1 Nev. 509 | Nev. | 1865
foil Bench concurring.
Tbe defendant was indicted by tbe Grand Jury of tbe County of Ormsby for a refusal to pay over certain money to tbe County Treasurer wbicb was c olleeted by him as Tax Collector of that county. Upon tbe 21st day of March, A. D. 1865, tbe defendant, by bis counsel, moved tbe Court to quash tbe indictment upon tbe grounds, as stated in tbe notice of motion, that it “was found upon illegal and incompetent evidence, wbicb illegal and incompetent evidence was improperly permitted to go before the Grand Jury, and was improperly beard, considered and acted upon by them.”
It is also stated that such illegal and incompetent evidence was the only evidence submitted to said Grand Jury.
To sustain this motion, one of tbe Grand Jurors who found tbe indictment, and some of tbe witnesses who testified before them, were called for tbe purpose of showing what tbe character of tbe testimony was and what certain witnesses testified before them.
The counsel for the people objected to tbe entire proceeding, which beiug overruled, one of the Grand Jurors was examined as to tbe character of tbe testimony upon wbicb tbe indictment was found, from wbicb it appeared that the books of account kept by tbe Treasurer and Auditor of Ormsby County, were received and acted upon by tbe Grand Jury, and also some receipts and other papers, together with the Treasurer’s account with tbe defendant. Witnesses were also questioned as to what they testified before the Grand Jury, all of wbicb was allowed, tbe entire proceeding apparently being for tbe purpose of showing that incompetent testimony was received and acted upon by tbe Grand Jury in finding tbe indictment against tbe defendant. It was not even attempted to be shown that there was not sufficient competent testimony to authorize tbe finding of tbe indictment. Tbe Court below sustained tbe motion and entered judgment quashing tbe indictment and releasing tbe defendant’s bail. Upon these facts four questions are presented to this Court for determination :
Fvrst — Is tbe quashing of an indictment and ¡releasing the
Second — Does the admission of incompetent testimony by a Grand Jury authorize the setting aside of an indictment upon the finding of which such incompetent or illegal testimony was received and considered ?
Third — Is it competent for a member of a Grand Jury to testify as to the character or sufficiency of the testimony before them, upon the finding of an indictment ?
Fo'u/rlh — Was the testimony received by the Grand Jury, upon finding the indictment in this case, incompetent or illegal ?
In support of his position on the first question, counsel for respondent claims that the order made by the Court quashing the indictment and exonerating defendant’s bail, is not a final judgment from which an appeal can be taken. By the 469th section of the Criminal Practice Act, it is provided that an appeal may be taken “to the Supreme Court from a final judgment of the District Court in all criminal cases.”
A judgment is final which completely disposes of the action. To make it final it is not necessary that the rights of the parties should be finally determined, or that it be upon the merits. It is final if it disposes of that particular suit in which it is rendered. As stated by the Court in the case of Belt v. Davis (1 Cal. 138), “A judgment of nonsuit other than where the plaintiff submits to a voluntary nonsuit, is a final judgment, even though no costs be awarded against the plaintiff, inasmuch as he is aggrieved by being defeated of his right of action in that suit and his costs in prosecuting it.”
In the case of Weston v. The City Council of Charleston (2 Peters, 449), the Supreme Court, in construing the 25th section of the Judiciary Act of the United States, which provides that a final judgment or decree in any suit in the highest Court of the State, may be re-examined, reversed or affirmed in the Supreme Court, it was held that the words “ final judgment” in that section must be understood to apply to all judgments or decrees which determine the particular cause, and that it was not requisite that such judgments should finally determine the rights which are litigated.
The proposition that if a Grand Jury receive and consider any but legal proof, the indictment found by them may be quashed, upon that fact being shown to the Court, having no authority to support it, and being so manifestly repugnant to the utility of the entire Grand Jury system, scarcely justifies an extended consideration. It is urged on behalf of defendant that as the law provides that “ the Grand Jury shall receive none but legal evidence, and the best in degree to the exclusion of hearsay or secondary evidence,” the admission of hearsay or secondary evidence maybe taken advantage of on motion to set aside the indictment under section 275, which declares that it shall be set aside by the Court, on the motion of defendant, where it is not found indorsed and presented in the manner prescribed by the Criminal Practice Act. That if any but the best legal evidence is received, the indictment is not found in the manner prescribed by the Act. The answer to this simply is that the finding of the bill has no reference to the evidence upon which it rests, but only to the fact that the Grand
But the reason of the rule will not authorize the setting aside the indictment, merely, because evidence not of the best legal character is received and considered. If there be nothing to support the bill but evidence clearly incompetent, and which would not be admissible at the trial, as the sole testimony of a person rendered incompetent by conviction of an infamous crime, the indictment may be'quashed before plea (1 Wharton’s American Criminal Law, sec. 493), but where there is the slightest legal evidence, the Court cannot inquire into its sufficiency, or set it aside, because some illegal evidence was received with it. But to authorize the setting aside of an indictment even where there was no legal evidence at all to sustain it, that fact must appear by proof independent of the testimony of the Grand Jurors, for it is inadmissible for them to show that an indictment presented by them was found without testimony, or upon insufficient testimony. (Wharton’s American Criminal Law, secs. 508, 509.)
This was the rule at common law, and seems to be generally recognized throughout the United States. (Rex v. Marsh, 6 Adolphus & Ellis, 236; State v. McLeod, 1 Hawks, 344; State v. Baker, 2 Miss. 538; The People v. Hulbut, 4 Denio, 135;
The only exception to this general rule seems to be that where a person is indicted for perjury on account of false testimony before a Grand Jury, the jurors may be called as witnesses to prove wliat was sworn to before them. So it has been held that they may be called to show that an indictment was not found by the requisite number, though this is in conflict with the common law rule. But to receive the testimony of a Grand Juror for the purpose of impeaching or affecting tiie finding of his fellows, is a practice not yet sanctioned by the Courts, and it is to be hoped never will be.
Where indictments have been quashed on account of there being no legal evidence to sustain them, it has invariably been in those cases where that fact was shown without calling upon the Grand Jurors; as, for instance, where the law requires the names of the witnesses examined to be indorsed on the indictment, and the name of but one witness is so endorsed, who is shown to be incompetent by reason of some legal disability.
That is a fact which could be proven without calling upon the Grand Jurors, and when it is shown to the satisfaction of the Court, it would be proper to quash the indictment.
But if the practice adopted by the Court below were in fact, correct, the bill should not have been quashed, for the evidence received by the Grand Jury, so far as we are able to ascertain what it was from the record, was entirely competent, and of the best legal character.
J udgment reversed.
