4 Denio 133 | N.Y. Sup. Ct. | 1847
Grand jurors are sworn to secrecy ; and, as a general rule, what takes place before them is privileged from disclosure. The clerk of the grand jury cannot be compelled to reveal the proceedings before them ; (Vin. Ab., Evidence (B. a.)pl. 5,) nor can the county attorney. (McClellan v. Richardson, 13 Maine Rep. 82.) And in Massachusetts it has been held, that the attorney for the commonwealth cannot be called to disclose what passed in the grand jury room. (Commonwealth v. Tilden, 2 Stark. Ev. 324, note.) But, in an action for maliciously indicting the plaintiff, Lord Kenyon allowed a grand juryman to be asked whether the defendant was the prosecutor of the indictment. He thought such a disclosure did not infringe upon the juryman’s oath. (Sykes v. Dunbar, 2 Selw. N.P. 1091, ed. of ’39; Roscoe Cr. Ev. 150, ed. of ’36.) The same has been held in Pennsylvania. (Huidekoper v. Cotton, 3 Watts, 56.) In this state members of the grand jury may be called for the purpose of showing that the testimony of a witness examined before them was either consistent or inconsistent with the testimony which he gives on the trial; and also for the purpose of indicting, or trying the witness for perjury. (2 R. S. 724, § 31.) The same thing had, I know, been held by some of our subordinate courts of criminal jurisdiction, before the statute was enacted. There is nothing in requiring such disclosures which is calculated to restrain freedom of deliberation and opinion among the grand jurors, or to overawe them in the discharge of their duty. (See McLellan v. Richardson, 13 Maine, 86.) But here, the evidence which the defendant proposed to give could amount to nothing less than an impeachment of the grand jurors. They
There is-a further objection to the evidence which the defendant wished to give. The indictment, when presented in due form by the grand jury, and filed in court, is a record; and like other records, imports absolute verity. It cannot be impeached unless it be done upon motion, by showing that it was not founded upon sufficient evidence, or that there was any other fault or irregularity in the proceedings. It can neither be done by plea averring against the record, nor by evidence on the trial. In Low’s case, (4 Greenl. 439;) the grand jurors were allowed to testify that they acted under the mistaken impression that it was sufficient if a majority of the jurors concurred in finding the bill; and that twelve of their number had not in fact agreed to the bill in question. But this was not on a trial before the traverse jury, but on a motion; and the court fully recognized the distinction between attacking a record in a collateral proceeding, and a motion to set aside or amend it. So long as the record' remains, no defect in the evidence upon which it was founded, nor any irregularity in the proceedings, however great, can furnish any answer to it. But when the ends of justice require it, a record may be set aside on motion; and when set aside that is an end of it.
If the defendant, instead of pleading and going to trial on the indictment, had moved to quash or set it aside, or to strike out the first four counts, it is possible that the motion would have been granted. But that is a question on which I do not intend to express any opinion. On the trial, neither the court nor the jury could have any thing to do with the proceedings in the grand jury room. Their only office was to inquire
This disposes of all the questions made on the argument, ex-tv ¿pt the objection to allowing proof that the defendant kept a bar with bottles in it. This was after evidence had been given that the defendant kept a public house. It would be strange indeed that a man may be convicted of murder upon circumstantial evidence; and yet the same kind of evidence may not be given when the trial is for selling spirituous liquor without a license. There is nothing in the objection.
New trial denied.