People v. Lauder

• Decision Date: 01 August 1890
• Citation: 46 N.W. 956,82 Mich. 109
• Court: Michigan Supreme Court
• Parties: PEOPLE v. LAUDER.

46 N.W. 956

82 Mich. 109

PEOPLE v. LAUDER.

Supreme Court of Michigan

August 1, 1890

Certiorari to circuit court, Wayne county.

Fred H. Warren, (Fred A. Baker of counsel,) for appellant.

Allan H. Frazer and Otto Kirchner, for the People.

CHAMPLIN C.J.

This case comes here upon writ of certiorari issued by this court to the circuit court for the county of Wayne. Lauder was indicted by a grand jury of Wayne county. To this indictment he interposed two pleas in abatement. The first plea relates to composition and legality of the grand jury which found the indictment. The second relates to what is claimed as a violation of the constitutional right of Lauder in being summoned before the grand jury, and being examined by them upon the subject-matter for which he was indicted. The first plea in abatement we hold to be bad, for reasons stated in the opinion of Mr. Justice MORSE, post, 961. The second plea in abatement we think should be overruled, for the reason that it is uncertain and insufficient. The following is the second plea:

"And the said James B. Lauder, in his own proper person, for his second plea in abatement to the said indictment, says that while the said indictment and the charges of bribery therein contained were pending before the grand jury, and they were inquiring into said charges, and considering the question whether they would find the said indictment to be a true bill, and present the same to the court, and after Peter Hirth, Charles G. Eggeman, Charles Flowers, Augustus C. Kronberg, and William Uthes, who are all the witnesses for the people, whose names are indorsed upon said indictment, had been fully examined, and had given their testimony before the said grand jury, to-wit, on the 18th day of September, 1889, a subp na was issued out of said court, under the hand of Allan H. Frazer, an assistant prosecuting attorney for said county of Wayne, commanding the said defendant, James B. Lauder, to appear before the said grand jury as a witness on, to-wit, the 18th day of September, 1889, at 10 o'clock in the forenoon; that said subp na was served by the sheriff of the county of Wayne upon the said defendant, James B. Lauder, to-wit, on the 18th day of September, 1889, by exhibiting to him the original, and informing him of the contents thereof, and delivering to him a copy of said subp na; that said defendant, James B. Lauder, being wholly ignorant of the fact that said indictment and charges of bribery against him were pending before and were being inquired into by said grand jury, without consulting counsel, or being advised in the premises, appeared before said grand jury in obedience to said subp na on the said 18th day of September, 1889, and while under legal restraint before said grand jury he was required and compelled to take his oath as a witness before said grand jury, and under such oath he was required and compelled to give his testimony in the matter of the charges of bribery set forth in said indictment, and so pending against him before said grand jury as aforesaid; that he was interrogated fully as to said charges of bribery, and was questioned as to each and every detail and circumstance of the same, and to all of which interrogatories and questions he was then and there, without having the aid and advice of counsel, required and compelled to make, and did make, answer; that in so testifying, and because the said defendant did not have the assistance of counsel to bring out all the facts and circumstances of the case, and while under legal restraint as aforesaid, he, the said defendant, in response to the questions and interrogatories put to him, did testify to facts material and necessary to prove the truth of said charges of bribery, and to sustain and establish the said indictment as a true bill; that upon the testimony of the said witnesses for the people, and the testimony of said defendant so given before the said grand jury as aforesaid, the said grand jury did find the said indictment to be a true bill, and did, to-wit, on the 24th day of September, 1889, present the said indictment to said court; and this the said defendant is ready to verify, and he prays judgment of said indictment, and that the same may be quashed, etc. JAMES B. LAUDER, Defendant. FRED. H. WARREN, Attorney for Defendant. F. A. BAKER, of Counsel.

"'State of Michigan, county of Wayne-ss. James B. Lauder, the above-named defendant, being duly sworn, upon his oath deposes and says that he has heard read the above and foregoing first and second pleas in abatement, by him subscribed, and knows the contents thereof, and that both of said pleas are true in substance and fact. JAMES B. LAUDER. Subscribed and sworn to before me this 13th day of January, A. D. 1890. A. G. KRONBERG, Notary Public, Wayne County, Michigan."'

By this plea in abatement two causes are assigned as reasons why the indictment should be abated: First because of the reception by the grand jury of incompetent testimony; and, second, because his constitutional privilege was invaded in compelling him to testify against himself. In determining the sufficiency of this plea it should be borne in mind that the finding of the grand jury was not a trial upon the merits, but a presentment of charges, or mere accusation upon which a trial may be had. The plea does not assail the form or the substance of the indictment, but sets up the misconduct of the grand jury in proceedings before them, anterior to the finding of the indictment. It is a dilatory plea, which in the unbroken practice of the courts is for that reason looked upon with disfavor, and has always been subjected to technical rules. When such dilatory pleas are resorted to, we must apply to them those long-established canons of construction to test their sufficiency for the purpose of abating the prosecution, which the experience of courts through a long series of years has found necessary to protect suitors from unnecessary delay and expense. Those rules are necessarily strict and technical, and a party interposing such dilatory plea invites the most rigid scrutiny of its sufficiency under the established rules of pleading. It is laid down in works on pleading, and supported by abundance of authority, that a plea in abatement must be certain to every intent; and the greatest accuracy and precision are required in framing it. 1 Chit. Pl. 445; Gould, Pl. c. 3,�� 57, 58; 1 Bish. Crim. Proc. � 324; Dolan v. People, 64 N.Y. 492; O'Connell v. Reg., 11 Clark & F. 155; State v. Bryant, 10 Yerg. 527; State v. Newer, 7 Blackf. 307; State v. Brooks, 9 Ala. 1; Hardin v. State, 22 Ind. 347; Findley v. People, 1 Mich. 234; Belden v. Laing, 8 Mich. 500. The second plea in abatement is bad for uncertainty and insufficiency. It is uncertain whether it is based upon the reception of incompetent testimony, or upon the point that the prisoner's constitutional rights were violated in compelling him to give testimony against himself. If based upon the reception of incompetent testimony then the plea is insufficient, in that it does not state that some one material fact, and what material fact, was testified to by himself, without which testimony an indictment could not have been found, which fact was not testified to or established by the testimony of the other witnesses examined. From all that is alleged in such plea, it may still be true that the testimony of the other witnesses named was sufficient evidence of the facts charged to support the indictment, and to justify the jury in finding a true bill. In a plea in abatement nothing must be left to inference to support the plea. On the contrary, all intendments are to be taken against the pleader. Hence we must assume that the testimony of the other witnesses named in the plea and indorsed upon the information was the testimony upon which the grand jury acted in finding a true bill against the respondent, and that it was sufficient and competent testimony for that purpose. The point whether the indictment was bad because the grand jury admitted incompetent evidence was before the court of appeals of the state of New York in Hope v. People, 83 N.Y. 418. Mr. Justice RAPALLO said: "The demurrer to the special plea interposed on behalf of the prisoner was properly sustained. The substance of the plea is that the grand jury by whom the indictment was found did not proceed in accordance with law, but considered, regarded, and examined improper, incompetent, and irrelevant matters; and the specification is that they had before them for their consideration, and as a part of their method of inquiry, and did consider, certain ex parte affidavits taken before a police justice in an examination had before him as such, together with the examination of the prisoner taken in accordance with the statute. We find no authority for the position that the sufficiency of the evidence upon which an indictment is found by the grand jury is a question which can be raised by plea to the indictment, or that the reception of incompetent or irrelevant evidence by the grand jury can be pleaded. People v. Hulbut, 4 Denio, 136, is to the contrary, and no case has been cited in support of the plea. * * * Moreover, it does not state facts which would be sufficient, even on a motion to require the court to quash the indictment. It does not aver or show that the ex parte affidavits were the only evidence before the grand jury, nor that the witnesses by whom they were made were not also personally examined, or that the indictment was not based upon sufficient competent evidence; nor does it contain the very essential averment that any fact material to the case of the prosecution was established by such ex parte affidavits; nor does it show that the prisoner was in any manner...