People ex rel. Lemon v. Supreme Court of State York

• Decision Date: 29 March 1927
• Citation: 156 N.E. 84,245 N.Y. 24
• Parties: PEOPLE ex rel. LEMON, Dist. Atty., v. SUPREME COURT OF STATE OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 24

156 N.E. 84

PEOPLE ex rel. LEMON, Dist. Atty.,

v.SUPREME COURT OF STATE OF NEW YORK et al.

Court of Appeals of New York.

March 29, 1927.

Prohibition by the People, ex rel. Elmer H. Lemon, District Attorney of Orange County, against the Supreme Court of the State of New York, Hon. A. H. F. Seeger, Judge, and others. The alternative order was made absolute (219 App. Div. 725, 219 N. Y. S. 892), and defendants appeal.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Henry Hirschberg, of Newburgh, for appellants.

Elmer H. Lemon, District Atty. of Orange County, of Newburgh, for respondent.

CARDOZO, C. J.

The grand jury of Orange county indicted Lucy Earley on October 7, 1926, for the murder of her husband by poisoning his food. The effect of this indictment was to supersede an information, filed by the district attorney with the recorder of the city of Newburgh, charging the same crime. The minutes of the grand jury have been inspected by the defendant under an order of the court. One Wegley, an accomplice, gave testimony that the defendant had asked him for arsenic to enable her to kill her husband, and had received the poison from his hands. Physicians who had examined the contents of the stomach gave testimony as to the quantity of arsenic disclosed by the analysis. Other witnesses gave testimony directed to the cause of death and to the methods and agencies through which the poison was administered. A transcript of all this testimony was given to the defendant and is embodied in the record. The defendant was not satisfied with this disclosure of the case against her. She deposed that other evidences not submitted to the grand jury had been gathered by the district attorney and she prayed for an order that they be submitted to her scrutiny. The petition was not granted in all its length and breadth. An order was made, however, that the district attorney file in the office of the clerk of Orange county--

‘(1) Each and every written statement, affidavit, letter, memorandum and confession made by William Wegley either directly or indirectly to said district attorney or any of his assistants, subordinates or employees prior to the filing by said district attorney of said information in the Recorder's Court of the city of Newburgh; (2) the complete written statements and memoranda of the post mortem examination of said Daniel F. Earley referred to in said information, and all reports made to said district attorney directly or indirectly or to any of his employees, assistants, or agents in connection with this investigation by or on behalf of Dr. Alexander O. Gettler, Dr. Otto H. Schultze, Dr. James C. Donovan, and John J. Perrott; (3) all reports and information made directly or indirectly to said district attorney with reference to any chemical analysis or examination of the organs or parts of the body of Daniel F. Earley or of any fluids or substances prior to the filing in Police Court of the said information by said district attorney.’

The order further provided that:

‘Said district attorney be and he hereby is precluded from giving proof on the trial herein of any facts referred to in any of said documents which he is hereby directed to file and does not file.’

The entry of that order was followed by a petition for an order of prohibition. Civil Practice Act, § 1341. The Appellate Division granted the petition and restrained all proceedings for ‘the enforcement and execution’ of the order for the filing of the documents. The order of prohibition is now before us for review.

[1] The common-law courts, till aided by statute, professed a lack of power, even in civil causes, to order the inspection of documents in advance of a trial, unless indeed the document to be examined was the very subject of the cause. Denslow v. Fowler, 2 Cow. 593, note; McQuigan v. Delaware, L. & W. R. Co., 129 N. Y. 50, 55,29 N. E. 235, 14 L. R. A. 466, 26 Am. St. Rep. 507; Carpenter v. Winn, 221 U. S. 533, 31 S. Ct. 683, 55 L. Ed. 842. To give relief from these defects, the remedy of discovery and inspection was framed by courts of equity. 2 Story, Eq. Juris, § 1484. The remedy as framed involveda separate, if ancillary, suit, and in that respect as well as others was awkward and unwieldy. Statutes, long in force in this state, have made a like remedy available in the primary cause itself by motion or petition. This borrowing of equitable remedies began with the Revised Statutes of 1830 (2 R. S. 199, pt. 3, c. 1, tit. 3, §§ 21, 22; King v. Leighton, 58 N. Y. 383, 384, 385). A party to a suit in the Supreme Court might be compelled ‘to produce and discover books, papers and documents in his possession or power, relating to the merits of any such suit, or of any defense therein.’ Section 21. The successive Codes of Procedure and the Civil Practice Act, extending the same remedy to other courts of record, have carried it down, unchanged in substance, to our day. Code Civ. Proc. § 342; Code Civ. Proc. § 803; Civil Practice Act, § 324; also Laws 1841, c. 38. So familiar in civil causes has the remedy become that many who invoke it have forgotten, in all likelihood, its origin in history as the creature of a statute. Yet even in civil causes, with all the statutory reinforcement of the sparse and narrow remedy, itself ‘in the nature of a usurpation’ (McQuigan v. Delaware, L. & W. R. Co., supra, at page 55, 29 N. E. 236), that had grown up at common law, the jurisdiction has its limits (Civil Practice Act, § 324). Documents are not subject to inspection for the mere reason that they will be useful in supplying a clew whereby evidence can be gathered. Documents to be subject to inspection must be evidence themselves. Falco v. New York, N. H. & H. R. Co., 161 App. Div. 735, 737, 146 N. Y. S. 1024;Woods v. Figaniere, 25 How. Prac. 522, 526, 527; Knight v. Marquess of Waterford, 2 Y. & C. Ex. 22, 36. No precedent can be found even in civil causes for compelling disclosure, in advance of the trial, of the office notes or memoranda prepared by an attorney after consultation with his witnesses, and summarizing his understanding of the testimony that is likely or expected.

When we turn to criminal causes, we find a jurisdiction that is even more restricted. There are expressions of opinion that deny the jurisdiction altogether. There are others that seem to limit the disclosure to documents that are the subject of the charge, thus assimilating the practice to the jurisdiction in civil causes that was known at common law. Others concede or assume a broader jurisdiction, one adequate to prevent a failure of justice, yet narrower than discovery in equity or under the statutory substitute. Nowhere has there been a suggestion that the jurisdiction can properly be extended to notes or memoranda in the possession of the prosecutor, but inadmissible as evidence either for prosecution or for defense.

The point of departure in any discussion of the subject is the decision of the King's Bench in Rex v. Holland, 4 Durn. & E. 691, decided in 1792. An information had been filed by the Attorney General against an officer of the East India Company upon charges of peculation and corruption. A board of inquiry had examined witnesses in India and had made a report upon the matter which was transmitted to England. The defendant applied for an order that he be permitted to examine this report. The court refused the order upon the ground of want of power. ‘I am extremely clear,’ said Lord Kenyon, C. J., ‘that we ought not to grant this application. There is no principle or precedent to warrant it. Nor was such a motion as the present ever made; and if we were to grant it, it would subvert the whole system of criminal law.’ Ashurst, Buller, and Grose, JJ., spoke to the same effect. ‘The practice on common-law indictments, and on informations on particular statutes, shews it to be clear that this defendant is not entitled to inspect the evidence, on which the prosecution is founded, till the hour of trial.’ Per Buller, J.

The report to be examined in that case would have been inadmissible as evidence for prosecution or defense. Later cases exhibit a more conciliatory tendency where the document is one that may be received as an exhibit. Discovery will be ordered if the exhibit is the basis of the chargr, as, e. g., where the indictment is for sending a threatening letter. Rex v. Harrie, 6 Car. & P. 105. Cf. People v. Bellows, 1 How. Prac. (N. S.) 149. There is some authority for the view that it will be ordered in other cases where the thing to be inspected is admissible in evidence and a failure of justice may result from its suppression. Thus, in Regina v. Spry and Dore, 3 Cox, C. C. 221, an inspection of the contents of the stomach was permitted in a prosecution for homicide. In People v. Gerold, 265 Ill. 448, 107 N. E. 165, Ann. Cas. 1916A, 636, a county treasurer charged with defalcation was held to have the right to inspect official books and documents. In Commonwealth v. Jordan, 207 Mass. 259, 93 N. E. 809, a prosecution for murder, there was recognition of the power to permit an inspection of portions of the body taken at the time of the autopsy by the medical examiner and also weapons and other exhibits in the possession of the public prosecutor, though the court refused the order in the exercise of discretion. Other cases point the same way with more or less distinctness. See, e. g., Newton v. State, 21 Fla. 53;Daly v. Dimock, 55 Conn. 579, 12 A. 405;State v. Howland, 100 Kan. 181, 163 P. 1071. The power frequently asserted to compel the return of property illegally impounded is based upon the assumption of a supervisory jurisdiction over the acts of public prosecutors.Weeks v. United States, 232 U. S. 383, 398, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177;People v. Chiagles, 237 N. Y. 193, 199, 142 N. E. 583, 32 A. L. R. 676. Cf. Kenny, Outlines of Criminal Law, 477, citing ...