Hartgraves v. State

• Citation: 114 P. 343,5 Okla.Crim. 266
• Parties: HARTGRAVES v. STATE.
• Decision Date: 21 March 1911
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

114 P. 343

5 Okla.Crim. 266

HARTGRAVES v. STATE.

Court of Criminal Appeals of Oklahoma

March 21, 1911

Syllabus by the Court.

(a) Where counsel privately employed to prosecute a case appear before a grand jury and assume to represent the state upon the investigation of a case then pending before said grand jury, an indictment found by said grand jury as the result of such investigation should upon motion of the defendant be set aside.

(b) If the county attorney is disqualified from representing the state in the prosecution of a party charged with crime, said county attorney is without authority to appoint a special attorney to represent him before the grand jury in the investigation of said cause, and an indictment found as the result of such investigation upon motion of the defendant should be set aside.

(c) No person has a right to be in a grand jury room during any of their proceedings while investigating a criminal charge except the witness then being examined and the attorney authorized by law to represent the state in such examinations; and, if any other person is in the grand jury room during any part of their investigations, an indictment found by them as the result of such investigation should upon motion of the defendant, be set aside.

An indictment for receiving stolen goods should allege the name of the person from whom such goods were so received; and, if the name of such person is unknown, that fact should be alleged.

Where the plea of a former acquittal is interposed, but no evidence is introduced to support it, it is not improper for the court to decline to instruct the jury on that issue.

Appeal from District Court, Custer County; W. N. Mabee, Judge.

T. D Hartgraves was convicted of receiving stolen goods, and his punishment assessed at one year's imprisonment, and he appeals. Reversed and remanded, with directions.

R. J Shive, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN P.J.

First. Defendant filed a motion in the lower court to set aside the indictment in this case upon the ground that F. A. Snodgrass was the duly elected and qualified county attorney of Custer county, and was in attendance upon the court and the grand jury when his presence was required during the term of the court at which this indictment was found, and there was no physical or mental disqualification which incapacitated said Snodgrass from performing his duty as such county attorney at said time, but that R. P. Phillips, a member of the bar, who was not the county attorney or deputy county attorney of Custer county, Okl., and was not the Attorney General or Deputy Attorney General of the state of Oklahoma, and was not authorized or empowered by law to appear before said grand jury when they were considering this accusation against defendant, but was privately employed by the prosecuting witness in this cause to prosecute this defendant without warrant or authority of law, was present and presented this case to the grand jury and conducted the examination of the witnesses before the grand jury when the grand jury was considering as to whether or not they should find an indictment against the defendant in this cause, and said R F. Phillips insisted that said grand jury should indict this defendant. This motion was duly sworn to by the defendant. The court heard part of the evidence in support of this motion to the effect that said F. A. Snodgrass was the county attorney of Custer county, and was disqualified from prosecuting the defendant because prior to the election of said Snodgrass to the office of county attorney of Custer county, Okl., he had represented the defendant in some cases connected with the transaction in which the defendant is now indicted. It also appeared that said F. A. Snodgrass had verbally requested said R. P. Phillips to represent the state before the grand jury upon the investigation of this case, but that the said R. P. Phillips was not appointed as deputy county attorney, and did not have a commission from the district judge of Custer county to act as county attorney in this case. The district court thereupon declined to hear further testimony, and overruled the defendant's motion to set aside the indictment. As there was no denial of the other allegations contained in appellant's motion, they must be taken as confessed, and the only question before us is, Are the facts proven and the allegations in the motion which were not controverted sufficient to set aside the indictment?

Section 6683, Snyder's Comp. Laws Okl. 1909, is as follows "The grand jury may at all reasonable times ask the advice of the court or of the district attorney. The district attorney may at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable before them and may interrogate witnesses before them whenever he thinks it necessary, but no other person is permitted to be present during their sessions except the members and a witness actually under examination and no person whomsoever must be permitted to be present during the expression of their opinions or the giving of their votes upon any matter before them." This statute must be construed in connection with the other provisions of law with reference to county attorneys and their deputies and the Attorney General and his deputies. We think the plain meaning and import of this statute is that no one should be permitted to be present during the sessions of the grand jury except the witnesses and the officers duly authorized by law to so appear. Section 6738, Snyder's Comp. Laws Okl. 1909, provides that the indictment must be set aside on motion of a defendant for certain specified reasons. But the special grounds for setting aside an indictment contained in this section are not exclusive of other grounds, for it is expressly provided that an indictment must be set aside whenever it appears that it was not found, indorsed, presented, or filed as provided by the statutes of the state. It is true that a substantial compliance with the provisions of the statutes relating to grand juries and the manner in which indictments are to be found and presented is all that the law requires, but, whenever there has been a departure from the provisions of the statutes which would deprive a defendant of a substantial right or would be dangerous to justice, then an indictment so found must be set aside. Prior to statehood, no person could be prosecuted for a felony unless by indictment found by a grand jury. But the grand juries had indicted so many persons where convictions could not be obtained that the people had in a great measure lost confidence in this institution. In fact, grand juries were by many regarded largely as repositories of malice, cowardice, and perjury, not on account of the men who composed the grand juries, but on account of their secret inquisitorial powers, which enabled cowardly, corrupt, and malicious men to go before a grand jury and prefer charges which they would not dare to make publicly. It gave such characters an opportunity from ambush to shoot their enemies in the back. Although a man so indicted would be acquitted, yet it would place an indelible stain upon his good name, however innocent he might be. So the constitutional convention endeavored, as far as possible, to substitute in its place proceedings by information in felony cases where the defendant would have a preliminary trial before an examining magistrate, unless he saw fit to waive such preliminary trial. The purpose of this was to give a defendant, where he demanded it, as far as possible, an opportunity to face his accusers and present his defense in open court before he would even be placed upon final trial. Had it not been for the fact that cases sometimes arise in which it would be difficult if not impossible to institute criminal proceedings without a grand jury, the system doubtless would have been abolished entirely. Therefore section 18 was incorporated in our Bill of Rights, which is as follows: "A grand jury shall be composed of twelve men, any nine of whom concurring may find an indictment or true bill. A grand jury shall be convened upon the order of a judge of a court having the power to try and determine felonies, upon his own motion; or such grand jury shall be ordered by such judge upon the filing of a petition therefor signed by one hundred resident taxpayers of the county; when so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime; and such other powers as the Legislature may prescribe: Provided, that the Legislature may make the calling of a grand jury compulsory." From this it is seen that no grand jury can be convened unless upon order of the judge of the district court, either upon his own motion or upon a petition, therefor signed by at least 100...