Commonwealth v. Harris

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: PIERCE
• Citation: Commonwealth v. Harris, 231 Mass. 584, 121 N.E. 409 (Mass. 1919)
• Decision Date: 02 January 1919
• Parties: COMMONWEALTH v. HARRIS.

231 Mass. 584

121 N.E. 409

COMMONWEALTH

v.HARRIS.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 2, 1919.

Exceptions from Superior Court, Middlesex County; Christopher T. Callahan, Judge.

Samuel C. Harris was convicted of receiving a stolen automobile, and he excepts. Exceptions sustained.

The plea in abatement filed by defendant was as follows:

Plea in Abatement.

And now comes Samuel C. Harris, the above-entitled defendant, and says that he ought not to be further held to answer to said indictment, and that the same should abate because he says that at the time and place of and on the occasion when the grand inquest for said county was hearing, inquiring into, and examining the matter of the presentation of the indictment now returned into court here against these defendants, one Silas P. Smith, a district police officer of Massachusetts, one Herbert Gordon, a captain of police of the city of Cambridge, and divers other persons whose names are to this defendant unknown, not members by said grand inquest, and not persons lawfully authorized to be and remain with said grand inquest while it was so conducting said inquiry, were present with said grand inquest while it was so hearing, inquiring into, and examining the matter of the presentment of said indictment.

And this he is ready to verify.

By His Attorney:

Harvey H. Pratt.

The government having joined issue on such plea, the following stipulation was filed:

Stipulation.

It is hereby stipulated and agreed between Harvey H. Pratt, attorney for the defendant Samuel C. Harris, and Nathan A. Tufts, Esq., District Attorney, who prosecutes for the commonwealth in this behalf, as follows:

‘That while the above-entitled cause was being heard by the grand jury one or more persons, witnesses in the case, were in the grand jury room present while other witnesses were testifying, but that no witness or other person, not a member of the grand jury, was present while that body was deliberating upon the evidence presented.’

Samuel C. Harris,

By His Attorney, Harvey H. Pratt.

Nathan A. Tufts, District Attorney.

N. A. Tufts, Dist. Atty., of Waltham, and G. S. Harvey, Asst. Dist. Atty., and F. W. Fosdick, Deputy Dist. Atty., both of Boston, for the Commonwealth.

Harvey H. Pratt, of Boston, for defendant.

PIERCE, J.

It was decided in Jones v. Robbins, 8 Gray, 329, that the clause in article 12 of the Bill of Rights of Massachusetts which reads: ‘No subject shall be arrested, imprisoned, * * * exiled, or deprived of his life, liberty or estate, but by the judgment of his peers, or the law of the land,’ made an indictment or presentment of a grand jury essential to the validity of a conviction in cases of prosecution for felonies. In the opinion, delivered by Chief Justice Shaw, the court adopts the conclusion of Chancellor Kent that ‘the words by the law of the land, as used originally in Magna Charta in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men,’ and goes on to declare that:

‘The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.’

The above quotation is a declaration and decision that the twelfth article of the Bill of Rights in part was aimed and intended to prohibit the scandal and disgrace of a trial in public of persons charged with infamous crimes and offences when, in truth, there was no sufficient cause to suspect their guilt. It is also a declaration that it shall no longer be possible for one or more judges to compel or direct the examination of a witness to be held in open court before the grand jury, should the judges seek to overawe the latter or the witness by the presence of other witnesses or bystanders, or should he or they be of opinion the prosecution is too indulgently or too vindictively conducted. See Chitty, Cr. Law (2d Ed.) 312, and cases cited; Earl of Shaftesbury's Trial, 8 How. St. Tr. 759, 771; Forsyth's History of Trial by Jury, 224.

It is manifest an examination of witnesses by the grand jury in the presence of others,...