State v. Fasset

Williams, Ch. J. As to the first objection, there is no doubt that the witnesses before the grand-jury should be — 464 — sworn, and in such a manner, that if the testimony was false, they might be indicted for perjury, as was ruled by Judge Story, in The United States v. Coolidge, 2 Gallis. 364. And where, after conviction, it was shown to the court, that the witnesses before the grand-jury were not sworn, the judges recommended the prisoner for a pardon. Rex v. Dickinson, Russ. & Ry. Crown Cases, 401. And so where the witnesses were sworn, by the proper officer, but on a day when the court was not open, Parke J. and others, sitting under a special commission, held, that the proceedings were irregular, and the witnesses could not be indicted for perjury. 6 Car. & P. 90. (25 E. C. L. 297, 8.) So in the prosecution against Biddle & al. Judge Barton held, that the proceedings were irregular, the witnesses not being sworn in open court, nor by the grand-jury themselves, in the manner prescribed by the statute; and in that case, it is said, that the oath was extra-judicial, and the witnesses could not be indicted for perjury. Nov. 1841. The practice in England, and in the courts of the United States, certainly is, that the witnesses should be sworn in open court; growing probably out of the fact that formerly grand-juries met with the court, and the proceedings seem to have been carried on under the eye of the court. Nothing then was more natural than that, under such circumstances, the grand-jurors should be sworn by the officer of the court; and this practice has been followed in many of the states. By the laws of this state, a provision was early made, that every town should choose two or more sober, discreet persons, to serve as grand-jurors, to be sworn by the next assistant or justice of the peace, who were authorized to make presentments. They were to meet quarterly, or oftener, to inquire into breaches of the law; to call witnesses before them for examination; and if such persons, after being duly summoned, by warrant from an assistant or justice of the peace, refused to be examined on oath, such magistrate might commit them to gaol; and the names of the persons so chosen were to be returned to the clerk of the county court; from which number he was to summon the grand-jurors to serve at the county court. In 1784, the statute was altered so far that the superior and county courts might order a grand-jury from those chosen by the towns, or other sufficient freehold — 465 — ers. Stat. of 1808. pp. 371. 373. Under these circumstances, it was very natural that the grand-jurors of the respective towns, when eighteen of them met together, at the call of the court, should pursue the same course as to the witnesses, as when met in their respective towns; and that they should suppose that a justice of the peace might as well summon and swear the witnesses, as where a smaller number of grand-jurors had convened. Whether the practice originated from this circumstance, or whether it was thought more in accordance with the simplicity of our practice—the custom of administering the oath to the witnesses in the jury room, by a magistrate, has been uniform; and so far as we are informed, no witness has ever been sworn in our courts, and sent to the grand-jury for examination. A practice so ancient and so uniform, growing up under the eyes of the court, is certainly strong evidence of what is the law. If the law requires every witness examined by the grand-jury to be sworn in court,—is it possible, that when it must have been known almost necessarily to court and counsel, in the numerous cases in which indictments have been found, that witnesses were not sworn in court,—that no lawyer and no judge should have ever before doubted the legality of these indictments? In mere matters of practice, our courts have not, in many instances, pursued the course of the English courts; and in this very case, had the clerk sworn these witnesses as it is claimed he should have done, we see not why an objection might not have been made that the crier ought to have done it, as it seems the practice is in England. 6 Car. & P. 90. (25 E. C. L. 298.) The only substantial reason, which has been given in the case alluded to, is, that the witnesses could not be convicted of perjury. That would seem to depend upon the other question, whether the oath was lawfully administered; for this court has decided, that where an oath was lawfully administered, in any proceeding in a course of justice, the witness who swore falsely, was guilty of perjury;—as where a witness was sworn by a magistrate to testify before an arbitrator, or before an ecclesiastical tribunal; (Chapman v. Gillet, 2 Conn. R. 40. Lyman v. Wetmore, Id. 42. n.) where a poor debtor swore falsely, under the oath provided for such cases. Arden v. The State, 11 Conn. R. 408. — 466 — In England too, it has been said, by an able judge, that all that is required in an affidavit, as the foundation for a criminal information, is that which is required in every other case, that the affidavit be made in a judicial proceeding, when the party swears at the hazard of a prosecution for perjury, if it be false. Lord Kenyon then goes on to say, in that case, the affidavit was taken before a judge who had authority to administer an oath, and made in the course of a judicial proceeding, and relevant to a material point in issue. The King v. Jolliffe, 4 Term R. 291. If these cases are regarded as law, we think this court would hold, that if these witnesses before the grand-jury swore falsely, they were guilty of perjury. And further, it seems now doubtful whether even in Great-Britain the courts would suffer the inquiry to be made whether the oath was regularly administered to the witnesses. In a recent case, the counsel suggested to the court, that it was doubtful whether the witnesses before the grand-jury had been properly sworn; Gurney, B. and Wightman, J. held, that this was not a matter which they ought to inquire into, and that the mode of swearing the witnesses to go before the grand-jury, if incorrect, would not vitiate the indictment; as the grand-jury were at liberty to find a bill upon their own knowledge merely, and were formerly continually in the habit of doing so. Wightman, J. added, that the same view of the subject had been taken by him and Lord Denman, in a case on the Northern circuit. Regina v. Russell, 1 Car. & M. 247. (41 E. C. L. 139.) The court are satisfied that this objection ought not to prevail. It is further urged, that the indictment shall be quashed because some of the witnesses were permitted to testify before the grand-jury to the declarations of the deceased as to the assault, when the accused was not present, and when Mr. Dwight was not in a dying state; and this fact they offer to prove, by the grand-jurors themselves, and by the witnesses who were before the grand-jury. On the part of the state, an objection was taken to this testimony, as it respects the testimony of the grand-jurors themselves. It has been settled, by this court, that petit jurors cannot be permitted to testify to facts occurring among them — 467 — selves to impeach their verdict. It has been considered inconsistent with sound policy and as opening a door to the most pernicious acts. The State v. Freeman, 5 Conn. R. 348. Mead v. Smith, 16 Conn. R. 346. and the cases there cited, confirmed by the recent case of Clum v. Smith, 5 Hills, 560. It is said, that the testimony offered is not to prove misconduct in the jury, as was the case of State v. Freeman, but mere mistake. We do not understand that the principle applies merely to misconduct, but quite as much to mistake. It goes to this, that the jury-room is not to be open to these inquiries, whether they relate to the reasons of their opinion, or to the motives by which they were actuated. And we cannot see why the principles which governed the court, in the case of the petit jurors, is not equally applicable here. There are considerations which seem to make the objections stronger in case of the grand-jury than the petit jury. The injury to the party is of less magnitude, as this is a mere preliminary inquiry, by which the accused is put upon his trial; and formerly this was done only upon probable cause shown. 2 Hale’s P. C. 157. 1 Chitt. Cr. L. 318. In the other case, the decision is final, and fixes the fate of the party. Again, it is the peculiar policy of the law, in the furtherance of justice, that this preliminary inquiry should be conducted in secret. The oath, therefore, which grand-jurors take, is entirely different from that of petit jurors, especially in criminal cases. In the latter, there is no allusion to the secrets of the cause; and in civil causes, they are to speak nothing to any one, and to keep secret their verdict until they deliver it up in court. Stat. 485. (ed. 1838.) The grand-jury swear “the secrets of the cause, their own and their fellows, they will observe and keep.” Stat. 484. The secrets of the cause must relate to the persons accused, the witnesses, who they are and what they testified. “Their own and their fellows secrets” must refer to the deliberations and the votes of the grand-jurors themselves. And it was very early decided, that a grand-juror should not be allowed to swear what was given in evidence before the grand-jury, because he is sworn not to reveal the secrets of his companions. Clayt. 84. 12 Vin. Abr. 20. tit. Evidence. H. 4. An exception to this may be found when a witness testifies differently on the trial before the petit jury, from what he did before the grand468 jury: then the grand-jury may be called to contradict him, on that trial, or on his trial for perjury; (though this, it is said, has been denied.) Imlay v. Rogers, 2 Halst. 347. In Pennsylvania, it has also been held, that a grand-juror may prove who was the prosecutor; but it is because it is not considered within his oath. 3 Watts, 260. These cases rather tend to establish the general principle than to impair it. Scarlett's case, however, is much relied upon. That was an indictment on the Stat. of 11 Hen. 4. c. 9. for procuring himself to be sworn upon the grand-jury, with intent maliciously to indict his neighbours, &c; and in stating the case, Lord Coke gives a history of the facts which led to it—that at a sessions of the peace, Scarlett requested the sheriff to put him on the grand-inquest, which he refused to do; and notwithstanding, by confederating with the clerk, he was sworn, and of his malice, and upon his own knowledge, as he pretended, seventeen honest men were indicted upon divers penal laws. And the reporter adds, some of the justices looking over the bills, demanded of them of the inquest, what evidence they had to find the said bills; and they answered, by the testimony of Scarlett. 12 Co. 98. Here was no action of any judicial tribunal; but some of these justices of sessions, in the familiarity of ancient time, did ask the grand-jury upon what evidence they indicted these seventeen honest men. That was doubtless the case of persons indicted per famam patriæ—that is, common report. In such cases, it became the judge, if he had any doubt or suspected the jury, to make strict examination into the matter, and ask the twelve how they learnt what they, in their verdict, declared concerning the persons indicted; and upon their answers, he might judge whether the charges were founded in truth or malice. 2 Reeve's Hist. Com. L. 31. cites Bract. 143. In this case, the party might be admitted to bring in his compurgators. In the case reported by Coke, the grand-jury were not inquired of, nor was it necessary. Scarlett was not indicted for what he did on the grand-jury; but the gist of the indictment was, for fraudulently procuring himself placed upon the inquest, when in fact he was not returned. This, with the fact that he acted with them, which was matter of public proof, was all that was necessary for his conviction; and certainly the loose conversation of the court of sessions in a — 469 — process now unknown, cannot be an authority upon which this court can be called to act—more especially, as the case of Scarlett is never cited in support of such a claim. Another case was also alluded to, where it was held, that if a bill was presented to the grand-jury, with the names of infamous witnesses alone endorsed thereon, on application to the court, the grand-jury would be told to reject it. 1 Chitt. Cr. L. 319. Hawk. Pl. C. c. 2. s. 28. n. 143. This case proves indeed, that no reliance is to be placed upon an infamous witness—in other words, that such person cannot be a witness; and if there be no other, a bill ought not to be found. But it does not bear upon the question whether grand-jurors might testify to facts before them. In the case put, the name of the witness appeared upon the bill alone; the fact of his infamy must have been derived from other sources; it could be proved only by the record. The case, therefore, has no application to the obligation of secrecy imposed by the oath of a grand-juror. Formerly, if a grand-juror disclosed to a person accused the evidence before them in his case, he became accessary to the crime, if it was felony, and a principal, if it was treason; and now it is a high misdemeanour. 4 Bl. Com. 126. 1 Chitt. Cr. L. 317. To be sure, the offence of communication to a third person, might not be as great; but as in this way it might reach the accused, it was an offence. It is said, this was to prevent knowledge of these facts reaching the ears of a person accused, lest he should flee, or suborn witnesses, or interfere in some improper manner with the witnesses against him, and as by our law the accused may be present at the hearing, he has all this knowledge. It is true, that by the liberality of our practice, a prisoner may be present during the examination of witnesses before the grand-jury. But our constitution, and the oath of the grand-jury recognize presentments, as well as indictments by the grand-jury, in which case the accused would not be present; and the accused is never present at the deliberations of the grand-jury; of course, cannot know individual opinions. And one important reason for this secrecy, is, to secure freedom of opinion and deliberation among the grand-jurors themselves. McClellan v. Richardson, 1 Shep. 82. And so long as the present oath is taken, the same secrecy is required as to the secrets of the cause, — 470 — as is required in relation to the secrets of the jurors themselves. Again the elementary writers all speak of secrecy as not only consistent with, but essential to, the nature of the institution. Davis Prec. Ind. 12. cites Hale's P. C. 161. 4 Bla. Com. by Christian, n. 6. Greenleaf says, it is the policy of the law, that these proceedings should be private. Greenl. Evid. 287. Swift says, nor ought grand-jurors themselves to disclose their proceedings, or the testimony given before them; though he thinks this is not regarded in practice in this state. 2 Sw. Dig. 371. In Massachusetts it is also said to be too often disregarded, rather from inattention than design. Davis Prec. Ind. These authors are here stating facts, not law. The court is to determine what is the law. It is said, however, that this secrecy is confined to the time the case is under consideration. The books speak no such language. Roscoe says, the grand-jury are bound upon oath not to disclose the matters which pass before them; yet they may be called to prove who was the prosecutor. Rosc. Cr. Evid. 149; and Davis, who filled the place of solicitor-general in Massachusetts, for thirty years, with great ability, says, that it is a principle constantly given in charges to the grand-jury, that the obligation of secrecy is perpetual, and that a grand-juror cannot be absolved from it, at any period of his life; and nothing, he adds, can be more rational or salutary than the principle. Davis Prec. Ind. 13, 14, 16. And it is now incorporated in the revised statutes of that state, p. 738. chap. 136. sec. 13. We do not feel authorized to change the construction of the oath, because some parts of its provisions may seem less important. The same general objects remain, and the oath remains, and if it needs modification, this is not the tribunal for that purpose. We think, therefore, the grand-jurors cannot testify to the facts stated. It is said, however, that others who were present, and have not taken this oath, the witnesses called there, may testify, although the grand-jurors may not. Such a practice would nullify the rule. If it be the object of the law to keep secret the proceedings before the grand-jury, it is necesssry that the law should impose silence upon those whom it has compelled to be before them. If it intends they shall be public, then the doors of the grand-jury room, as well as of the court471 room, should be open to all. If others called there by the law, may testify to what took place within those walls, it would be idle to close the mouths of the grand-jury: they might suffer from the misunderstanding or the misapprehension of witnesses; and hard indeed would be their case, if they could not contradict them, as has been decided by two of the Judges of this court, in Hall’s case, Middlesex, February term, 1844. And at a very early period, it was decided, that the clerk of a grand-jury could not be compelled to testify what took place before that body. 12 Vin. Abr. 38. tit. Evidence. B. And the rule, as laid down in the best authorities, is, that any person who may be present on the occasion, is bound not to disclose what may transpire. 1 Chitt. Cr. Law, 317. Rosc. Cr. Ev. 148. In conformity with this, the courts of Maine held, that the state’s attorney, when present with the grand-jury, could not be called upon for that purpose. McClellan v. Richardson, 1 Shepl. 82. And we can have no hesitation in saying, that the principle which would prevent disclosure by a grand-juror, must extend to all persons required by law to be present; for such persons are all equally interested in the administration of the penal law. Greenl. Ev. 288. They are not permitted to disclose who agreed to find the bill of indictment, or who did not agree; nor to detail the evidence on which the accusation was founded. Sykes v. Dunbar, Selw. N. P. 815. [1059.] Huidekoper v. Cotton, 3 Watts, 56. We are of opinion, therefore, that the testimony offered to prove the facts alleged in the motion, was not admissible. There are also objections arising from the nature of the evidence itself, as well as the situation of the witnesses. It is said, the grand-jury are to hear only legal testimony, and can hear no other. Would this rule extend to informations by single grand-jurors or state’s attorneys, and to a binding over by a single magistrate? This last, we have high authority for saying, is analogous to an enquiry before a grand-jury: per Bayley, J. in Cox v. Coleridge, 1 B. & Cr. 37. (8 E. C. L. 23.) In these cases, the same nicety is not required as in cases before a petit jury in court. The grand-jury, if the case is difficult, may ask the advice of the court; (1 Chitt. Cr. L. 313.) yet a request by the accused, that the court will instruct the jury as to the evidence they shall hear, will not, as a matter of course, be complied with. The request was made — 472 — in Burr’s trial, and seems finally to have been in vain. Vol. 172, 174, 177. And in reference to the case of the murderers of White, where a motion of this kind was made, Parker, Ch. J. said: "According to my recollection, this is the first attempt of the kind in this commonwealth. It is to be presumed, that only proper evidence will be laid before the grand-jury. If any thing improper shall be given in evidence, before the grand-jury, the error may be corrected subsequently, in the trial before the petit-jury;” and he refused the motion. 9 Pick. 495. If bills of indictment are to be quashed, because the grand-jury have admitted, or permitted some evidence to be given not strictly legal, and this could be enquired of, few cases of importance would occur in which these questions would not arise preliminary to the trial. For even in trials before the courts, questions of evidence are continually arising, about which counsel differ, and sometimes judges differ. And when we consider that grand-jurors are not generally selected on account of their legal acquirements, we may reasonably suppose, that they might often admit evidence not strictly legal, which, however, would have very little influence on the cause. If the courts are to enquire into their proceedings, and are to quash indictments, whenever such testimony is heard, whether called for or not, and whether material or not, few indictments would come to trial without this preliminary process. In such cases, would it be the duty of the court to quash every indictment where illegal evidence had been given? Or must they enquire whether it was material; and if material, whether there was not evidence sufficient without it? These, and many other questions of this character, would be constantly arising. And had such a course of practice as is now sought to be established, been known to courts of justice, the books would have been full of cases arising under it, and long ere this, a course of precedents would have marked out a path for us to take. On the other hand, there is hardly a case to be found upon the subject. In Burr’s trial, on motion to instruct the jury as to the evidence, the United States’ attorney, in reply, said, the grand-jury may refuse any instructions; and in that case, how can they be controuled by the court? What would avail the recommendation of the court; (for in fact it would be no more;) and if they should find according to their own opinion, and in — 473 — the old way, how could the court know of this variation, and how could they rectify it? Vol. 1. p. 176. There are very few cases to be found in the English books, where any allusion has been made to such a practice; and can it be, that amidst the intense interest excited by the trials of many great and distinguished men, whose lives were at stake, so few questions of this kind should ever have been made, if any such practice was known in the English law? In Dr. Dodd’s case, his counsel did indeed submit to the court, that the indictment had been found on improper evidence, because one Robertson, who was in custody as a principal in the offence, had been illegally carried before, and examined by, the grand-jury, without having been admitted as a witness for the crown. There, Robertson’s name was on the bill as a witness for the crown, so that no question arose as to the source of the testimony. But the court held, that it was a matter in which the accused had no concern. Leach’s Cr. L. 159. Information by single prosecuting officers are filed, whenever, in the discretion of such officers, the public interest requires it,and upon such evidence as such officer is satisfied calls for their action. Indictments by a grand-jury (which are required in cases of an aggravated character) are guarded with more care, and the accused cannot be brought to trial but by the concurrence of twelve of his fellow citizens acting under the general supervision of the court, who, according to the humane notions of modern times, will direct them not to find a bill, unless they would convict upon the same evidence: and they are also sworn to prosecute no one from hatred, malice or envy, and but to present cases truly. Thus shielded, it is presumed, that very few instances will occur, where one who is free from guilt, will be indicted. The probability, at least, is greatly diminished from what it would be, if left to the discretion of a single individual; and if a mistake should occur, the evil consequences would not extend beyond a trial before an impartial jury, where such errors might be corrected. How it might be, if the charge against the grand-jury was, that some of their number had been corrupted by bribes, or intimidated by threats, we need not decide. The court might perhaps do as was done in the case cited from 4 Greenleaf, where the foreman, by mistake, endorsed “a true bill,” instead — 474 — of “not a true bill.” In cases of such character, we are not about to decide, that the court, in the exercise of a sound discretion, might not say, that a trial should not proceed. This is not a case of that character; nor has any case been presented to us, which will warrant us in setting aside this indictment. The superior court are, therefore, advised not to quash it. In this opinion the other Judges concurred. Motion overruled.