Lebowitch v. Commonwealth (In re Lebowitch)

• Decision Date: 01 April 1920
• Citation: 235 Mass. 357,126 N.E. 831
• Parties: In re LEBOWITCH. LEBOWITCH v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 357

126 N.E. 831

In re LEBOWITCH.

LEBOWITCH

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1920.

Error from Supreme Judicial Court, Suffolk County.

William Lebowitch Convicted of attempted larceny, brings error and petitions for writ of habeas corpus. Judgment affirmed, and petition for habeas corpus denied.

There two cases, one a writ of error and the other a petition for a writ of habeas corpus, present the same questions, which are stated in the opinion.

E. M. Shanley, of Boston, for petitioner.

J. C. Pelletier, Dist. Atty., and A. C. Webber, Asst. Dist. Atty., both of Boston, for the Commonwealth.

RUGG, C. J.

1. The main question presented on these records is whether the fact, that at the hearing before the grand jury which returned the indictment against William Lebowitch all the witnesses including police officers were present in the grand jury room and within hearing at the time when each witness gave his testimony, can be raised after trial, verdict and sentence, in instances where this fact did not come to the knowledge of the person indicted or his counsel until after sentence.

It was decided in Commonwealth v. Harris, 231 Mass. 584, 121 N. E. 409, that a plea in abatement before a general plea of not guilty based on such facts should be sustained. That result was required by Jones v. Robbins, 8 Gray, 329. Those decisions are based upon the fundamental conception that proceedings before the grand jury must be in secret. In an Opinion by the Justices reported in 232 Mass. 601, 123 N. E. 100, the Senate were advised that a statute permitting police officers to be present in the grand jury room during the examination of other witnesses would be contrary to the right secured by article 12 of the Declaration of Rights because violative of the essential secrecy of the grand jury.

The chief argument of the district attorney in the case at bar has been directed to the point that that which has been thus declared should be relaxed in favor of a looser and what may be thought more expeditious practice. The matter was carefully considered at length on these two late occasions. Decisions in other jurisdictions now called to our attention were fully examined and maturely considered before these opinions were announced. The conclusions there reached were deliberate. Renewed study of the whole subject does not lead to the result that any erroneous or mistaken view there was set forth. The evil of the contrary practice is denounced by some courts which do not hold it unlawful. State v. Wood, 112 Iowa, 484, 486, 84 N. W. 520;Sadler v. State, 124 Tenn. 50, 136 S. W. 430, Ann. Cas. 1912D, 976;Lawrence v. Commonwealth, 86 Va. 573, 577, 10 S. E. 840. While there are adjudications expressing an opinion different from that of this court, many of them arose with reference to the presence of stenographers whose aid was thought to be necessary.

The grand jury as known to the common law always has been regarded as a bulwark of individual liberty and a fundamental protection against despotism and persecution. The rule of secrecy of its hearings and deliberations has come down from early times. There is nothing new about it. Adherence to it, which has been doubtless more strict in some counties than in others in recent years, has never been commonly thought burdensome or found in practice to result in any inefficiency in the inquest.One purpose of the grand jury in making its investigations and accusations is to ascertain truth. Where that end in its essence cannot be achieved without the presence of more than one person, the rule that only one person may be present is not applicable. For example an interpreter must be in the grand jury room at the same time with the person ignorant of the English language. A prisoner of desperate character brought on habeas corpus to testify before the grand jury might be taken into its presence under guard. An indispensable attendant for a sick or disabled witness would not contravene the rule. Where, for example, a ballot box is by law in custody of one person and the key to it in that of another and the grand jury needs to examine the contents of the box, the presence of the two officials necessary to open it would not be a violation of the rule. See Cochran v. State, 119 Md. 539, 87 Atl. 400. Such instances, however, rest upon inherent necessity and not upon convenience. It is only when some imperative compulsion requires it to prevent a miscarriage of justice or an utter failure of the investigation imposed by law upon the grand jury that more than one stranger at a time may be before the grand jury. That is not a relaxation of the established and constitutional method of examination of witnesses before the grand jury but a part of it.

The reasons stated and the conclusions reached in Commonwealth v. Harris, 231 Mass. 584, 121 N. E. 409, and in Opinions of Justices, 232 Mass. 601, 123 N. E. 100, need not be repeated. They are aproved and adopted as the basis of this decision. The practice to the contrary prevailing in Suffolk county for more than 40 years, as averred in the plea in nullo est erratum, manifestly cannot override the fundamental law.

[3] Such an objection to an indictment as is here specified can be raised only before the general plea of guilty or not...