of this court.
Application granted.