Petition of Davis

Decision Date07 February 1972
Docket NumberNo. 46571,46571
PartiesPetition of Russell C. DAVIS to Strike or Expunge Part of a Grand Jury Report at July 1970 Term.
CourtMississippi Supreme Court

Watkins & Eager, Jackson, for petitioner.

A. F. Summer, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice:

This is an appeal by Russell Davis, Mayor of Jackson, from an adverse decision by the Circuit Court of Hinds County wherein the court refused to expunge portions of a grand jury report.

The grand jury report sprang from an investigation of the events which transpired at Jackson State College on May 13, 14 and 15, 1970. During this period the campus was touched with riots, burning of property, occupation by the Mississippi National Guard, Mississippi State Highway Patrol and the City of Jackson police, and the eventual killing of two young students and the wounding of others.

At the July 1970 term of the Circuit Court of the First Judicial District of Hinds County a grand jury was convened, made a lengthy investigation and returned a report dealing with the unfortunate occurrences at Jackson State. The report, while not calling for any indictments, made many derogatory statements and inferences concerning the activity or inactivity of Mayor Russell Davis.

Appellant, Russell Davis, sought to expunge that part of the report which reflected upon his conduct. The petition to expunge was presented to the circuit court on August 12, 1970. At the conclusion of a hearing the court took the matter under advisement for a final judgment to be entered in vacation. Six months having passed without an order or final judgment being entered, the appellant perfected an appeal to this Court in accord with Mississippi Code 1942 Annotated section 1650.5 (1956). Thereafter, the appeal having been perfected on February 15, 1971, the trial court rendered its opinion and entered its order on February 17, 1971. Whereupon the first appeal was dismissed and this appeal perfected.

The circuit judge's opinion in regard to the propriety of the report stated:

Petitioner's complaint is that the Grand Jury was without authority to comment upon his actions in his official capacity as Mayor of the City of Jackson. Since time immemorial in each and every Grand Jury report there is contained therein remarks or statements by the Grand Jury relative to the activities or conduct of office by the public officials within the respective county. In fact, it is the duty of a Grand Jury to investigate the conduct of these public officials and in its report make the public aware of same.

Generally speaking, each and every report of the various Grand Juries has commended the actions of various city, county and state officials. Certainly no complaints by these officials have ever been made that the Grand Jury exceeded its authority, and in the opinion of the undersigned, it is imperative that a Grand Jury have the authority to investigate and report on the conduct of its public officials, whether it be laudatory or derogatory, otherwise the community would not be aware of their officials' activities.

The appellant argues that although the grand jury has broad powers to indict public officials for wrongful neglect of duty under Section 175, Mississippi Constitution (1890), it does not have the power to file a report charging no crime, but reflecting on and criticizing the conduct of specified officials and individuals. Section 175 reads as follows:

All public officers, for wilful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office, or otherwise punished as may be prescribed by law.

The Mississippi Legislature has enacted provisions for the filing of grand jury reports in only four additional instances: (1) with respect to the status of forest protection under Mississippi Code 1942 Annotated section 1782 (1956), (2) with respect to inspection of the county jails under Section 1787, (3) with respect to inspection of the accounts and books of county officials under Section 1788, and (4) with respect to inspection of the tax collector's books under Section 1789. The report before this Court can be classified under none of the above sections.

The initial issue presented is whether the report filed by the grand jury can be classified as either an indictment or a presentment. While some jurisdictions refer to presentment and report synonymously as connoting a written transmittal filed by the grand jury with the court, there is a technical difference between a presentment and an indictment.

An indictment is a written accusation prepared by the public prosecutor and presented before the grand jury who examines the evidence in support of it to determine if sufficient to secure the conviction of the accused. In finding an indictment the grand jury is similar to a trial jury except that it only hears one side of the case. Crumley v. State, 180 Tenn. 303, 174 S.W.2d 572 (1943); Hunt, Legality of a Grand Jury Report, 52 Mich.L.Rev. 711 (1954).

A presentment in a strict sense is just as an indictment a specific charge of crime designating the person or persons accused, but taken in the first instance by a grand jury. A grand jury hears the witnesses and evidence and determines from its own knowledge that a crime has been committed. A presentment may be regarded as simply an instruction for an indictment. In Re Report of Ormsby County Grand Jury, 74 Nev. 80, 322 P.2d 1099 (1958); Hunt, Legality of a Grand Jury Report, supra; ...

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10 cases
  • Ealy v. Littlejohn
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 8 Marzo 1978
    ...might have been presented.45 People v. McCabe, 1933, 148 Misc. 330, 333, 266 N.Y.S. 363, 367, quoted with approval in In re Davis, 257 So.2d 884 (Miss.1972) and in United States v. Briggs, 5 Cir., 1975, 514 F.2d 794, 803.46 We have wondered what could have prompted Judge Brown to make the g......
  • Simington v. Shimp
    • United States
    • Ohio Court of Appeals
    • 15 Diciembre 1978
    ...the law for the regulation of county jails has been observed or violated, stating the particulars of such violation."17 In re Davis (Miss.1972), 257 So.2d 884, 888; see In re Report of Ormsby County Grand Jury (1958), 74 Nev. 80, 332 P.2d 1099.18 Ex parte Burns (1954), 261 Ala. 217, 73 So.2......
  • Esparaza v. State, 89-KA-0075
    • United States
    • Mississippi Supreme Court
    • 19 Febrero 1992
    ...of it.... In finding an indictment the grand jury is similar to a trial except that it only hears one side of the case." In re Davis, 257 So.2d 884, 886 (Miss.1972). A preliminary hearing, on the other hand, is adversarial in nature. In Avery v. State, 555 So.2d 1039 (Miss.1990), we examine......
  • In re Fortieth Statewide Investigating Grand Jury
    • United States
    • Pennsylvania Supreme Court
    • 27 Julio 2018
    ...jury's reporting function and the constitutional rights of the individuals who are impugned in the report. See, e.g. , Petition of Davis, 257 So.2d 884, 887 (Miss. 1972) (depicting a critical grand jury report as subjecting an individual to "a quasi official accusation of misconduct resulti......
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