Blau v. State

• Decision Date: 27 April 1903
• Citation: 34 So. 153,82 Miss. 514
• Court: Mississippi Supreme Court
• Parties: ELIHU BLAU v. STATE OF MISSISSIPPI

34 So. 153

82 Miss. 514

ELIHU BLAU v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

April 27, 1903

FROM the circuit court of Lauderdale county. HON. GUION Q. HALL Judge.

Blau appellant, was indicted, tried and convicted, under Code 1892, §§ 1120, 1121, for dealing in futures, and appealed to the supreme court. The facts upon which the case was decided are fully stated in the opinion.

Reversed and remanded.

R. F Cochran and S. A. Witherspoon, for appellant.

If the court has the lawful right to compel a grand jury to return indictments, when they have refused to do so, then the bill of rights and constitution should be annulled and the grand jury system abolished. Clair v. State, 28 L. R. A., 367; 2 Hale, P. C., 161; 1 Chitty on Criminal Law, 312.

The trend of judicial sentiment in this country is illustrated by the language of Justice Field, of the supreme court of the United States, who, in charging the grand jury in the year 1872, said it was "designed as a means of not only bringing to trial persons accused of public offenses upon just ground, but also as a means of protecting the citizens against unfounded accusation, whether it comes from government or be prompted by partisan passion or private enmity." 2 Sawy., 669.

There are not many cases on the question of inflammatory or prejudicial charges to the grand jury, the judges generally recognizing the propriety of defining the duties of the grand jury in calling their attention to crimes generally, and then to particular statutes, but refraining from expressing any opinion as to the guilt or innocence of any particular person. But it is believed that any intimation by the court that a particular person has been guilty of any particular crime, or that evidence can be easily found which will convict them, or that the grand jury should indict them, would vitiate an indictment, if proper objection is taken, except in Louisiana.

A motion was the proper proceeding to raise the question of the validity of the indictment. Code 1892, § 1355.

J. N. Flowers, assistant attorney general, for appellee.

Argued orally by R. F. Cochran and S. A. Witherspoon, for appellant, and by Monroe McClurg, attorney general, for appellee.

OPINION

PRICE, J.

The appellant was indicted by the grand jury of Lauderdale county January, 1902, for violating sections 1120, 1121, of the Code of 1902, against dealing in futures. The defendant filed the following motion to quash the indictment against him:

"And now comes the defendant, in his own proper person, and moves the court to quash the indictment herein, and in support of said motion he assigns the following reasons:

"First. Because the Hon. G. Q. Hall, judge of the tenth judicial district, at the January term of the circuit court, 1902, charged the grand jury at length on the criminal character of the business of this defendant, and the grand jury, after being in session two or three weeks, and after having examined numerous witnesses touching the character and kind of business in which the defendant is engaged, failed, after a full investigation, to indict the defendant, and the said grand jury, after finishing the work before it, made its final report to the court, and asked to be discharged, and thereupon the court refused to receive their report, and had the grand jury seated, and proceeded in a lengthy charge to again specifically charge the grand jury in reference to the criminal character of the business engaged in by this defendant.

"Second. Because the Hon. G. Q. Hall, judge of the tenth judicial district, in said second charge to said grand jury, among other things, said to the grand jury: 'I don't know why it is you have not returned indictments against these parties (meaning this defendant). The law is plain and clear, and you have had, I understand, sufficient evidence before you to find indictments. The business has been outlawed in every state in the Union, so far as I am informed, except perhaps in New York and Louisiana. It is like a poker game, where the owner of the poker table has a "rake off," no matter who wins or loses, and it is demoralizing to the manhood of the community. Previous grand juries indicted some of these parties, and they immediately drew their money out of the banks and tied from the state. The cases have not been tried yet, but I will attend to them in due time. They do not deliver, and make no pretense of delivering, a bale of cotton, and the business is a flagrant violation of the statutes which I have read to you. If you do not indict these parties (meaning this defendant), this town will be overrun with bucket shops before another grand jury meets.'

"Third. Because the said grand jury, after the said judge had delivered the said second charge, and being influenced and induced to indict this defendant by reason thereof, returned the indictment herein, which was not the voluntary act of the grand jury. It is therefore void.

"Fourth. For other reasons to be assigned at the hearing. E. B. Blau, by A. S. Witherspoon and R. F. Cochran, attorneys.

"Filed July 9, 1902. D. W. Cameron, Clerk."

The defendant then and there offered to introduce evidence to prove the facts set out in the motion, but the court stated that it did not care to hear proof, as the facts stated in the motion were substantially true, and were substantially stated in the charge of the court to the grand jury as alleged in the said motion; but the court denied said motion and overruled the same, to which ruling and decision of the court the defendant, by his counsel, then and there excepted.

"And because the matters aforesaid do not fully appear of record the defendant presents this his bill of exceptions, and prays the same may be signed and sealed by the judge of this court, pursuant to the statute, etc., which is accordingly done. G. Q. Hall, Judge.

"Filed July 18, 1902. D. W. Cameron, Clerk."

This motion was overruled in the following words: "This cause coming on to be heard upon motion of defendant to quash the indictments herein, and the court, having considered the same, doth order that said motions be overruled and denied. To which action of the court the defendant then and there excepted," and filed his special bill of exceptions.

Should this motion to quash have been sustained? If this question be answered in the affirmative, a consideration of the numerous other errors assigned will be unnecessary. This presents to some extent a new question in this state. In Allen v. State, 61 Miss. 627, there was a plea in abatement alleging that one or more of the grand jurors were intoxicated when the bill was found. This court held, in an opinion by Justice Chalmers, that the grand jury is not under the guidance and control of the court, like the petit jury is, while considering their verdict, and should not be so judged. In Durr v. The State, 53 Miss. 425 this court sustained the motion to quash the indictment because the attorney assisting in the prosecution by leave of the court went before the grand...