173 N.Y. 395 | NY | 1903
On the 5th day of February, 1898, the defendant was indicted by a grand jury of Wayne county for the crime of embracery under section 75 of the Penal Code which, so far as it is applicable to the case at bar, provides that "a person who influences or attempts to influence improperly, a juror, in a civil or criminal action or proceeding, or one drawn or summoned to attend as such a juror * * * in respect to his verdict, judgment * * * or decision, in any cause or matter pending, or about to be brought before him, in any case, * * * is guilty of a misdemeanor." The indictment charges, in substance, that on or about the 5th day of February, 1898, the defendant did attempt to improperly influence, in respect to his decision and judgment in a certain cause and matter pending and about to be brought before him, one Abram Weed as a member of the grand jury theretofore summoned and about to be convened at the court house in and for the county of Wayne on the 7th day of February, 1898. The indictment then proceeds with a detailed statement of the particulars of the offense, and concludes with the charge that the defendant then and there well knew that said Abram Weed had been theretofore drawn and summoned as such grand juror, and that the cause and matter respecting which the alleged improper influence was exerted was then pending and about to be brought before the said Abram Weed and his associates as a grand jury.
After the indictment was found it was sent to the Wayne County Court for trial. The case was tried and submitted to the jury under a charge to which no exception was taken *398 that is now presented for review. The alleged error of the trial court in its charge upon the subject of proof of defendant's good character was discussed by appellant's counsel in this court, but, as no exception to this portion of the charge was taken at the trial, it cannot be considered here.
On the 28th day of March, 1898, the defendant was convicted of the crime for which he was indicted. Thereupon he appealed to the Appellate Division, which sustained the judgment of conviction, by a divided court. Among other questions considered by that court was the one whether the evidence was sufficient to sustain the conviction. A majority of the court held that it was. As we have no jurisdiction to pass upon the weight of evidence, the decision of the Appellate Division upon that branch of the case is final. We cannot say there is no evidence to sustain the judgment. There are other questions, however, which we are called upon to review. After the defendant had been arraigned in the County Court, he demurred to the indictment. This demurrer was based upon grounds that are not material here. The demurrer was overruled, and thereupon the defendant moved to dismiss the indictment. The order denying the motion to dismiss the indictment recites that it was made under sections 313 and 671 of the Code of Criminal Procedure, but the affidavits upon which the motion was based clearly show that the real ground of the motion was that the learned justice of the Supreme Court, presiding at the term for which the grand jury above referred to had been impaneled, had committed error in reading to them certain affidavits bearing upon the accusation brought against this defendant and in the instructions given to the grand jury upon that subject. This is not one of the grounds specified in section 313. Two questions are presented for our consideration upon this appeal. First. Can a motion by a defendant to dismiss an indictment against him be entertained on any other grounds than those specified in section 313, Code of Criminal Procedure?Second. If such a motion can be heard on other grounds was error committed by the learned justice of the Supreme Court in reading *399 affidavits to the grand jury and in his instructions to them relating to the accusation against the defendant of the crime of which he was subsequently convicted?
Section 313 of the Code of Criminal Procedure provides that "The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases, but in no other: 1. When it is not found, indorsed and presented as prescribed in sections 268 and 272. 2. When a person has been permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, except as provided in sections 262, 263 and 264." Section 671 refers only to dismissals of indictments on motion of the court, or of the district attorney, and need not be discussed.
The words "but in no other" were added to the first paragraph of section 313 in 1897, and were evidently intended to remove all doubts which had been raised as to the meaning of said section by the conflicting decisions of the courts upon that subject. In many cases it had been held that this Code provision, as it stood prior to 1897, could not limit or interfere with the inherent power of the courts to dismiss indictments upon other substantial grounds than those enumerated in the section referred to. (People v. Molineux,
That the legislature has the undoubted right to regulate mere matters of procedure in all actions and proceedings, both criminal and civil, is too well established to require either discussion or citation of authority. But it is equally clear *400 that no legislative enactment can be permitted to deprive the citizen of any of his constitutional rights. From time immemorial our common-law courts have exercised the power to set aside and quash indictments on motion, not only for defects in form, but for irregularities and errors that were proved by extrinsic evidence. Such matters are now regulated by the provisions of the Code of Criminal Procedure, and however inconvenient, or even oppressive, they may appear to be in specific cases, the courts must apply them, as best they can, for they embody the commands of the law-making power in matters wherein its fiat is supreme and final.
But our courts have also always asserted and exercised the power to set aside indictments whenever it has been made to appear that they have been found without evidence, or upon illegal and incompetent testimony. (U.S. v. Coolidge, 2 Gall. 364; People v. Restenblatt, 1 Abb. Pr. 268; People v.Briggs, 60 How. Pr. 17.) This power is based upon the inherent right and duty of the courts to protect the citizen in his constitutional prerogatives and to prevent oppression or persecution. It is a power which the legislature can neither curtail nor abolish, and, to the extent that legislative enactments are designed to effect either of these ends, they are unconstitutional.
The broad application of these principles to the case at bar is simple. So far as said section 313 is intended to regulate only matters of procedure which involve no constitutional rights, it is valid and must be obeyed by the courts; but to the extent that it may destroy, curtail, affect or ignore the constitutional rights of a defendant, it has no force and is void. (People v.Petrea,
The grand jury is an institution that we inherited with the *401
common law. It is for many legal purposes rather difficult of classification. It is neither a regularly organized tribunal, nor yet an entirely informal body. While in a certain sense a part of the court in connection with which it conducts its deliberations, it is, for many purposes, free from any restraint by that court. A grand jury is clothed with power to determine both the facts and the law, and its methods of procedure, so far as they are not discretionary, are fixed by statute and not by rules of courts. The judge or justice presiding at a court held in connection with a grand jury, must charge them, but beyond the explicit direction to read or deliver to them sections 252 to 267, inclusive, of the Code of Criminal Procedure, the character and scope of the charge is largely a matter of discretion. No exception lies to such a charge, and there is no method by which the proceedings of a grand jury can be reviewed, except by motion to dismiss an indictment, or in arrest of judgment. (People v. Dimick,
But it is urged that certain affidavits were read by the justice to the grand jury, and that this was an invasion of defendant's rights, because it was in violation of section 256 of the Code of Criminal Procedure, which provides that "The *403 grand jury can receive none but legal evidence." Here, again, there is an obvious weakness in defendant's contention. An indictment is a record of the court which imports absolute verity until properly impeached. (People v. Hulbut, 4 Denio, 133, 136.) The presumption is that an indictment is based upon legal and sufficient evidence until there is satisfactory proof to the contrary. In the case at bar there is no proof of that kind, unless it is to be found in the reading of the affidavits above referred to. Did the grand jury thus receive illegal evidence? We think not. An affidavit read outside of the grand jury room is not evidence received by a grand jury. It is certainly not evidence when a grand jury is plainly instructed that the allegations of an affidavit must be proven before that body in order to warrant the finding of an indictment. To hold otherwise would be to discourage what may be a very useful and conservative practice in such cases as the one at bar. The learned presiding justice was informed that attempts had been made to improperly influence grand jurors. It was his obvious duty to take some steps in the matter. Did he exceed the limits of his duty and power because he thought it wiser to have sworn statements upon which to base his inquiry than to rely upon unverified rumors? Were the grand jury influenced to any greater extent by the reading of affidavits made by some of its members than they would have been by the oral statements of the justice? Can the reading of affidavits in a court room be sufficient to overthrow the presumption that an indictment was founded wholly upon sufficient and legal evidence received within a grand jury room?
All of these questions, it seems to me, must be answered in the negative, unless we are ready to say that, when an indictment is assailed without proof, it must be upheld by affirmative evidence. In Hope v. People, (
We think it was not error to deny the motion to dismiss the indictment, and as we cannot, in this court, consider the sufficiency of the evidence, the judgment of the Appellate Division must be affirmed.
PARKER, Ch. J., GRAY, HAIGHT and MARTIN, JJ., concur; BARTLETT, and VANN, JJ., not voting.
Judgment affirmed.
