Blau v. State

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: PRICE, J.
• Citation: 34 So. 153,82 Miss. 514
• Parties: ELIHU BLAU v. STATE OF MISSISSIPPI
• Decision Date: 27 April 1903

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 [34 So. 154]

[82 Miss. 515] 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 [82 Miss. 516] 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...