221 F. 462 | S.D.N.Y. | 1914
I. think I will dispose of this matter at the present time. In so doing I trust counsel will not think that I am reaching a decision hastily or without due consideration, because every spare moment I could get since the list of authorities was furnished me on Friday has been given to a study of the matters that are involved. Prior to receiving the list of authorities I had examined many of them, and since then I have examined all of them very fully.
At the outset I may say that I am entirely in accord and in sympathy with the utterances of one of the counsel for the de
I do not care to pass upon some of the contentions that are made by counsel, and I say that without regard to the merits or want of merits of such contentions, because I believe that the decision of these matters can be placed upon broader and higher grounds than some of those which have been urged.
Among the contentions of counsel which I do not care to pass upon is the one that these pleas in abatement are insufficient in that the conclusions or prayers are in bar instead of in abatement.
Another contention that I do not care to pass upon is that the averments in the pleas of want of knowledge and information as to the presentment of the indictment, and as to the allegations of the indictment, and as to the regularity of the proceedings in summoning and drawing the grand jurors who presented the indictment, follow the tenders of issue and therefore are mere surplusage, adding nothing to the pleas. It does
Coming then to the specific and. substantial questions 'presented by the pleas: First, as to plea in abatement No. 1. It is here claimed that the indictment is invalid and insufficient and ought to be quashed because it was not returned and presented by a legally constituted grand jury, in that a person, who was not authorized so to do, placed some of the names in the jury box from which the grand jurors were drawn, and the clerk of this court, upon whom that duty is imposed by statute, did not act. It is true that the averments and allegations of a plea in abatement must be made with strict and exact accuracy. This requirement is not technical, or at least if it is technical, it is meeting one technicality with another. In cases where special injury is not alleged, save such injury as may follow from a failure to observe the necessary requirements of the law, strict accuracy ought to be required. I do not think this plea in abatement can be sustained for two reasons: First, I am unwilling to subscribe to the doctrine that a deputy clerk may not act under any circumstance in the placing of names in the jury list or in the jury box. Congress in its wisdom has seen-fit to authorize the appointment of deputy clerks. With some exceptions, the duties of deputy clerks are not specifically defined or prescribed. It must be assumed that Congress intended that the word 46 deputy ” should have its ordinary and usual meaning, and thus that the deputy clerk, under certain conditions, might act in the place of the clerk. He is a person to whom the duties of clerk are deputed. That is the ordinary and natural meaning of the word. And in the event that the clerk of the court is incapacitated, is absent, cannot be present, is sick, or disabled, and cannot perform the duty which the law» imposes upon him, under such circumstances, I believe that the deputy clerk may act. It is true that Congress has seen fit, for purposes with which we are all acquainted, historically at least,
Another reason why plea in abatement No. 1 cannot be sustained is this: It is alleged that Mr. Tallman placed in the box certain names, and I think fairly alleged that those names were in the box at the time this grand jury was drawn. It is not alleged that all the names in the box were placed there either by the commissioner or by this deputy clerk. In fact, the fair inference is to the contrary. There is no allegation in this plea that any one of the grand jurors who were drawn and acted and returned this indictment was one of the jurors whose name had been placed in the box by Mr. Tallman. It is not sufficient to say that the defendants in this case do not know whether or not vany of the names placed in the box by Mr. Tallman was drawn.
Upon these two grounds, without considering the other questions that have been raised or the other objections that' have been urged, the demurrer to this plea should be sustained and the plea in abatement overruled.
The second plea in abatement is without merit. The plea utterly ignores an order of this court which was fully justified and expressly authorized by the provisions of the Judicial Code (secs. 8 and 284). The Federal Courts have decided that a proceeding before a grand jury is a “ case ” or “ cause.” In and by section 284 of the Judicial Code, Congress has provided that the “ court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so.” The apparent purpose of this legislation was to provide a way in which a grand jury, with the permission of the court, may complete and conclude any investigation which it has actually commenced. In a district like this one, having monthly terms of court, it must frequently happen that a grand jury will not be able to conclude its work upon a long and complicated case before the expiration of one term and the commencement of another. If, under such circumstances, a grand jury cannot be permitted to finish its labors, there will follow much unnecessary expense, many unfortunate delays, frequent and severe hardships for the accused, and, sometimes, a complete failure of justice. The statute plainly provides a sure and simple means of avoiding these and other serious evils.
The third plea in abatement presents somewhat more serious difficulties. I cannot agree with counsel for the defendants in what may be termed a prophecy that the courts and Congress will soon decide and determine that stenographers shall not be permitted in the grand jury room except under severe restrictions and with enlarged privileges to the accused. In my judg
The demurrers to the pleas will be sustained and the pleas will be overruled.
Mr. Swacker: I move judgment respondeat ouster and that they be required to file their new answers forthwith. They have had about four weeks since the return of this indictment.
Mr. Lindsay: Will you permit us to file our joinders so that the record may be clear, to-morrow as of to-day?
The Court: The joinders will be received to-morrow, and they will be filed as of this date.
Mr. Lindsay: And may we take an exception to your honor’s ruling, in each instance, for each defendant?
Mr. Lindsay: And that the joinders may be filed by counsel without the personal signature of the defendants.
The Court: I think the record should be made complete and formal; but the clerk will file the joinders as of to-day.