Atwell v. United States

• Decision Date: 22 May 1908
• Docket Number: 636.
• Citation: 162 F. 97
• Parties: ATWELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

162 F. 97

ATWELL v. UNITED STATES.

No. 636.

United States Court of Appeals, Fourth Circuit.

May 22, 1908

William P. Bynum, Jr., and Charles A. Moore (Moore & Rollins Burwell & Cansler, Thomas Settle, and J. E. Alexander, on the brief), for plaintiff in error.

A. E Holton, U.S. Atty. (A. L. Coble, Asst. U.S. Atty., on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and MORRIS and DAYTON, District judges.

DAYTON District Judge.

At the April term, 1905, at Statesville, in the Western district of North Carolina, a grand jury was regularly impaneled and sworn, and by it an indictment was presented against the Old Nick Williams Company, Incorporated, engaged in the business of rectifier of distilled spirits, N. G. Williams, and D. E. Kennedy, charging the violation of certain provisions of the revenue laws of the United States. This indictment was indorsed on its face as having been found upon the testimony of R. B. Sams and W. R. Stackleather. The plaintiff in error, Atwell, was a member of this grand jury, and to him was administered the usual oath, obligating him, among other things:

'The United States' counsel, your fellows', and your own you shall keep secret.'

This indictment was transferred, at this same April term, from Statesville to Charlotte, there to be tried at the June term following, and this grand jury was discharged, and this term at Statesville adjourned. Capias issued, and the personal defendants were arrested and gave bail for their appearance. When the case came on for trial at the June term the attorneys for the defendants, having determined to file a plea in abatement to said indictment on the ground that there was no evidence before the grand jury upon which to base the same, caused a subpoena to be issued against Atwell and other grand jurors to appear as witnesses on behalf of the defendants. In obedience to this subpoena Atwell appeared in Charlotte about two months after his discharge as a grand juror, and in the office of counsel for defendants disclosed to such counsel in substance the statements made before the grand jury by the witnesses Sams and Stackleather. This disclosure was made after counsel there present had assured him that it was his duty, in the interest of justice, so to do. Counsel for the defendants thereupon prepared an affidavit, setting forth the statement of such evidence made by Atwell to them, and asked him to swear thereto; but, a doubt arising in his mind as to the propriety on his part of such action, he sought the United States district attorney and asked him as to his right and duty in the premises. The district attorney advised him that he was uncertain as to the law governing the case and as to whether or not he would be guilty of illegal or improper conduct in making such affidavit. Thereupon Atwell refused positively to make the affidavit.

These facts coming to the attention of the court, on June 19, 1905, a rule was awarded against Atwell, among others, requiring him to appear on day stated and show cause why he should not be attached for contempt. Atwell appeared, answered, denying that the court had jurisdiction, or that his action in the premises constituted either contempt or misconduct, and denied that his disclosure was that of 'the United States' counsel, his fellows', or his own, ' or that it was made for any other reason than because 'he believed that he had a right to do so, and that the ends of justice required that he should make such statement,' as he was aware that the defendants had been arrested and admitted to bail, that the case was then to be tried, and that the witnesses Sams and Stackleather were at the time present to testify.

Upon this answer and the facts as above substantially set forth the court below found Atwell guilty of contempt, made the rule absolute and entered judgment that he should pay to the United States a fine of $50 and the costs of the proceeding. To this judgment Atwell has sued out this writ of error.

It seems to us that a determination of the unusual, if not new and novel, questions involved in this proceeding, may be aided by a careful analysis of the oath administered to this grand juror. This oath required him (a) diligently to inquire and true presentment make of all such matters and things as were given him in charge; (b) to present no one for envy, hatred, or malice; (c) to leave no one unpresented for fear, favor, or affection, reward, or hope of reward; (d) the United States' counsel, his fellows', and his own to keep secret. It may well be said that the first three obligations of this oath relate to the positive duty required of the grand juror, while the latter relates to and defines the rule of conduct to be followed by him in the discharge of these positive duties. The first three are demanded by direct mandate of the law; the latter only by its policy, and solely in order that the first three may be the more thoroughly and effectively performed. The first three obligations are absolutely required by the law, to be laid by oath upon the conscience of the juror; the latter may be omitted, as in some courts is done, and supplied by instructions given by the court.

It seems clear to us that no indictment in any court could, having been once found, be quashed on the sole ground that the grand jurors, or any of them, had disclosed the government's counsel or the proceedings had in the grand jury room. On the contrary, an extreme case, at least, can be conceived, where a deliberate conspiracy on the part of a sufficient number of jurors to indict, not because of good cause shown, but to fulfill the dictates of malice and ill will, carried into effect by the presentation of a true bill, would be sufficient to quash. Such a case, it is true, in practical experience, could hardly occur; but if it should occur, and the evidence of it was positive and indisputable, it seems to us the duty of the court in the premises would be clear. It is clear, too, that the jurors cannot violate the first three obligations without great wrong being done to justice and society. If they do, to a degree, law is impotent and society is threatened with anarchy. This degree is increased just in proportion as the violation of these three obligations becomes persistent and general. On the other hand, it is readily to be perceived that grand jurors may fully comply with the first three obligations and violate the fourth in very many cases, without practical injury to society. Therefore we incline to draw a distinction between the fourth obligation of this oath, dictated by the policy of the law, and the first three, expressly required by the mandate of the law itself.

With this distinction in view, it becomes important to ascertain the reason for this policy of the law-- when the reason for it begins, and when it ends. The reason of the law is the life of the law, and this in a much stronger sense is true as to its policy. When once the reason for a policy to be pursued no longer exists, certainly the requirement to pursue that policy ends. It would not be required of grand jurors we think, by any possible sound course of reasoning, after indictment found, trial and conviction had, judgment rendered, and penalty suffered, to refrain from ever discussing or mentioning to any one the testimony adduced on the trial, solely because it had been first adduced before them in the grand jury room. To what extent, then, does the policy of the law require this secrecy to be maintained? In general terms it may be answered: To the full extent necessary to fulfill the ends of justice, and no further. Very certain it is that it should be maintained during the sittings and deliberations of the grand jury; for its sole province is to make a preliminary and ex parte investigation, to ascertain if probable cause for presentment be found. This could easily be impeded by persons fearing indictment, causing themselves or...