Lebowitch v. Commonwealth

Rugg, C. J. 1. The main question presented on these records is whether the fact, that at the hearing before the grand jury which returned the indictment against William Lebowitch all the witnesses including police officers were present in the grand — 361 — jury room and within hearing at the time when each witness gave his testimony, can be raised after trial; verdict and sentence, in instances where this fact did not come to the knowledge of the person indicted or his counsel until after sentence. It was decided in Commonwealth v. Harris, 231 Mass. 584, that a plea in abatement before a general plea of not guilty based on such facts should be sustained. That result was required by Jones v. Robbins, 8 Gray, 329. Those decisions are based upon the fundamental conception that proceedings before the grand jury must be in secret. In an opinion by the justices reported in 232 Mass. 601, the Senate were advised that a statute permitting police officers to be present in the grand jury room during the examination of other witnesses would be contrary to the right secured by art. 12 of the Declaration of Rights because violative of the essential secrecy of the grand jury. The chief argument of the district attorney in the case at bar has been directed to the point that that which has been thus declared should be relaxed in favor of a looser and what may be thought more expeditious practice. The matter was carefully considered at length on these two late occasions.. Decisions in other jurisdictions now called to our attention were fully examined and maturely considered before these opinions were announced. The conclusions there reached were deliberate. Renewed study of the whole subject does not lead to the result that any erroneous or mistaken view there was set forth. The evil of the contrary practice is denounced by some courts which do not hold it unlawful. State v. Wood, 112 Iowa, 484, 486. Sadler v. State, 124 Tenn. 50. Lawrence v. Commonwealth, 86 Va. 573, 577. While there are adjudications expressing an opinion different from that of this court, many of them arose with reference to the presence of stenographers whose aid was thought to be necessary. The grand jury as known to the common law always has been regarded as a bulwark of individual liberty and a fundamental protection against despotism and persecution. The rule of secrecy of its hearings and deliberations has come down from early times. There is nothing new about it. Adherence to it, which has been doubtless more strict in some counties than in others in recent years, has never been commonly thought burden- ■ some or found in practice to result in any inefficiency in the in — 362 — quest. One purpose of the grand jury in making its investigations and accusations is to ascertain truth. Where that end in its essence cannot be achieved without the presence of more than one person,- the rule that only one person may be present is not applicable. For example an interpreter must be in the grand jury room at the same time with the person ignorant of the English language. A prisoner of desperate character brought on habeas corpus to testify before the grand jury might be taken into its presence under guard. An indispensable attendant for a sick or disabled witness would not contravene the rule. Where for example a ballot box is by law in custody of one person and the key to it in that of another and the grand jury needs to examine the contents of the box, the presence of the two officials necessary to open it would not be a violation of the rule. See Cochran v. State, 119 Md. 539. Such instances, however, rest upon inherent necessity and not upon convenience. It is only when some imperative compulsion requires it to prevent a miscarriage of justice or an utter failure of the investigation imposed by law upon the grand jury that more than one stranger at a time may be before the grand jury. That is not a relaxation of -the established and constitutional method of examination of witnesses before the grand jury but a part of it. The reasons stated and the conclusions reached in Commonwealth v. Harris, 231 Mass. 584, and in Opinion of the Justices, 232 Mass. 601, need not be repeated. They are approved and adopted as the basis of this decision. The practice to the contrary prevailing in Suffolk County for more than forty years, as averred in the plea in nullo est erratum, manifestly cannot override the fundamental law. Such an objection to an indictment as is here specified can be raised only before the general plea of guilty or not guilty. That was settled in Commonwealth v. Tucker, 189 Mass. 457, 463. Although the point is not discussed at length in that opinion, it was unequivocally decided. The special plea and motion to quash offered in that case after plea of not guilty but before’ trial, were based in substance upon irregularities the same in kind as those here relied upon. That' decision is decisive against contentions of the present petitioner and plaintiff. It is sound. The matters set forth are essentially in abatement. They do not — 363 — affect the jurisdiction of the court over the crime or over the defendant. Even constitutional rights must be seasonably asserted. A general plea to the indictment admits its genuineness. It is a waiver of matters in abatement. Commonwealth v. Wakelin, 230 Mass. 567, 570. Commonwealth v. Blake, 12 Allen, 188. Commonwealth v. Lannan, 13 Allen, 563, 567. State v. Carver, 49 Maine, 588, 593. United States v. Gale, 109 U. S. 65. See Cole v. Ackerman, 7 Gray, 38, 40. 2. The defendant was convicted upon two counts joined in one indictment, each count charging him with an attempt to commit larceny from the person, the individual named in each count being different. He was sentenced for both offences to confinement in the House of Correction for thirty months. There is no error of law to the harm of the defendant in this sentence. R. L. c. 208, § 24; c. 215, § 6, cl. 2; c. 220, § 19. The reasons are elaborated in Kelley v. Commonwealth, 215 Mass. 209, Lane v. Commonwealth, 161 Mass. 120, Commonwealth v. O’Neil, 188 Mass. 330, Commonwealth v. Cline, 213 Mass. 225, and need not be repeated. 3. Although the indictment charged the defendant in successive counts with distinct offences of the same general nature committed against different persons, there was no error of law in putting him to trial upon both counts at the same time. Commonwealth v. Mullen, 150 Mass. 394, 397. Commonwealth v. Rosenthal, 211 Mass. 50. Commonwealth v. Szczepanek, post, 411. 4. The refusal of the judge to stay execution of the sentence is not subject to review in this proceeding. Sentence must be imposed upon conviction of a crime not punishable by death notwithstanding exceptions, although the execution may be stayed if the justice imposing it or a justice of the Supreme Judicial Court files a certificate, that in his opinion there is reasonable doubt whether the judgment should stand. R. L. c. 220, § 3. This statute is constitutional. The judge was not obliged to state his reasons for refusing to grant a stay. Commonwealth v. Brown, 167 Mass. 144, 146. No error is shown in this or any other particular. Judgment affirmed. Petition for writ of habeas corpus denied.