McCarthy v. Wayne Cnty. Circuit Judge

• Citation: 293 N.W. 683,294 Mich. 368
• Decision Date: 06 September 1940
• Docket Number: Motion No. 389.
• Parties: McCARTHY v. WAYNE COUNTY CIRCUIT JUDGE.
• Court: Michigan Supreme Court

294 Mich. 368

293 N.W. 683

McCARTHY

v.WAYNE COUNTY CIRCUIT JUDGE.

Motion No. 389.

Supreme Court of Michigan.

Sept. 6, 1940.

Original mandamus proceeding by John P. McCarthy against the Circuit Judge for the County of Wayne.

Petition dismissed.

Argued before the Entire Bench.

Fitzgerald & Walker, of Detroit, for petitioner.

Chester P. O'Hara and Wendell Brown, both of Detroit, for respondent.

NORTH, Justice.

Plaintiff, John P. McCarthy, while serving as a lieutenant of the police department of Detroit, was a witness before Honorable Homer Ferguson, a judge of the circuit court of Wayne county, who was conducting an investigation under the statute (Comp.Laws 1929, § 17217 et seq.; Stat.Ann. 28.943 et seq.) for the purpose of ascertaining whether certain violations of the criminal laws were prevalent in Wayne county. During the course of plaintiff's examination the circuit judge, being of the opinion that the answers given by plaintiff were ‘evasive’ and that plaintiff was guilty of deliberately and corruptly giving false testimony, adjudged plaintiff guilty of contempt of court. Thereupon the circuit judge on August 31, 1939, imposed sentence by committing plaintiff to the county jail for five days unless sooner discharged by law. Plaintiff served the jail sentence and was discharged from custody September 4, 1939. Thereafter, and on September 25, 1939, being desirous of obtaining leave from this court to appeal, plaintiff sought to have a concise record settled before the circuit judge on the basis of which an application for leave to appeal could be considered in this court. As a part of such concise record plaintiff sought to have embodied therein that portion of his testimony as to which the circuit judge held plaintiff's answers were evasive and wherein the circuit judge found plaintiff had testified falsely. Plaintiff also sought to have embodied in the concise record the facts or circumstances known to the circuit judge in consequence of which his conclusion was reached that plaintiff's answers were evasive and that he had deliberately given false testimony. The circuit judge refused to embody in the concise statement these portions of the proceedings had before him. Plaintiff petitioned this court for a writ of mandamus, the prayer of his petition being as follows: ‘Wherefore your petitioner and appellant, John P. McCarthy, respectfully prays that a writ of mandamus issue, directing the Honorable Homer Ferguson to disclose and supply the questions and answers of petitioner and appellant which were adjudged and determined to be contumacious, in that they were evasive and/or false, and such facts or knowledge upon which he relied or took judicial notice in making such determination.'

An order to show cause was issued. In his return to this order the circuit judge primarily based his refusal to make the record sought by plaintiff on the ground that by statutory provision he was prohibited from so doing, and that such was the rule at common law. The pertinent portion of the statute reads: ‘And in respect of communicating or divulging any statement made by such witnesses during the course of such inquiry, the justice, judge, prosecuting attorney and other person or persons who may, at the discretion of such justice, be admitted to such inquiry, shall be governed by the previsions of law relative to grand jurors.’ Comp.Laws 1929, § 17218; Stat.Ann. 28.944.

In the return of the circuit judge to the order to show cause the following appears: ‘At common law it was a criminal offense for a grand juror to disclose the evidence adduced before the grand jury. Matters penetrating the secrecy of the grand jury room will not be allowed. It is the policy of the law that grand jury proceedings be secret, and that the minutes thereof be not revealed. Commonwealth v. Harris, 231 Mass. 584 ;State v. Branch, 68 N.C. 186 ;People v. Steinhardt ,93 N.Y.S. 1026;Coblentz v. State, 164 Md. 558 [166 A. 45, 88 A.L.R. 886];Hitzelberger v. State ,196 A. 288;State v. Perry, 149 La. [1065], 1066 ;In re Martin ,11 N.Y.S.2d 607.'

The circuit judge in his return further calls attention to McComb v. Lansing City Council, 264 Mich. 609, 614, 250 N.W. 326, 327, where we said: ‘A hearing before a grand jury usually is secret’. The return of the circuit judge also discloses that he was ready and willing to certify to what he considered a proper concise statement incident to the application for leave to appeal; but for the reasons above noted and the further reason that to disclose the testimony requestedby plaintiff would seriously impair the results sought to be obtained in the inquisitorial proceedings being conducted by the circuit judge, he declined to embody in the concise statement the testimony which plaintiff seeks to have therein.

For reasons hereinafter indicated we are of the opinion that decision in this mandamus proceeding does not require an adjudication of whether one, who timely seeks to review a sentence imposed in consequence of his having been found guilty of contempt of court, is entitled to have embodied in the concise statement incident to his application for leave to appeal testimony of the character sought by plaintiff in the instant case. As noted above plaintiff served the jail sentence imposed. Prior to the expiration of the term of commitment, he made no application for leave to appeal, for stay of proceedings, for the fixing of a bond for his release from custody, nor in any other manner sought a stay or a review of the sentence imposed upon him. Having served his sentence, the whole contempt proceeding was at an end. It was not until several days thereafter that plaintiff sought by petition leave to appeal. In his return to the order to show cause in this mandamus proceeding, it is pointed out by the circuit judge that in view of the facts and circumstances above noted the contempt proceeding which plaintiff seeks to review is wholly moot and that our writ of mandamus should not issue to compel the settling of a concise statement incident to plaintiff's application for leave to appeal and review a moot question.

To review a moot question...