In re Archer

Montgomery, J. The petitioner has sued out a writ of habeas corpus and certiorari to review the action of the circuit court for the county of Wayne in committing him to the custody of the sheriff for a contempt of court in refusing to produce his books and papers before the grand jury now in session in said court. Briefly stated, the proceedings in which the contempt was adjudged were as follows: The grand jury made a report that the witness was required to appear before them under a subpoena duces tecum, and was called upon to produce his books, checks, receipts, bills, invoices, etc., showing his transactions with the city of Detroit and the department of public works of said city, whether in his own name or in the name of himself and others, between the 1st day of January, 1901, and the 1st day of July, 1903; that he appeared before such jury, but refused to produce the books, not, however, claiming ány privilege on the ground that anything contained in them would tend to incriminate him, but placing his refusal upon the ground that he was not compelled to produce them. Acting upon this report of the jury, the court made an order to show cause why he should not be punished for contempt. This writ was returned, and, before later proceedings, notice was served upon him to appear before the court, and produce the books and papers to be used before the grand jury. This he failed to do, and on the 4th of September he was adjudged guilty of contempt in failing to obey the subpoena, and in failing to obey the order of the court; he having appeared before the court on the 4th, and having refused to produce his books before the grand jury. It is urged in this court that the proceedings are irregular and invalid, for the reason that the report of the grand jury divulged the nature of the proceedings before them, and that public policy does not admit of the grand jury stating such facts publicly, and spreading them upon the court records. A discussion of this question might perhaps be avoided, inasmuch as there was a direct refusal to obey the court order of like character; but as the ques [410] tion is of some importance, and as the ruling of this court in the two cases of People v. Lauder, 82 Mich. 109 (46 N. W. 956), and People v. Thompson, 122 Mich. 411 (81 N. W. 344), appears to have been misapprehended, we take the occasion to say that we do not think the rule of public policy prohibiting a disclosure by a grand juror of facts coming to his knowledge while a member of the grand jury is to be so construed as to block the wheels of justice, and bar the grand jury from compelling, through the instrumentality of the court, a recalcitrant witness from obeying the mandates of the court. The grand jury is an arm of the court, but it is without power to enforce its own process by its own mandate. How, then, shall a witness who refuses to answer a question before a grand jury be dealt with? It is very clear that it must be made known to the court that the witness has refused to comply with the court’s mandate before the court can act. There are only two ways that this might be done, and that is either by a report of the grand jury to the court, or by an affidavit of some one of the grand jurors or the prosecuting officer. Section 11887, 3 Comp. Laws, relates to the testimony of grand jurors upon trial, and was not intended to prevent such information being conveyed to the court itself as that embodied in the present report. A very well reasoned and instructive case upon this subject is Heard v. Pierce, 8 Cush. 338 (54 Am. Dec. 757), in which cases are cited which fully sustain the right of the grand jury to take the steps taken in this case; and there is nothing in the decisions of the Lauder or Thompson cases which, in our judgment, militates against these holdings. Acting upon this information, the respondent was required to appear and show cause, and, in addition to this, was, by express order of the court, required to produce the books before the j ury, and refused to do so. He complains of the practice, and says he should have had the opportunity of having interrogatories furnished and given time to answer. He bases this contention upon section 10909 of the Compiled Laws, which is a section of the chapter [411] relating to attachments to enforce civil remedies. The present is a criminal contempt, and comes within the provisions of section 1098, 1 Comp. Laws. The practice was not irregular in requiring immediate obedience to the order of the court. It is next. urged with considerable force that as the report of the grand jury shows that the jury are not attempting to indict or proceed against Archer himself, and there is no claim that the books and papers required to be produced are evidence against him, the evidence sought is immaterial and incompetent, as it is said the books of account may not be used in evidence against any other person. It is to be noted that.the books are not produced in answer to the subpoena, and the question then raised as to particular items, nor does the case present any question as to whether the books of account are sought to be used against any other than John Archer, who might be entitled to the protection of the court; but we are asked to say, as matter of law, that under no circumstances could these books of account, or any entries in them, be any evidence of competent facts against any other person than John Archer. Apart from the fact that the proper practice has not been pursued by petitioner, we are not prepared to say, as matter of law, that there may not be entries in the books which might be proper evidence as against parties other than petitioner. This could only he shown by an inspection of the hooks. It is due to the petitioner that it should be stated that his counsel offered to produce the books, and permit an inspection by the trial judge, on condition that portions of books immaterial to the issue before the grand jury should be sealed up, and only such parts submitted as had a bearing upon the questions under consideration. The proper practice for the petitioner to pursue is, to produce his books before the grand jury, and, upon being requested to exhibit any one of the books or vouchers, raise the question of materiality, and then have it determined by the court, if necessary. [412] The application for discharge on habeas corpus will be denied, and the petitioner remanded to the custody of the sheriff. Hooker, C. J., Carpenter and Grant, JJ., concurred. Moore, J., did not sit.