Cox v. Vaught, 553.
| Decision Date | 19 September 1931 |
| Docket Number | No. 553.,553. |
| Citation | 52 F.2d 562 |
| Parties | COX et al. v. VAUGHT, Judge. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Sid White, of Oklahoma City, Okl., for petitioners.
Before LEWIS and McDERMOTT, Circuit Judges, and JOHNSON, District Judge.
The petitioners have asked leave to file a petition in mandamus against the Honorable Edgar S. Vaught, Judge of the United States District Court, for the Western District of Oklahoma. The application, together with the attached petition for mandamus, discloses the following facts:
The petitioners, with others, have been indicted for using the mails in pursuance of a scheme to defraud. To that indictment the petitioners have filed a motion to quash, which is positively verified by each defendant in person. The motion to quash alleges:
To such motion a response was filed, verified by the United States Attorney, denying the allegations of the motion.
The petitioners thereupon called the matter to the attention of the trial court, and requested that a time be fixed at which the evidence could be taken on the issues so joined, and requested that the court grant to them compulsory process to require the attendance of the witnesses who appeared before the grand jury and the grand jurors, to testify as to the proceedings before the grand jury.
The trial court inquired of counsel for the defendants whether defendants had any evidence to support the general allegations of the motion. Counsel replied that neither he nor the defendants could state the character of evidence introduced before the grand jury. He stated that they knew what witnesses appeared before the grand jury, and that they knew what the truth was concerning the charges, and he therefore knew that there could be no legal and competent evidence to sustain the various counts, and if accorded the opportunity, they could prove that no legal and competent evidence was introduced before the grand jury. The trial court held that the whole purpose of the motions "was to try to secure before trial all of the evidence which went before the grand jury" and that the motion "bears indications too strongly that it is a mere fishing expedition."
From the statements made by counsel to the trial court and to this court, it is clear that the allegations in the motion to quash are mere conclusions, and that neither defendants nor their counsel are in possession of any facts in support thereof. The position of counsel is that his clients are not guilty; he has a right to assume that the witnesses before the grand jury testified truthfully; that if they did testify truthfully, the grand jury could have had no evidence upon which to return the indictment. The question of whether the witnesses who testified before the grand jury were truthful or mistaken cannot be tested by a motion to quash. The function of such a motion is not to test the truthfulness of the evidence presented before the grand jury, but to test the question of whether the indictment was predicated upon any evidence.
The grand jury is charged to investigate the facts presented to it, and to return indictments only if there is legal and competent evidence that an offense has been committed and reasonable ground to believe that those charged are guilty. There is a strong presumption that the grand jury has faithfully discharged its duty. While the presumption is strong, it is not irrebuttable, and if it is clearly proven that an indictment was returned without evidence, the indictment must be quashed.
The particular point here presented, however, is whether the jurisdiction of the trial court to inquire into the question is properly invoked by a naked allegation that no evidence was introduced, without supporting facts. We are of the opinion that the trial court was clearly right in declining to enter into such an investigation upon the bald and naked allegations of these motions. Furthermore, the trial court afforded counsel an opportunity to state whether he was possessed of any facts that would be sufficient to invoke the jurisdiction of the trial court, and counsel stated that he had no...
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