William J. Burns International Detective Agency, Inc. v. Doyle

— 94 — By the Court, Coleman, J.: This action was instituted to recover an amount alleged to be due and owing the plaintiff from the defendants under a contract claimed to have been entered into for the performance of certain services in the procuring of evidence for submission to the grand jury of White Pine County, of which the defendants were members. The complaint alleges, among other things: “That the grand jury was desirous of procuring the aid and services of plaintiff * * * for the purpose of assisting said grand jury in * * * 'obtaining evidence of certain alleged criminal offenses * * * and requested plaintiff to furnish its aid * * * to said grand jury for the purpose of making investigation of certain alleged criminal matters and offenses alleged to have occurred within said county, and of aiding said grand jury in obtaining proofs or evidence in respect thereof.” — 95 — To the complaint a general demurrer was filed, and, after consideration thereof, the trial court sustained the same. Plaintiff declined to amend, judgment was rendered in favor of the defendants, and plaintiff has appealed. Two points are presented in support of the contention that the complaint does not state a cause of action: First, that the contract pleaded in the complaint is. against public policy, and hence void. We need not consider the other contention. Is the contract pleaded against public policy? Section 7005 of the Revised Laws of 1912 provides that a challenge may be interposed to an individual grand juror where a state of mind exists on his part in reference to the case which will prevent his acting impartially and without prejudice to the substantial rights of a party. By section 7009 it is provided that, if a challenge to an individual grand juror is allowed he cannot be present during, or take part in, the consideration of a charge against an individual. The rights thus secured to one under investigation are substantial in their nature. State v. Bachman, 41 Nev. 197, 168 Pac. 733. If we can accurately divine the purpose of these provisions of our statute, it is to assure persons under investigation the consideration of their case, as far as possible, by those who are in no way biased. Such is the public policy of the state, as definitely established by statute. Counsel for appellant has presented the case very strongly, but we think the sounder view is opposed to his contention. It is urged that bias is a state of mind to be shown and made to appear as any other fact. In this connection it is also urged that, even where a juror is biased, if it appears to the court that notwithstanding such bias the juror can act impartially and fairly, the court will not disqualify him. Rev. Laws, 7005. Basing the contention upon the foregoing assertions, it is insisted that, if an indictment should be returned, based — 96 — upon evidence unearthed by a detective who pursued his investigation pursuant to such a contract as the one pleaded, it must be set aside, if the position of respondents is sound, because of the mean's employed in ferreting out the facts. We think counsel’s premise is an erroneous one. It was long ago settled that our statute fixes the disqualifications of a grand juror (State v. Millain, 3 Nev. 409, 424); it has also been decided that objections to the qualifications of a grand juror can be made only at the time and in the manner contemplated by statute (McComb v. District Court, 36 Nev. 417, 136 Pac. 563); and our statute clearly contemplates that a person held to answer to the grand jury must interpose his challenge to a grand juror at the time it is impaneled. It is true that one indicted by a grand jury, who has not had previous opportunity to do so, may move to set aside the indictment upon the ground for which a challenge might have been interposed. Conceding the correctness of the contention that bias is a state of mind to be shown, and that the court must determine if such bias exists as to disqualify a grand juror, we are still of the opinion that the contention of counsel cannot be sustained. One who is indicted by a grand j ury composed of persons who have financed the building up of a case against him, and who are biased, might not learn of the facts until it is too late to raise the question of bias in any manner or at any time. We think, since it is the public policy of this state, as declared by statute, that one whose conduct is being investigated by a grand jury is entitled to have the investigation made by unbiased grand jurors, the sole question for us to determine is the force and effect of the contract pleaded. In this connection we may well direct attention to the thought expressed. in King v. Randall, 44 Nev. 118, 190 Pac. 979, 13 L. R. A. 730, to the effect that a contract which tends to produce a situation contrary to public policy, whether or not in a particular case it produces that result, is void. — 97 — Would such a contract as that pleaded tend to defeat the general purpose of our statute to afford every person whose conduct is being inquired into an inquisitorial body free from bias and prejudice? As will appear by reference to the quotation from the complaint, it is charged that the plaintiff was employed to investigate “certain alleged criminal offenses. * * *” The allegation negatives the idea that plaintiff was employed to investigate the commission of crimes generally, but that its activities were limited to particular offenses. The inference deducible from this language is that it was especially desirable to fix the liability for certain offenses. That purpose was so earnestly desired that the defendants were willing to obligate themselves for a large outlay. Is it possible for frail human nature to lend its support to the ferreting out a crime without being influenced in reaching a conclusion as to the guilt or innocence of the party? We think not. Would any one be so audacious as to say that a detective who has been active in investigating an alleged crime could be an impartial grand or petit juror? The inquiry suggests the answer. One who furnishes the money to induce the activity of a detective in such an inquiry is but slightly, if any, less liable to be prejudiced. In fact, the detective is working for the reward, and is paid for his services, regardless of results, whereas the one who puts up the money to induce the activity of the detective is in a position to use his influence to get the results he hopes for. His only reward is in finding a victim. Is he likely to be impartial toward the one who is the fruit of his own activity ? A knowledge of human nature answers, “No.” The experiences of the ages answer, “N'o.” The words of St. Luke, “Where your treasure is, there will your heart be also,” state a truism. An agreement on the part of grand jurors to finance an investigation of a particular offense inexorably prejudices them as impartial and unbiased members of the grand jury. Such a contract no't only tends to create prejudice, but, unless the persons so — 98 — agreeing are superhuman, it is safe to say that it in fact has that effect. In the case of Wm. J. Burns I. D. Agency v. Holt, 138 Minn. 165, 164 N. W. 590, the point here under consideration was urged, and, though not squarely decided, the intimation of the court is strongly in accord with the view we have taken. Said the court: “We shall not now stop to inquire and determine whether a contract made by a grand juror or grand jury to finance an investigation of crimes through detective agencies is void as against public policy. It is enough to suggest that for grand jurors to personally finance criminal investigations is so at variance with the evident purpose of their work, under the theory of our criminal procedure and the practice of modern jurisprudence, that no contract so to do should be implied from the fact that reports were received and made use of by the grand jury, or from the fact that its foreman requested the same or any other service from outsiders. The foreman has no express or implied authority to incur expense for which the j ury or the individual members will be liable. Moreover, the finding of an indictment calls for the .judgment of fair-minded, unprejudiced men. It is against the general consensus of opinion that ordinary men can act fairly and impartially when their purse has been placed on one side of the scale.” Holding the views expressed, the judgment must be affirmed. It is so ordered. Ducker, J.: I concur.