Mannon v. Frick

• Decision Date: 12 November 1956
• Docket Number: No. 45192,No. 2,45192,2
• Parties: Hugh MANNON, Appellant, v. William Y. FRICK, Stillman Beary and Fidelity and Casualty Company of New York, a corporation, Respondents
• Court: Missouri Supreme Court

Page 158

295 S.W.2d 158

365 Mo. 1203

Hugh MANNON, Appellant, v. William Y. FRICK, Stillman Beary and Fidelity and Casualty

Company of New York, a corporation, Respondents.

No. 45192.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1956.

R. M. Gifford, Green City, for appellant.

L. F. Cottey, Lancaster, P. M. Marr, Milan, for respondents.

EAGER, Presiding Judge.

The present suit is one for damages, actual and punitive, in which it is alleged that the defendants wrongfully and fraudulently conspired to, and did, extort money from the plaintiff under a threat of prosecuting him for statutory rape. Defendant Frick was then the Prosecuting Attorney of Putnam County, having been appointed shortly prior to the occurrences in question, and defendant Beary was the Sheriff of that county; the corporate defendant had executed the sheriff's bond. The trial court directed a verdict for the sheriff and the corporate bondsman, and the jury returned a verdict in favor of defendant Frick. In the view we take of the case it will not be necessary to review the evidence in detail. Suffice it to say that defendant Frick testified that he accepted money from plaintiff in partial settlement of a civil claim for damages for alleged slander, and that he returned it when he severed his connections with the prospective plaintiff. In fairness to the plaintiff, who was 71 years of age at the time of trial, we note that the evidence in this case did not tend to show that he was guilty of the crime referred to.

We are met at the outset with a motion to dismiss the appeal or affirm the judgment for the insufficiency of appellant's brief under Rule 1.08, 42 V.A.M.S., both in its statement of facts and in the points relied on. Respondents' counsel have chosen to stand on that motion and have filed no brief here on the merits. That practice is in nowise to be commended and we trust that no other member of the bar will adopt it. It has certainly not been helpful to the court here. The statement of facts in appellant's brief leaves much to be desired; certain of the points relied on are insufficient under the rule, but others, which group themselves into two classifications, are considered sufficient. The motion is overruled, and we shall proceed to consider those points which we deem properly raised.

The first of these is that the court erred in admitting certain evidence of the proceedings before a grand jury convened in February, 1954, in Putnam County, which apparently investigated charges against these officials. This evidence consisted of: the identification of copies of two documents which were produced before the grand jury and which were subsequently lost, after being taken away by an Assistant Attorney General; the opinion of the latter that a signature on the original of one of these documents was that of the plaintiff; and testimony to the effect that certain other papers were also produced before the grand jury. The defendant Frick had produced for the grand jury both of the exhibits which were subsequently lost, and, of course, they were never returned to him. The official court reporter, the Assistant Attorney General, defendant Frick, and one of plaintiff's former attorneys gave testimony concerning the lost exhibits and the correctness of one or both of the copies.

Counsel for plaintiff made various and sundry objections to the use of any and all evidence concerning matters which transpired in the grand jury room, as violative of the secrecy of such proceedings; he apparently takes the view that in no event may anyone testify to any such matters unless required to do so in court in a subsequent criminal proceeding. First, we shall examine the applicable statutes; all references herein are to RSMo, V.A.M.S., unless otherwise specified. Section 540.110 provides for and sets out the oath to be administered to witnesses appearing before a grand jury; therein he or she swears that he (or she) will not divulge the fact that the matter or matters in question are being considered or any other fact or thing there transpiring, 'unless lawfully required to testify in relation thereto.' Section 540.120 provides a penalty for the violation of that oath. Section 540.105 provides for the oath of the official reporter, and does not contain the specific exception of Sec. 540.110. The purport of Sec. 540.300 is that members of the grand jury may be required by any court to testify whether the testimony of a witness before such court is consistent with his or her prior testimony before the grand jury, and that they may also be required to testify similarly upon any complaint against a grand jury witness for perjury; Sec. 540.320 provides, in substance that members of the grand jury shall not disclose any evidence given or the names of any witnesses, 'except when lawfully required to testify as a witness in relation thereto' and that they shall not disclose the fact that an indictment has been found until the defendant has been arrested. A violation of the last provision is made a misdemeanor.

The reasons for the policy of secrecy in connection with grand jury proceedings are fully discussed in Vol. VIII, Wigmore on Evidence, 3d Ed., Sec. 2360. In somewhat less detail, these are generally said to be: to protect the jurors themselves; to promote a complete freedom of disclosure; to prevent the escape of a person indicted before he may be arrested; to prevent the subornation of perjury in an effort to disprove facts there testified to; and to protect the reputations of persons against whom no indictment may be found. 24 Am.Jur., Grand Jury, Sec. 47. Some of these reasons have since been considered as of somewhat decreased importance, as in Ex parte Welborn, 237 Mo. 297, 141 S.W. 31, 34; State v. Thomas, 99 Mo. 235, 12 S.W. 643; and, indeed, the statutes themselves have considerably eroded the strict common law rule.

In the very early case of Tindle v. Nichols, 1855, 20 Mo. 326, the court held that a grand juryman should not be permitted to testify in a civil slander suit as to what the defendant said before the grand jury; this, for the reason that he might only testify to the matters expressly provided in the statutes, which were then and are now substantially the same; further, the court held (when we transpose the section numbers) that Sec. 540.320 did not broaden the provisions of Sec. 540.300, or in other words, that a grand juryman may only testify to the matters provided in our present Sec. 540.300. It may be that the court there held that a grand juryman could only testify in a subsequent criminal case. There has been much discussion as to what this case really means, State v. Campbell, 73 Kan. 688, 705, 85 P. 784, 9 L.R.A.,N.S., 533. That opinion was followed in the cases of Beam v. Link, 27 Mo. 261, and Kennedy v. Holladay, 105 Mo. 24, 16 S.W. 688, neither of which added anything material by way of discussion. Plaintiff also cites the cases of State v. Johnson, 115 Mo. 480, 22 S.W. 463, State v. Salmon, 216 Mo. 466, 115 S.W. 1106, and Conway v. Quinn, Mo.App., 168 S.W.2d 445. The Johnson case involved an effort to invalidate an indictment by showing irregularities in the grand jury proceedings; and this, by offering evidence of grand jurymen and admissions of the prosecuting attorney; it was held that such evidence, and also evidence as to the reasons for the voting of the indictment, could not be received by way of impeachment. Similarly, in the Salmon case the essential question was whether an indictment was vitiated by the unauthorized presence of a stenographer, who was also a witness, and who took notes in the grand jury room and read them back to the jury. The statute providing for an official grand jury reporter was adopted in the Laws of 1951, p. 461. The court held, on a plea in abatement, that the indictment was invalid; objections were made to the evidence when offered, but on the appeal the facts seem to have been conceded, 115 S.W. loc. cit. 1121, and the admissibility of the evidence was not decided. In the Conway case the court held that the Judge of the Criminal Court of the City of St. Louis could not lawfully require a stenographer, designated by the prosecuting attorney to take notes in the grand jury room, to furnish a transcript to the court; by the express terms of the statute under which the stenographer was appointed, he could only make disclosure to the prosecuting attorney or by testifying in open court. These cases are certainly not controlling here, and indeed the factual situations were so different that they are hardly persuasive on any feature. At best, they express more generalities, so far as we are concerned here.

Many of the states have statutes similar, in general, to those of Missouri. From our examination of the decisions in other states and of the works of text writers, it is our conclusion that the original rule of common law secrecy has been substantially modified, not only by the enactment of statutes, but by court decisions as well. Our statutes in themselves constitute a limitation of the common law rule, and an expansion of the right of disclosure. While there is still considerable diversity of opinion on the subject, the weight of authority seems to be that, since the original rule of secrecy was adopted to protect and promote the public welfare, the law may, through its constituted tribunals, dispense with the observance of secrecy, and in the furtherance of jurstice require a witness or witnesses to testify to certain of the proceedings before a grand jury; and that such disclosure may be required either in the general public interest or in the protection of private rights. Some disclosures are still generally forbidden as, for instance, the votes of the respective grand jurymen, and their deliberations or expressions of opinion. See Sec. 540.310. For expressions generally in accord with this view see the following cases: State v. McPherson, 114 Iowa 492, 87 N.W. 421...