Commonwealth v. McNary

• Decision Date: 22 June 1923
• Citation: 140 N.E. 255,246 Mass. 46
• Parties: COMMONWEALTH v. McNARY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 46

140 N.E. 255

COMMONWEALTH

v.McNARY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1923.

Exceptions from Superior Criminal Court, Suffolk Countyf Elias B. Bishop, Judge.

William S. McNary was adjudged guilty of contempt of court in mailing a letter addressed to members of a special grand jury, and he brings exceptions. Exceptions overruled.

The claim filed by the Attorney General charged defendant with two other contempts of which he was found not guilty. With respecto to the charge on which be was convicted he requested rulings, which the court refused, that the mailing of the letter did not constitute a criminal contempt, and that there was no evidence warranting a finding of guilt. There was no evidence of the actual effect, if any, as distinguished from the inherent tendency of the letter, upon the minds of the grand jury, or upon the administration of justice. The judge imposed a fine of $250, but stayed execution of the sentence.

Lewis Goldberg and Albert Jurwitz, Asst. Attys, Gen., for the commonwealth.

W. G. Thompson, George E. Mears, and John W. Corcoran, all of Boston, for defendant.

RUGG, C. J.

[1][2] This is a proceeding for contempt of court. It comes before us on exceptions taken by the defendant at the hearing before a judge of the superior court. The proper way to raise an error of law in such case is by writ of error. Hurley v. Commonwealth, 188 Mass. 443, 74 N. E. 677,3 Ann. Cas. 757. There is grave doubt whether exceptions lie in a case for contempt. Walton Lunch Co. v. Kearney, 236 Mass. 310, 128 N. E. 429. We do not pause to discuss or to decide that question, whether the rulings were subject to exceptions need not be considered because in any event the ultimate decision must be against the defendant, and in such case there seems to be no objection to stating the grounds of substantive law which support the result. Browne v. Turner, 176 Mass. 9, 12, 56 N. E. 969;Commonwealth v. McElhaney, 111 Mass. 439, 440;Newton Rubber Works v. De Las Cases, 198 Mass. 156, 84 N. E. 119;Boston v. Treasurer and Receiver General, 237 Mass. 403, 410, 130 N. E. 390;Codman v. Crocker, 203 Mass. 146, 148, 89 N. E. 177,25 L. R. A. (N. S.) 980;DeFarrari v. DeFarrari, 220 Mass. 38, 40, 107 N. E. 404;Knights v. Treasurer and Receiver General, 237 Mass. 493, 494, 130 N. E. 60;Commonwealth v. Croning, 243 Mas. --, 139 N. E. 647.

There is no dispute about the essential facts. The affairs of the Hanover Trust Company were under investigation by a special grand jury in September, 1922. Each member of that grand jury before or during its deliberations received a letter written and sent by the defendant, of the tenor following:

‘53 State Street, Room 311,

‘Boston, Mass., September 23, 1922.

‘To the Foreman, Clerk and Members of the Suffolk County special grand jury: Gentlemen: The affairs of the Hanover Trust Company are under investigation by your body and my official actions as an active officer, treasurer, from October, 1919, to August, 1920, and as a director previously, will be under consideration.

‘I most respectfully request that I be allowed to appear before your body, as I was in the two previous grand jury investigations of these affairs, when ‘no bills' were reported and I hereby tender my services as a voluntary witness, waiving all immunity.

‘Your duty is to reach a fair and just conclusion without fear or favor, and my knowledge of these matters will be a great aid and benefit to you in arriving at such a result.

‘You have the undoubted right to call in any witness you please, and I hope as a matter of fairness and justice that I may be so called.

‘I most respectfully request that you also read and consider the testimony before the two previous grand juries, as is your right before arriving at a finding.

‘Yours respectfully,

[Signed] Wm. S. McNary.

‘Telephone-Congress 6566.’

The special grand jury voted to grant a hearing to the defendant as requested in his letter. He voluntarily appeared before that grand jury, was advised of his rights, waived immunity, and testified regarding the matters of the Hanover Trust Company and his connection therewith. He had requested two previous grand juries for permission to appear before them while investigating the same affairs, had been alloed to, and did not facts, appear before them and ‘no bills' were reported by them.

The judge filed written flndings, among which was this:

‘I find that this letter tended to interfere with the proper administration of justice, to prevent the special grand jurors from considering in the manner required of them by law the matters then being inquired into by them, and to prejudice the minds of the special grand jurors.’

The judge ruled that no inference could be drawn against the defendant from his failure to testify, and that he could not be found guilty unless the complaint against him was proved beyond a reasonable doubt, and then adjudged the defendant to be in contempt by reason of having mailed and caused to be mailed the letter of September 22, 1922.

The single point for decision is whether as matter of law the sending of the letter to the members of the grand jury, in view of all the circumstances disclosed, could have been found to be a contempt of court.

The grand jury is a constitutent part of the court. Presentment by grand jury in cases to which it is applicable is a part of the law of the land, and preserved by the Twelfth Article of the Bill of Rights of the Constitution. The grand jury is a branch or appendage of the court. It is organized and empowered to discharge its appropriate functions by virtue of being impaneled and sworn in open court as prescribed by law. It sits and deliberates under the authority of the court. It may at any time apply to the court for instructions and inveke its power for aid and protection in the performance of its duties. These attributes are essential in order to enable it to discharge its obligations and do its work efficiently and without molestation in the protection of the public against crime and of the individual against oppression. Heard v. Pierce, 8 Cush. 338,54 Am. Dec. 757;Commonwealth v. Bannon, 97 Mass. 214;Commonwealth v. Sanborn, 116 Mass. 61.

It is an inevitable consequence of these principles that the court has the power and is charged with the duty of punishing for contempt any one whose conduct interferes with or has a tendency to obstruct the grand jury. Such conduct is as much contempt, and punishable as such, as that which interferes with or has a tendency to obstruct the administration of justice in the courts in another form or manner. It may be as necessary to put forth the power of the court to protect itself against contempts committed against this instrumentahty of justice as against others. It is a contemptof the court of which the grand jury is a part to obstruct its normal and legal functions. Carwright's Case, 114 Mass. 230;Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 52 N. E. 445,44 L. R. A. 159, 70 Am. St. Rep. 280;Hurley v. Commonwealth, 188 Mass. 443, 74 N. E. 677,3 Ann. Cas. 757;Globe Newspaper Co. v. Commonwealth, 188 Mass. 449, 74 N. E. 682,3 Ann. Cas. 761;Walton Lunch Co. v. Kearney, 236 Mass. 310, 128 N. E. 429.

It is said in the chapter of Davis' Precedents concerning the ‘Office and Duty of Grand Jurors,’ pp. 23, 24:

‘The grand jury hear evidence only in support of the charge, and not in exculpation of the party accused; and, in general they ought never to hear any other evidence than that which is produced by the government. But as they are sworn to present the truth, as it comes to their knowledge, which necessarily requires investigation, if, in the course of such investigation, it appears that there are other witnesses than those produced for the prosecution, and the grand jury are actually convinced that their testimony may be material and pertinent, and of such a nature as would elucidate or explain the evidence for the government, and lead them to a more perfect knowledge of the merits of the case, it is said they may require the testimony of such witnesses. But in this case great judgment and extreme caustion ought to be used, to guard against the danger of hearing evidence on the part of the defendant, and thus changing the institution of a grand jury to that of a traverse jury; by which the whole merits of the case may be decided in a private, instead of a public, tribunal. The grand jury, in the regular discharge of their duty, cannot admit, or hear any testimony, but such as is properly produced to them in support of the prosecution; if, however, the truth is not, by such testimony, sufficiently demonstrated, it is said they may properly seek other...