Lewis v. State

• Citation: 132 Miss. 200,96 So. 169
• Decision Date: 14 May 1923
• Docket Number: 23156
• Court: United States State Supreme Court of Mississippi
• Parties: LEWIS v. STATE

96 So. 169

132 Miss. 200

LEWIS v. STATE

No. 23156

Supreme Court of Mississippi

May 14, 1923

1. INDICTMENT AND INFORMATION. Grand jurors not competent to impeach indictment by testifying to prosecuting attorney's advice.

Grand jurors are incompetent to testify as to what the prosecuting attorney advised them in the grand jury room for purpose of impeaching their indictment on motion to quash.

2. CRIMINAL LAW. Error in admitting evidence harmless where not substantially prejudicial.

Any error in admitting evidence of previous difficulty between defendant and the person assaulted was harmless where it was not substantially prejudicial to defendant.

HON. C P. LONG, Judge.

APPEAL from circuit court of Itawamba county, HON. C. P. LONG Judge.

Luther Lewis was convicted of assault with a deadly weapon, with intent to kill and murder, and he appeals. Affirmed.

Judgment affirmed.

Leftwich & Tubb, for appellant.

We submit that ever since the enactment of the statute found in the Code of 1857, page 614, article 252, which is now section 2203 Hemingway's Code, directly making provision that members of the grand jury may be called in court to testify as to its proceedings, the law has been practically well settled that a person accused of a felony had the right to offer members of the grand jury either on a motion to quash or plea in abatement (which used to be the remedy) to show improper influence brought to bear on the grand jury such as the intrusion of outside parties into the grand jury room and the substance and effect of statements made by these parties to induce the grand jury to return the indictment; and, in fact, the improper actions of the court or the district attorney or others, coaxing or influencing the grand jury to indict, as well as any and all other improper influences exerted upon the grand jury resulting in the indictment on trial.

The first case in Mississippi construing this statute, was Rocco v. State, 37 Miss. 357. This case was decided at the October Term, 1859. This question is dealt with at page 369, where the opinion of the court treats the assignment of error relied on to the effect that a member of the grand jury was permitted to testify as to the particular offense resulting in the indictment on trial. It is true the state offered the witness, the grand juror who went into the details of the testimony in the grand jury room. The court in passing upon this exception uses the following language "Whatever may have been the rule in relation to the competency of these questions before the passage of the present code, they are rendered competent by the provisions then made upon the subject. Revised Code section 614, article 252."

The court manifestly regarded this statute as authority for proving what went on in the grand jury room on a motion to quash the indictment, and no distinction was made as to whether the state might introduce the proof or whether the defendant might introduce it. The idea is hinted at, that even though prior to this statute it would be improper to disclose the secrets of the grand jury room, yet since this statute was enacted, there could be no question as to the competency of this class of testimony. It matters not whether the evidence is offered by the state or the defendant, in fact the statute makes no distinction. Durr v State, 53 Miss. 425; Welch v. State, 68 Miss. 341.

It will be observed that in a review of these cases it manifestly appears that the counsel engaged in the trial of them and the respective courts, all seem to concede that there was no question about the competency of the testimony under the statute, the only question raised in these cases of any serious consequence was the method of procedure and as to whether or not the improper influences brought to bear on the grand juries was such as to vitiate the indictment. We have cited in our original brief the cases of Blau v. State, 82 Miss. 514; Fuller v. State, 85 Miss. 119; for the reason that these cases bear upon this question of improper influences upon the grand jury either by the court, the district or county attorney, or any other improper influences. The further consideration given to these questions by this court in these two cases shows the zealous care the court always exercised in protecting the citizen against being called upon to defend an indictment found under circumstances such as appear in the case now at bar. A reading of these cases is certainly helpful and most enlightening. Collier v. State, 104 Miss. 602.

We submit that this court has never held and should not hold that testimony of this character although offered by members of the grand jury should not be received and on the contrary the very statute itself seems to make the exception; since 1857 this court has gone along receiving such testimony and acting upon it and ought to continue to do so.

The several authorities cited by the assistant attorney-general to the effect that a petit juror cannot impeach his own verdict are not in point. That is not the question at issue here. Nobody questions those authorities, and the only direct authority he has to the effect that members of the grand jury cannot testify in cases of this character is the case of State v. Comeau, 19 So. 120, which is a Louisiana case. Sections 2352 and 2364 of 4th Wigmore on Evidence, showing that the general rule is as we have indicated.

We submit, therefore, that the learned court below committed error when he declined to permit the defendant to introduce the three members of the grand jury to show the statements made to the grand jury by the district attorney as alleged as a ground to support the motion to quash.

We respectfully submit that the case should be reversed and appellant discharged.

S. C. Broom, special assistant attorney-general, for the state.

The real question now presented to the court is not as above stated, but is as follows: "Is a member of the grand jury a competent witness to testify to impeach the findings of a grand jury of which he was a member?" Having thus proceeded from a wrong premise they have necessarily arrived at an erroneous conclusion, as I will endeavor to presently show.

It will be observed that counsel has cited ten authorities supporting his view on the law as herein involved. In order to differentiate these authorities from the present case we find it necessary to treat each of them separately. Rocco v. State, 37 Miss. 357.

In this case there was a plea of autrefois convict filed by the defendant and the district attorney called a former member of the grand jury to testify or to prove that this was a separate and distinct offense that the defendant in this case was indicted for, and the defendant objected there on the ground that he was an incompetent witness. But the court held: "Whatever may have been the rule in relation to the competency of these questions before the passage of the present code, they are rendered competent by the provisions then made upon the subject. Revised Code 614, article 252."

It will therefore be observed that this testimony was to sustain the findings of the jury and not to impeach their acts; that he was introduced by the state and the state availed itself of its right under a statute that was enacted for the protection of the state. The Act of 1857, Revised Code above referred to, or any subsequent act up to Hemingway's Code, section 2203, does not provide for nor authorize the impeachment of the findings of a grand jury by one of its own members. The grand jury does not try cases. Grand juries are representatives of the state and not of the defendant.

I would call the attention of the court to the language of the court in the Rocco case, where it says: "In relation to the competency of these questions: 'That, I submit is a significant thing in connection with the ruling of the court.'" Durr v. State, 53 Miss. 425.

In this case the trial court permitted an attorney who had been employed (as private counsel) to assist the district attorney, to go before the grand jury with witnesses, and there act for the district attorney in framing the indictment and the court here held that this was improper. It is apparent on the face of it, however, that it was unnecessary to prove this misconduct by any member of the grand jury, and the competency of a juror to impeach their findings was not here presented to the court. The question was. "Is this such misconduct as would vitiate the indictment?" and the court very properly held that it was. This was not the ground of reversal, however, but the case, as a matter of fact, was reversed because one of the petit jurors was permitted to separate from his fellows, or brother jurors, and go to the home of a friend unaccompanied by the bailiff in charge of the jury. It was not necessary to prove this misconduct on the part of the petit juror by any member of the petit jury, and so again the competency of a juror as a witness to impeach their verdict was not called in question by the court in this case. Welch v. State, 68 Miss. 341.

In this case private counsel employed to aid in the prosecution in a committing court, went before the grand jury and made a speech urging the finding of an indictment, but this conduct was admitted to be true by the state, and the court found "that an indictment found under such circumstances should be quashed." The court did not say that it would be proper to prove these circumstances by a member of the...