In re Report of Grand Jury of Baltimore City

• Decision Date: 23 March 1927
• Docket Number: No. 18.,18.
• Citation: 137 A. 370
• Parties: In re REPORT OF GRAND JURY OF BALTIMORE CITY. Appeal of PERRING et al.
• Court: Maryland Court of Appeals

137 A. 370

In re REPORT OF GRAND JURY OF BALTIMORE CITY.

Appeal of PERRING et al.

No. 18.

Court of Appeals of Maryland.

March 23, 1927.

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne, Judge.

"To be officially reported."

In the matter of the report of grand jury of Baltimore city. From an order denying the petition of Henry G. Perring and others to expunge a report of the special committee from the record, petitioners appeal. Reversed and remanded.

Argued before BOND, C. J., and URNER, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Philip B. Perlman, of Baltimore (Roland R. Marchant, of Baltimore, on the brief), for appellants.

DIGGES, J. The grand jury of Baltimore city for the May term, 1926, completed its work and made its final report to the criminal court on September 10, 1926. Delivered to the court at that time by the foreman of the grand jury was a report of a special committee of the grand jury composed of six members, and designated as the report of the special committee on the Clifton Park high school. This report was signed by its chairman, who was also assistant foreman of the grand jury, and five other members of the grand jury. It contains a criticism of the methods of construction and the material used in the Clifton Park high school, located in Baltimore city, especially in respect to the alleged inefficiency of H. G. Perring, supervising engineer of the public improvement commission and head of the commission's bureau of construction, and the allowance of substitution of different material than that called for in the specifications, resulting in a lower cost of construction for which the city got no credit, but which saving, it is alleged, benefited the contractor; and, also, inferentially criticizing the public improvement commission for intrusting the construction of the public school buildings to the supervision of the supervising engineer, and a lack of proper supervision by the commission. It is urged that on all future buildings of this sort the supervision be intrusted to the architect, in co-operation with the building inspector's office. The report further states that the special committee feels that the present arrangement results in duplication of effort and lack of efficiency, which is not only extravagant but dangerous. The General Assembly of Maryland, by chapters 373 and 374 of the Acts of 1920, authorized the issuance by the mayor and city council of Baltimore of its stock in the amount of $51,000,000, to be used in making city improvements as specified in the acts; chapter 373 authorizing what is known as the general improvement loan, and chapter 374 what is known as the water loan. These acts of Assembly require the mayor and city council of Baltimore to provide by ordinance for a commission with full power to administer the funds so authorized, to provide for their expenditure, to employ such officers, agents, and servants as may be necessary in connection therewith, and to supervise the entire disposition of the fund so far as the exercise of such power is not inconsistent with the charter of the mayor and city council of Baltimore; and said act further provided that the mayor and city council should by ordinance provide for such commission before the question of the issue of stock should be submitted to the voters of the city. Pursuant to such acts of the General Assembly the mayor and city council, by Ordinance No. 376, approved July 2, 1920, created the public improvement commission, consisting of five citizens and residents of the city, to be appointed by the mayor with the consent of the city council, together with the mayor and chief engineer of Baltimore city, members ex officio. Subsequently the mayor and city council by ordinance submitted the question as to the issuance of the stock thus authorized by the General Assembly to the legal voters of Baltimore city, which was duly approved at the election in November, 1920, The then mayor of Baltimore city appointed five citizens as members of the public improvement commission, who, together with the present mayor and chief engineer, now constituting said commission, and Henry G. Perring, supervising engineer of the commission, are the appellants. Subsequent to the filing of the report of the special committee of the grand jury, the appellants filed petitions in the criminal court of Baltimore city, alleging, among other things, that the report of the special committee on the Clifton Park high school is improper and illegal, because:

"(a) The grand jury has no authority or power to return such presentments; (b) the grand jury had no power to authorize a special committee to return such presentments; (c) the charges (or presentments) contained in said report are not such upon which any indictment can be drawn; (d) the report violates your petitioners' rights under the Bill of Rights of the Constitution of the United States and the Declaration of Rights of the Constitution of Maryland, in that it undertakes to make charges (or presentments) and to condemn your petitioners without the privilege of a trial by jury, or any other trial, without being heard in their own defense, and without an opportunity to produce witnesses or other evidence in their behalf; (e) the report (or presentment), in the manner made and published, is subversive of the principles of the government, and is opposed to every recognized rule of fairness and justice; and (f) because of other reasons to be assigned at the hearing. Wherefore your petitioners pray your honor to pass an order striking from the records of this court said report (or presentment) of the special committee on the Clifton Park high school of the grand jury for the May term, 1926."

Later, various motions were made and orders passed, culminating in an order of the court on November 19, 1926, by which certain portions of the report of the special committee of the grand jury were ordered deleted from the record, but denying the petition of the appellants to expunge the whole report. From that order this appeal is taken.

The single question for decision is, Should the report of the special committee of the grand jury be stricken out? And this involves the question of the grand jury's right and power to make such a report. It is of no concern whether the matter contained in the report be true or false, as our conclusion must be based not on the truth or falsity of the report, but upon the right and power of the grand jury to make such a report. The institution known as the grand inquest, or the grand jury, is of ancient origin. An accusing body, not, however, a grand jury, so called, has been known to the law from the time of Henry III. As first constituted, the present functions and duties of the grand and petit juries were exercised by the same body. Brackton's account, as stated by Reeves in his history of the English law, is that a general summons preceded the coming of the justices into a county, which commanded all persons to attend at a certain time and place. At this assembly of the people the justices evidenced their authority by reading their commissions and explaining the cause of their coming and the commands of the King, enjoining them particularly of the duty incumbent upon them, as subjects of the King, not to harbor any outlaws, murderers, robbers, or burglars. The process of procuring an accusing body was then begun by calling the bailiff of each hundred and requiring him under oath to choose out of his hundred four knights, who were to come before the justices and make oath that they would elect twelve other knights, or if knights could not be had, twelve "free and lawful men" who had no interest in the matter to be investigated, nor were suspected of any offense, and were such as were well qualified to dispatch the King's business. The twelve thus selected, after being sworn, were informed that they were to answer in their verdict separately upon every article assigned, and were to return their answer at a certain day. They were also charged that if they knew of any suspected persons in their hundred they should instantly apprehend them, if found, and if not, their names were to be privately given to the justices, that they might not have notice to escape. Whereupon the sheriff was commanded to take them and bring them before the justices. Each hundred had its own accusing body; no witnesses were examined, the presentments being made upon the knowledge of the jurors in respect of any violations of law as were the subjects of their inquiry. These twelve were sworn to speak the truth, and coming from the vicinage where the facts arose, no one was in a better position to know of infractions of the law than themselves. Later, in the forty-second year of Edward III, at a commission of oyer and terminer, beside the return on an inquest for every hundred by the bailiff, the sheriff of the county was required likewise to return a panel of knights, which the old records designate "Le Graunde Inquest." 3 Reeves, 133; Forsythe, Trial by Jury, 218; Thompson on Juries, 560-562. After the practice began of returning the grand inquest to inquire for the whole body of the county, the business of the hundred-inquest declined, until the whole burden of presenting and finding indictments devolved upon the grand inquest, and the hundredors continued to be summoned merely for trying issues or exercising the present functions of the petit jury. From that early time to the present, the grand jury has been continued and preserved as an institution necessary for the preservation of the peace, good order, and dignity of the state in bringing to trial those guilty of violations of law, and in protecting people from being put on trial upon frivolous, unfounded, or false accusations.

At common law, just as no man may be convicted and punished of a felony without the unanimous verdict of twelve of his peers, constituting the petit jury, neither can he be put to his trial for...