Commonwealth v. Berry

• Decision Date: 27 April 1906
• Parties: COMMONWEALTH v. BERRY, Judge.
• Court: Kentucky Court of Appeals

92 S.W. 936

COMMONWEALTH v. BERRY, Judge.

Court of Appeals of Kentucky.

April 27, 1906

"Not to be officially reported."

Mandamus by the commonwealth to compel A. S. Berry, as judge of the Campbell circuit court, to set aside an order directing a stenographer to take the testimony before the grand jury. Writ issued.

W. A Burkamp and J. W. Heuver, for the Commonwealth. Hazelrigg Chenault & Hazelrigg, for defendant.

HOBSON C.J.

On the 19th of April, 1906, the judge of the Campbell circuit court entered the following order: "At the request of the grand jury that a stenographer be appointed to take the testimony, the court now appoints Miss Delia Dressell, and she was sworn by the court to faithfully perform the duties of said stenographer, and to keep secret the proceedings of the said grand jury, and not to divulge the aforesaid proceedings, unless by due process of law." On the next day the commonwealth's attorney moved the court to set aside the order and enter an order excluding the stenographer from the sessions of the grand jury, and, the motion being overruled, moved the court to direct the grand jury to prevent any stenographer from attending its sessions. This motion was overruled. Thereupon, upon notice to the circuit judge, this proceeding was instituted in this court by the commonwealth's attorney in the name of the commonwealth against the judge of the circuit court, praying this court to issue a writ commanding him to set aside the order of April 19, 1906, and directing him to exclude from the grand jury room any person not authorized by law to be in the room.

Section 110 of the Criminal Code of Practice is as follows: "No person except the attorney for the commonwealth and the witness under examination shall be present while the grand jury are examining a charge; and no person whatever, while they are deliberating or voting on a charge." The secrecy of the proceedings of the grand jury has from the earliest times been rigidly enforced, the purpose being to free that body from all espionage or intimidation, and to enable them to ferret out violations of law quietly, step by step. If the proceedings of the grand jury are not kept secret, the jurors themselves might be less free to do their duty, and various obstacles might be placed in their way destroying the independence of the body. The statute providing that no one but the commonwealth's attorney and the witness under examination shall be present is peremptory and the circuit court erred in...