Ex parte Brown

• Decision Date: 31 October 1880
• Citation: 72 Mo. 83
• Parties: EX PARTE BROWN.
• Court: Missouri Supreme Court

72 Mo. 83

EX PARTE BROWN.

Supreme Court of Missouri.

October Term, 1880.

Habeas Corpus.

Edmund T. Allen for the petitioner.

1. There was no fact stated in the application for the subpœna duces tecum, or in the subpœna prayed for, or in the report of the grand jury, upon which the commitment issued, tending to show: 1st, That the papers called for were in existence. 2nd, That if in existence, they were necessary evidence in any matter pending before the grand jury. 3rd, That if in existence, they were relevant, or material, or competent evidence in any matter pending before the grand jury.

2. The subpœna required the production of all the telegrams which had passed between the parties named, during the period mentioned, without reference to whether or not they were relevant or competent evidence.

3. The papers called for were ordered to be produced and exhibited, not to the court for its determination as to their relevancy or competency, and their consequent exposure, but to a grand jury, a body unauthorized by law to exercise any such judicial function.

4. The issue of such a subpœna, under such circumstances, was prohibited by the 11th section of the bill of rights of this State. ( a) History of this provision and its effects. Wakely v. Hart, 6 Binney 316, p. 319; No. 84 Federalist, (Ed. 1864,) p. 631; Story Const. Law, §§ 304, 1838, 1861; Pomeroy Const. Law, § 238. ( b) The first clause is complete in itself, and forbids any unreasonable search or seizure. ( c) It is left to the judiciary to determine what are reasonable searches and seizures, and what is probable cause for making a reasonable search. ( d) Any interference with the books and papers of a person, not a party to any proceeding pending in court, is unreasonable, unless: 1st, His books or papers are necessary evidence in such proceeding. 2nd, They are material and competent evidence in the investigation pending. Thus, the same rule is deduced from an analysis of the 11th section of the bill of rights as was attained by Mr. Hitchcock from Amey v. Long, 9 East 473, in his paper in 5 South. Law Rev. (N. S.) 473. Hall v. Young, 37 N. H. 134; Morrison v. Sturges, 26 How. Pr. 177; Wilkie v. Moore, 17 How. Pr. 480, People v. Rector of Trinity Church, 6 Abb. Pr. 177; Commercial Bank v. Dunham, 13 How. Pr. 541; Davis v. Dunham, 13 How. Pr. 425; Cassard v. Hinman, 6 Duer 695; Smith v. McDonald, 50 How. Pr. 519; C. C. R. R. Co. v. 23rd St. R. R. Co., 53 How. Pr. 45; Mott v. Consumers' Ice Co., 52 How. Pr. 150. The court could not delegate to the grand jury the delicate function of passing upon the necessity for and the relevancy of these papers, and the resulting reasonableness or unreasonableness of their production. Whitcomb's case, 120 Mass. 118.

5. The statute imposing secrecy upon the grand jury affords no reason why the court should not have been put in possession of all the facts, necessary for it to determine the reasonableness of the demand for these papers. If such was its intention, it must yield to the constitutional provision. People v. Kelley, 24 N. Y. 74; s. c., 1 Am. Law Reg. (N. S.) 534.

6. History of controversy as to production of telegrams by the telegraph company, under subpœnas duces tecum, so far as relates to their immunity as telegrams. U. S. v. Babcock, 3 Dill. 567; Barnes' case, in Congress; Smith's case, Kansas Legislature. (1) Importance and extent of telegraphic communication. Pen. T. Co. v. W. U. T. Co. 96 U. S. 9. (2) Comparison with letters in mails. (3) Immunity of letters rests upon 4th Amend. Fed. Const. Ex parte Jackson, 96 U. S. 733. It has “grown out of the custom of the people.” Lieber's Civil Liberty and Self Gov., vol. 1, ch. 9; English History of “Free Letter;” May's Const. History, vol. 2, p. 279, et seq; Chamber's Encyclopedia, Article Post. (4) Immunity of letters does not rest simply upon a trust assumed by the Government. It is an inherent right, and relates to letters in transit, whether in the mail or by private carrier. U. S. R. S., § 3993; Mo. R. S., §§ 1584, 1585, 1586. (5) As a method of communion, it is a primordial right. Lieber on Civil Liberty, etc., ch. 9, p. 108, et seq; Ch. 22nd, pp. 287, 288, 290; Lieber's Political Ethics, (2 Ed.) § 47, p. 183; also § 34, p. 162; § 55 p. 200; § 56, p. 202. (6) As methods of communion the letter and telegram, so far as the incidents of transmission are concerned, should stand upon the same basis. ( a) That the government sends the letter, and a private corporation the telegram, does not affect the principle. 96 U. S. 1. ( b) Objections of inconvenience, such as that the courts would be debarred from access to evidence, are not valid. Lord Lyttleton's argument in House of Lords, 15 Hansard's Parl. Hist., 1355, 6 et seq. Same argument made in favor of general warrants of arrest, and wholesale seizure of books and papers. Parl. Hist., 1402; Id., vol. 16, pp. 8, 10. The courts, since the last century, have gotten along without letters abstracted from the mail. They will do equally well without the telegram taken from the telegraph office. It has been thought better that the State should be unable to punish crimes in certain instances, than that the rulers should have the power, through a perversion of judicial proceedings to oppress and wrong the people. Pomeroy on Const. Law, § 257; Cooley on Const. Lim., (4 Ed.) 303: 18 Am. Law Reg. 65.

J. G. Lodge also for petitioner.

1. A subpœna duces tecum will only be allowed to issue upon a reasonable showing that the papers sought exist, and that they are not privileged, and that they are necessary and material in the case in which they are sought to be used. In every instance it is a question for the judge to whom the application is made for the subpœna, to decide upon grounds of “reason and equity” whether it should issue or not. Amey v. Long, 9 East 473, 484; U. S. v. Babcock, 3 Dill. C. C. 567.

2. Petitioner is a mere servant of the telegraph company, having no control over any message in the office of the company. All messages are in the possession of the company; and its rules forbid the petitioner from delivering messages to any one except the person addressed. He cannot take them before the grand jury without disobeying the orders of the company. Bank of Utica v. Hillard, 5 Cow. 419; Bank of Utica v. Hillard, 5 Cow. 158; Crowther v. Appleby, L. R. 9 C. P. 23; Earl of Falmouth v. Moss, 11 Price 455; Attorney General v. Wilson, 9 Simons 526; Lee v. Angas, L. R. 2 Eq. 59; Wright v. Mayer, 6 Ves. Jr. 280; McCann v. Beere, 1 Hogan 129; 2 Daniels Chancery Pl. and Prac., 1376; Miles v. Dawson, 1 Espinasse 405; Bateson v. Hartsink, 4 Espinasse 43; Austin v. Evans, 2 Man. & Grang. 430; LaFarge v. LaFarge Fire Ins. Co., 14 How Pr. R. 30; Woods v. DeFiganiere, 16 Abb. Pr. R. 160; Murray v. Walter, 1 Cr. & Ph. 114.

J. L. Smith, Attorney-General, for respondent.

1. Telegraphic dispatches in the possession of the officers of the company are not privileged communications, and their production can be compelled as other writings. Henisler v. Freedman, 2 Pars. Sel. Cas. 274; Scott & Jarn. on Tel., § 378, note; State v. Litchfield, 58 Me. 267; Bank v. Bank, 7 W. Va. 544; U. S. v. Babcock, 3 Dill. C. C. 567; Ince's case, 20 Law Times (N. S.) 421; Ex Parte Brown, 7 Mo. App. 484; s. c., 8 Cent. Law Jour. 378; Scott & Jarnagin on Tel., § 377, et seq; 5 Congressional Record, pt. 1, 44th Cong., 2nd Sess., pp. 325, 330, 352, 358, 439, 449, 452, 455, 476, 477, 512, 514, 602, 608, 629, 631, 678, 694.

2. It would be an anomaly, indeed, if a private corporation could make a rule which, in terms, nullifies process issued by a court of justice; and when the law demands and calls for certain evidence, a telegraph company can defeat that demand by a rule enacted by itself. This was no reason whatever for a refusal to obey this writ. Ince's case, 20 Law Times (N. S.) 421. It is of no consequence who has the legal custody of the writing, if it is in the actual possession of the witness. Amey v. Long, 9 East 473; Chaplain v. Briscoe, 5 Sm. & Marsh. 198, 208. See remarks of Mr. Knott, 5 Cong. Rec. 358.

3. The statement in the application for the subpœna that the telegrams are in “the possession of said Brown and are needed as evidence, and are material in certain matters now pending before the grand jury now in session and over which they have jurisdiction; said matter and inquiry being had with a view of finding an indictment,” is at least a prima facie determination that the telegrams are in the possession of the witness, and that they are material to a matter now pending before the grand jury, which they are investigating with a view of discharging their sworn duty. This complies with even the most extreme view that has of late been taken against the sufficiency of general descriptions of papers sought to be reached by subpœna duces tecum. Hitch. on Inviol. Tel., p. 36, et seq.“The papers are required to be stated or specified only with that degree of certainty which is practicable, considering all the circumstances of the case, so that the witness may be able to know what is wanted of him, and to have the papers on the trial, so that they can be used, if the court shall then determine that they are competent and relevant evidence. * * When a party wants the production of a paper, document or book, he must specify it with as much particularity as is practicable; he must state what it is; he must make a prima facie showing that it is in the possession of the other party, and that it is material. * * The writ describes with sufficient particularity, indeed, with all the particularity that seemed to be practicable, under the circumstances, the very messages that are wanted.” U. S. v. Babcock, 3 Dill. C. C. 566; Barnes' case, 5 Cong. Rec. 358, 477, 514, 602.

It would be a matter of utter impossibility to give a more definite description of the desired evidence than is contained in the subpœna. The investigations of a grand jury are ex necessitate...