20 Mo. 338 | Mo. | 1855
delivered the opinion of the court.
At the September term, eighteen hundred and fifty-two, of the Circuit Court for Hickory county, John Mullins and Andrew Baker were indicted for the murder of John P. Dorriss.
Mullins was not taken. Baker appeared to the indictment, and had the trial continued on his motion until the next term. At the next term, being March term, 1853, Baker applied for and obtained a change of venue — the court directing the case to be sent for trial to the St. Clair Circuit Court, in St. Clair.county. At the May term, 1853, of the St. Clair Circuit Court, the case was again continued on defendant’s motion, until the next term. At the October term, the case was continued on the motion of the circuit attorney.
At the May term, 1854, the parties appear, and the defendant filed the following motion : “ The said defendant, Andrew Baker, comes into court and alleges he ought not to be holden to answer to this indictment, because he says that the said indictment was not found by any twelve of the grand jury, but simply by a majority of the number who constituted the grand jury panel at the court at which said bill purports to be found, and he now moves the court for liberty to prove these facts by Jonas Brown, Samuel Weaver, Jesse Driskill, Hardy C. White, Oliver Poe, members of the grand jury, and who were grand jurors on the panel aforesaid, and their affidavits are here in court.” After the filing of this motion, the cause was continued. At the October term, 1854, of St. Clair Circuit Court, the parties again appear, and upon hearing the evidence on said motion to quash the indictment, which evidence will be noticed
These affidavits are as follows : “ Jesse Driskill, sworn for defendant, says he was on a grand jury in Hickory county, when the matter against defendant was investigated ; was present when the vote was taken: witness said he did not vote at all.” Cross examined: “A vote was taken on the Baker case; I had a knowledge that a bill would be presented, and had been, as I supposed, by the foreman to the court, as I understood; I requested a count, and the reason was, I did not know that twelve had concurred in finding the bill; 1 had doubts that twelve had concurred ; I did not hear any count made ; if it was done publicly, I did not hear it; I think none was made ; I think Poe, and I think Hardy White, at the time, also made request for a count; the vote was taken by uplifting hands, or making a sign that the jury understood ; but one vote was taken, and those that did not vote had no chance to vote at all.” Re-examined : “Esquire Walker did the writing and Miles put the vote.”
Hardy C. White, sworn for defendant, says : “ I-was one of the grand jury when the Baker case was investigated in court; (it is admitted that White was on the grand jury ;) I was present when the vote was taken on the bill; I had my doubts whether twelve concurred in finding the bill; I did not vote ; there was a request to count the vote again; I can’t say whether it was Judge Brown or Judge Driskill who requested ;. if another vote was taken, I do not recollect it; there was a good deal of talk in the room ; there was a request to have another vote on it; do not recollect the day on which the vote was taken ; I think the vote was taken on the day it -was returned into court; Weaver had left before the vote was taken ; he was not there ; his family was sick, or some one dying.” Cross-examined:
Weaver’s deposition read : “ Was not present when the vote was taken on Baker’s bill of indictment;” the circuit attorney waived any objections to Weaver’s deposition being read.
Elgin Poe, sworn, says: “Was one of the grand jury; I did not vote on the bill of indictment; I claimed another count of the vote, and named it: the reason was, I did not think twelve concurred in finding it; I thought so from what I saw and heard; I know some did not vote; no second vote was taken ; I cannot say how the vote was taken ; whether by rising up, or lifting up their hands ; the vote on this bill was taken but once ; I saw some that did not vote.” Cross-examined : “I was busy looking at the law when the vote was taken ; I do not know how the vote was taken ; I do not recollect about that; it was one of these ways ; I do not recollect whether it was the day after or at the time the request was made to have another vote taken ; I think we adjourned immediately after the' vote was taken ; my memory is dim upon this subject; was present when tho bill was presented to the court; made no objection to the bill being handed to the court; I knew that it required twelve to concur to find the bill; I would have objected, if I had known I had the right to do it; I did not know-what my duty was in that case.” White recalled: “I knew it took twelve to find a bill and named it to Judge Johnson, who was then judge.” Cross-examined: “ This was before the bill was delivered into court and before the grand jury were discharged; I asked Judge Johnson whether it took twelve or not; he said it did; I did not count those who voted for or against the bill; I did not see all who
James Brown, sworn, says : “ I was a member of the grand jury in Hickory; was present when the vote was taken on the Baker indictment; I do not know whether twelve concurred in the bill or not; it was done suddenly ; that is, so that any one could not count it; it was, all that were in favor of finding the bill to hold up their right hand ; the vote was taken by the foreman suddenly, so no one could count; I recollect it well; I requested, by the application of several others, to take another vote ; it was in a few minutes after the vote was taken; Mr. White first named it to me ; Driskill also wished it taken over again ; I did not vote on the bill; no second vote was taken on the bill; it was the first grand jury I was on; I did not think it was my duty to state it to the court; but since, 1 have thought it was.” Cross-examined: “Did not count those for or against' the bill; Walker was clerk; I did not vote for or against.”
William Walker, sworn, says : “ Was a member of the grand jury; a vote was taken on the bill against Baker ; I was clerk and pretty much as foreman ; Mr. Miles was a very old man ; I put the vote myself ; have a distinct recollection myself of it; I do not recollect whether by rising up, or raising up their right hands ; but, if they raised up their right hands, they were also on their feet; I counted twelve votes for it; it was very nigh evening ; I was glad to get through; we then adjourned ; it was the last thing we done that night; I believe twelve concurred in finding the bill ; the vote on the bill was the last thing done.” Cross-examined: “ They were not all on their feet; they stood on their feet when they voted, and whether they held up their hands at the same time or not, I cannot say; I knew they all did not vote; I think the greater part were sitting down when the vote was taken ; I counted just twelve ; those that I did not, sitting ; there was confusion when the vote was put; I
1. The main question for the consideration of this court is, the propriety of the decision of the Circuit Court, in permitting defendant to introduce the evidence of the grand jurors in support of his motion. We consider this act of the Circuit Court to be contrary to the law; and its judgment in sustaining the defendant’s motion is erroneous, and must be reversed. This whole question rests upon our statute law, and I will now proceed to notice its provisions. Not more than eighteen persons are to be summoned as grand jurors, and not less than fifteen sworn to compose the body. It is the duty of the circuit attorney, when required by the grand jury, to attend them for the purpose of examining witnesses in their presence, or giving them advice upon any legal matter. The circuit attorney is allowed, at all times, to appear before the grand jury for the purpose of giving information relative to any matter cognizable before them, and be permitted to interrogate witnesses before them, when he or the grand jury shall deem it necessary. “ But no such attorney or any other officer or person, except the grand jurors, shall be permitted to be present during the expression of their opinions, or the giving their votes on any matter before them.” (Practice and Proceedings in Criminal Cases, art. 3, sec. 7, p. 864, R. 0.1845. Secs. 15 and 16, (same article,) are as follows : “ See. 15. Members of the grand jury may be required by any court to testify, whether the testimony of a witness examined before such jury is consistent with or different from the evidence given by such witness before such court; and they may also be required to disclose the testimony
Sec. 20 requires the foreman, when twelve grand jurors do not concur in finding the indictment, to certify, under his hand, that such indictment is not a true bill.
The 21st section declares that, “Indictments found and presentments made by a grand jury shall be presented by their foreman, in their presence, to the court, and shall be there filed, and remain as records of such court.”
One clause of the grand juror’s oath is as follows : “ The counsel of the state, your fellows and your own, you shall well and truly keep secret.” This part of the oath has no limitation as to time ; it is not to keep secret during the term the grand juror is acting as such, nor during the term of the court; but he is “ well and truly to keep secret.” The grand jtiror has an important trust to perform. He is required to make diligent inquiry into the various breaches of the laws of his -state, within his county, whose punishment is preceded by indictment. It is often a disagreeable duty ; often an irksome task ; yet, under his oath, he is bound to perform it. He is a member of a secret inquest, with ample power to ferret out offences : he is charged to assist in doing this. Now, in order to protect Mm, as well as to secure the punishment of the guilty, strict and rigid secrecy is required and enjoined upon the members of this inquest. The grand juror is expressly exempted from all obligation to testify in what manner he or any other member of the grand jury voted on any question before them, or what opinions were expressed by any juror in relation
Our law expressly makes all such indictments as are returned into court by the foreman, in the presence of the grand jury, and endorsed by him as “ a true bill,” and filed by the court, records of the court, and records cannot be averred against. No matter how much I am disposed to respect the learning and practical sound sense of the Maine court, I can never consent to do away with our statutory requisitions, because that court decided a similar case otherwise than I am warranted in doing.
The doctrine now laid down by this court cannot produce harm ; for an innocent person will not be hurt by refusing to go behind the indictment and see how it was found, for he can always vindicate himself in a trial upon the merits.' This doctrine, too, violates no law, by rendering that public which the law deposits in the breast of a grand juror as áfi inviolable secret. Our law declares that no exception to a juror, on account of his citizenship, non-residence, state or age, or other legal disability, shall be allowed after the jury are sworn. This extends to criminal as well as civil cases.
The novelty of this proceeding is also against it. For nearly thirty-four years’ practice at the bar and on the bench, in this state, I have never seen a similar proceeding. This is .the age of progress, however; but let us not overturn the old land marks, unless we see plainly and beyond all doubt that no harm can arise to the community, and much good may. It is a general principle that no juror, grand or petit, can be heard in
Here the caption contained the defect. But this authority does not have the least bearing on the question in this case. Hawkin’s words, “ or otherwise,” and the mere expression of a supposition that “ it might become a subject of inquiry upon a suggestion to the court,” by Judge Sewall, have become the foundation for the opinions in Low’s case, under the constitution of Maine, and are now urged here to induce this court to overturn our plain and positive statutory regulations.
There is error in .the Circuit Court in'permitting the affidavits of the grand jurors, in this case, to be taken and read on the defendant’s motion to quash. The judgment below is reversed, and this case is remanded for further proceedings ;