Poston v. Washington, Alexandria, & Mt. Vernon Railroad

Mr. Chief Justice Shepard delivered the opinion of the Court: 1. Evidently the demurrer was sustained on the ground that the publication was privileged as the report of a judicial pro — 367 — ceeding, and it is to that point that the argument has been chiefly directed. If not privileged, it is clear that the publication is libelous and actionable. Whether it substantially charges plaintiff with the crime of false swearing, as claimed, we need not pause to determine; for it is plain that it tends to bring him into ridicule, contempt, and disgrace, and therefore furnishes sufficient foundation for the action. Bailey v. Holland, 7 App. D. C. 184-189; Washington Gaslight Co. v. Lansden, 9 App. D. C. 508-530; Washington Times Co. v. Downey, 26 App. D. C. 258-263, 6 A. & E. Ann. Cas. 165. 2. The allegation that the grand jury was irregularly summoned, and composed of unqualified persons, is not essential to the maintenance of the action. In our opinion this is a question that the plaintiff cannot raise in this collateral proceeding. Moreover, called at his suggestion, he had the opportunity and it was his duty to make objections to the persons summoned for service on the special grand jury, before it was impaneled and entered into the investigation. Instead of doing this, he acquiesced in the qualifications of the jurors, and presented his complaint to them. 3. Assuming that the investigation of the conduct of the railway company by a grand jury charged with that duty by a court of competent jurisdiction is a judicial proceeding, it is necessary to consider whether the report presented and published was within its jurisdiction and duty. Grant that the grand jury had the power to present or indict the railway company if it had found the charges to be true, or even to present or indict the plaintiff for false swearing upon finding that his testimony in support of the complaint was false, the question remains: Had it the power to make the report that it did, not only that there was no foundation for the indictment of the defendant, but charging malice and improper conduct against the plaintiff? If it had not, the report is not a judicial proceeding, and entitled to privilege as such. The argument on behalf of appellee is that this report is a presentment within the ordinary power of a grand jury. We — 368 — cannot concur in this view. The practice under the old English system in which the institution of the grand jury had its ■origin is thus stated by Mr. Justice Brown in Hale v. Henkel, 201 U. S. 43-59, 50 L. ed. 652-659, 26 Sup. Ct. Rep. 370: “Criminal prosecutions were instituted at the suit of private prosecutors, to which the King lent his name in the interest of the public peace and good order of society. In such cases the usual practice was to prepare the proposed indictment and lay it before the grand jury for their consideration. * * * ‘A presentment, - properly speaking, is a notice taken by a grand jury of any offense, from their own knowledge or observation, without any bill of indictment laid before them at the suit of the King, as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer it.’ ” This last paragraph is quoted from 4 Bl. Oom. 301. See also Wharton, Crim. Proc. 62; Chitty, Crim. Law, 162. “Presentment, in its limited sense, is a statement by the grand jury of an offense, from their own knowledge, without any bill of indictment laid before them, setting forth the name of the party, place of abode, and the offense committed, informally, upon which the officer of the court afterwards frames an indictment.” Collins v. State, 13 Fla. 651, 653; 201 U. S. p. 62. When an indictment had been prepared and submitted to the grand jury, it was indorsed, “a true bill,” or “not a true bill,” and signed by the foreman according to the actual finding of the jury, or the necessary number thereof. In the ordinary American practice, where a prosecuting attorney is an officer of the State, and as such gives advice and aid to the grand jury when called upon, the findings are reported to him for preparation of the necessary indictment. When- this is adopted' and officially signed, it is presented to the court and noted on the minutes thereof. No other presentment is necessary and seems rarely to be made in modern practice. Where, however, formal presentments, as above described, may have been made upon occasion, no prosecution could be — 369 — bad upon them, but only on the indictment or information founded thereon. The presentment and the resulting indictment were considered as one act. United States v. Hill, 1 Brock. 156, Fed. Cas. No. 15,364. The latter took the place of the former for all purposes. Laird v. State, 61 Md. 309-311. The practice in the State of Virginia seems to have been exceptional in this respect. As declared by her court of appeals: “The presentment moreover, seems in Virginia, from a very distant period, to have been made the foundation for a summons to show cause why an information for the offense presented should not be filed against the accused. No authority has been found in the English books that warrants such an use of the presentment. From what has been stated before as to the nature of a presentment in the English practice, no such use, it is supposed, could be made of it.” Com. v. Christian, 7 Gratt. 631-636. See also Com. v. Towles, 5 Leigh, 743-750. The presentment referred to by the Virginia court, however, was evidently the regular one presenting the name of the party and his commission of a specific offense, with the time and place, and the essential particulars thereof, on which an indictment or information could be framed. The “presentment” so called, that is under consideration, is nothing of this kind. The grand jury having found no justification for the indictment or presentment of the railway company, its regular and proper course would have been so to report to the court that, its duties being ended, it might be discharged. It might, possibly, have indicted the complainant for false swearing, or made a presentment to that effect as the foundation of an information, if one would lie for such an offense. Instead of pursuing the latter course, a long report was made, reciting as facts matters calculated to bring the complainant'into public - contempt and disgrace. It was not, and was not intended to be, a presentment on which he could be cited to show cause why an information should not be presented against him. Had it been, he could have had an opportunity — 370 — to test the truth of the charges upon trial. Turning now to the sections of the Code of Virginia that have been brought to our attention, we find no provision authorizing a report of this description. Section 1729a, Pollard’s Code, provides that when complaint has been made to the circuit, and other courts named, by 'five or more citizens, setting forth the existence of a public nuisance, the court, or the judge thereof in vacation, shall summon a special grand jury to specially investigate the said complaint. That course was pursued in this case. The section then provides that the grand jury, if satisfied that the nuisance exists, shall proceed to make presentment against such person or persons as it shall find to have created or caused such nuisance. Upon any such presentment, the court shall • order a copy served upon the person presented, or whose property is presented ; and to any such proceeding, if it be in rem, any person interested, or for or in behalf of the owner of such premises, may make defense. Other provisions of the Code (3978-3980, 3982, 3983, and 3984) regulate the calling of grand juries, their duties, and the.manner of making and rendering indictments and presentments. They shed no light upon this proceeding. Other sections refer to the examination of certain acts of administration by public officers, the inspection of tobacco, violations of the revenue laws, the protection of fish, etc., and the return of indictments in such instances. Section 3989 provides that all prosecutions for offenses against the commonwealth, unless otherwise provided, shall be by presentment, indictment, or information. As we have seen, the report of the grand jury charged with the investigation of the complaint in this case was neither an indictment nor a presentment of the commission of an offense. A practice by grand juries of making reports upon the administration of public affairs, the condition of public works, and other matters of public interest, seems to have grown up in many States, authorized probably by statute. No staüite of the State of Virginia has been cited as authorizing such practice. While such reports may, in some instances, tend to the advancement of the public welfare, yet, being extrajudicial, — 371 — their public character affords no protection to the grand jurors themselves, against action if they contain libelous matters. Rector v. Smith, 11 Iowa, 302-307. That-was an action for libel against a member of a grand jury for charges contained in a report made to the court, of extravagance and improper keeping of accounts of the expenditure of certain public funds by the county judge. There was no indictment, nor was the report in the nature of a presentment of the commission of a misdemeanor as the foundation of an information. A statute making it the special duty of the grand jury to inquire into the-conduct of public officers was relied on as justifying the report. The court held that the grand jury had the power to indict for. offenses found to have been committed, and nothing more. It was said: “A report by a grand jury presents nothing upon which the court can act, unless it is in reference to the condition of the prison. The court can take no jurisdiction over the complaint charged by such report. Nor can a person thus presented have an opportunity to show himself innocent of the matters complained of. With this view of the question, we conclude that the report presented hy defendant as a grand juror was not a privileged communication, and that he cannot plead this in bar of plaintiff’s right to recover.” That decision, in our opinion, is sound in principle. Our conclusion is that the report of the grand jury in this case was beyond its special powers and jurisdiction in the premises, and that its publication is not a matter of privilege. This renders discussion of the other questions in the case unnecessary. Tor the reasons given, the judgment will be reversed, with costs, and the case remanded, with direction to overrule the demurrers, and to take further proceedings not inconsistent with this opinion. Reversed.