People v. Salsbury

• Citation: 134 Mich. 537,96 N.W. 936
• Court: Supreme Court of Michigan
• Decision Date: 27 October 1903
• Parties: PEOPLE v. SALSBURY.

96 N.W. 936

134 Mich. 537

PEOPLE v. SALSBURY.

Supreme Court of Michigan

October 27, 1903

Exceptions from Superior Court of Grand Rapids; Alfred Wolcott, Judge.

Lant K Salsbury was convicted of bribery, and brings exceptions. Affirmed.

William B. Brown, Pros. Atty., and Charles E Ward, Asst. Pros. Atty. (Wesley W. Hyde, of counsel), for the People.

Grove &amp McDonald (Allen B. Morse and William F. McKnight, of counsel), for defendant.

HOOKER C.J.

The defendant was city attorney of the city of Grand Rapids, and was convicted of the offense of receiving a bribe from parties desirous of erecting a plant to supply the city with water, 'under an agreement that he should give his opinion and judgment in favor of the city entering into a contract with some person, firm, or corporation, under which contract said city should pay for water, to be conveyed from Lake Michigan.' The record is voluminous, and the assignments of error are many. We will not, therefore attempt a general preliminary statement of fact that shall cover all questions raised, thinking it more convenient to state necessary facts in connection with the respective questions discussed. These questions will be taken up in the following order: (1) The validity of the indictment; (2) the effect of the proceedings relating to the alleged attempt to bribe a witness during the trial; (3) failure to prove the charge; (4) error alleged upon the charge; (5) questions arising upon rulings relating to the introduction of evidence, and the remarks of counsel.

1. The Indictment.

(a) Contrary to the usual practice, which is to proceed by information, these proceedings rest upon an indictment found by a grand jury sitting in the circuit court for the county of Kent. The law provides for two judges in this circuit. It does not provide for two separate and distinct courts. It has one clerk, and all cases within the jurisdiction of the circuit court are commenced and tried there, except as the superior court jurisdiction affects such question. The law provides for a presiding judge, and that one judge may constitute a quorum. This grand jury was drawn under an order made when both judges were sitting, and counsel's first contention is that the law gives no authority for two judges to act, and, although it contemplates that each judge shall have full authority to perform any official act, that he cannot share the responsibility with his associate. See Comp. Laws, � 285. It is said that the presiding judge might have determined the question of a necessity for a grand jury, or might have referred the matter to his associate.

(b) Before the return of the venire, Judge Wolcott, who was sitting at the time, excused two jurors--one because he was a nonresident of the county, and one for the reason that he had not been served personally with the venire. He then directed the sheriff to fill the panel from the bystanders by summoning two men having the requisite qualifications. The sheriff called two men from among the bystanders, and they were sworn, without being examined as to their qualifications, and acted as members of such jury. Comp. Laws, � 11,875, provides: 'Any court in which a grand jury may be sitting, may discharge any of the grand jurors for intoxication or other gross misconduct; and in case of such discharge, or in case of the sickness, death or non-attendance of any grant juror, after he shall have been sworn, the court may cause another juror to be summoned from among the bystanders, or inhabitants of the city, township or village, having the qualifications required by law, and to be sworn and serve in his stead.' Section 342 is as follows: 'In case the officers whose duty it is under this act to make and return lists of petit jurors, fail to meet, make or return said lists at the time and in the manner prescribed by this act; or in case said lists shall become exhausted; or in case said lists shall for any reason be declared illegal before the year for which they were made shall have expired, it shall be lawful for the circuit judge of any circuit court in this state to direct said officers to forthwith meet, make and return to the county clerk new lists of jurors for the remainder of the year, from which lists so made and returned jurors shall be drawn for the balance of the year. And whenever, for any cause, grand or petit jurors shall not have been drawn and summoned to attend any circuit court, or a sufficient number of qualified jurors shall fail to appear, such court may, in its discretion, order a sufficient number of grand or petit jurors, or both, to be forthwith drawn and summoned to attend said court: provided, that in drawing jurors under this section. the court may for the purpose of obtaining a jury or talesman near county seat, direct from which township or supervisor districts such jurors shall be drawn.' Counsel insist that the action of the court was erroneous, and that these two men were summoned without authority of law. They say that the only lawful method was to have drawn from the list, and that, in any event, the persons drawn should have had the qualifications prescribed by law, which counsel sought to show, under their plea, these had not. These questions were raised by pleas in which counsel set up the facts relied upon. There were seven of these pleas, the first of which questioned the validity of the order impaneling the grand jury for the reason above stated. The second related to the filling of the panel as above described. The third charged that one of said talesmen was summoned collusively at the instigation of the prosecuting attorney. The fourth asserted that the prosecuting attorney or his assistant unlawfully consulted with and advised members of the jury. The fifth stated that the assistant prosecuting attorney appeared before and made an agreement to the jury after the evidence was taken, and participated in the deliberations, contrary to law (see section 11,890). The sixth alleged that the defendant was not held to answer an indictment on the presentment of a grand jury lawfully drawn, and that the jury conducted its proceedings and deliberations in violation of article 5 of the amendments to the federal Constitution. This appears to have been based upon all of the alleged irregularities before mentioned, as well as other alleged misconduct of the jurors and prosecuting officers. The seventh plea alleged collusion between the prosecuting officers and one of the jurors. Issue was joined and tried upon the third and seventh pleas, and a verdict directed for the people. Counsel claim the question should not have been taken from the jury. Demurrers to the other pleas were sustained, and this is said to be error.

A full and complete answer to all of these attacks is found in the statute, sections 11,881, 11,882, which provide:

'(11,881.) A person held to answer to any criminal charge, may object to the competency of any one summoned to serve as a grand juror, on the ground that he is the prosecutor or complainant upon any charge against such person; and if such objection be established, the person so summoned shall be set aside.

'(11,882). No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other case than that specified in the preceding section.'

The indictment was found by a tribunal having the semblance and exercising the functions of a grand jury, in a court of general jurisdiction. It was selected and organized under the forms of law, and was a de facto grand jury, acting under the control and direction of such court. The questions raised go to the presentment merely, and, as was held in People v. Riegel, 120 Mich. 78, 78 N.W. 1017, and cases there cited, the statute precludes the successful raising of these questions. An attempt is made to distinguish this case from others, especially the Riegel Case; and it is urged that 'it was not meant to be said by the court that out statute prohibits a respondent from raising these objections, and certain language is quoted from the opinion in that case, which is supposed to indicate that one is not without remedy for such irregularities.' Much was said in addition to the quotations given by counsel, and, as will be seen by a perusal of what follows on pages 87, 88 and 89, 120 Mich., and pages 1020, 1021, 78 N. W., it was the opinion of this court that relief can only be had by an appeal to the trial court, whose determination is not subject to review. See State v. Carroll, 38 Conn. 449, 19 Am. Rep. 409; State v. Noyes, 87 Wis. 344, 58 N.W. 386, 27 L. R. A. 776, 41 Am. St. Rep. 45.

We are of the opinion that the questions relating to the conduct of the prosecutor, before the grand jury, and the rulings upon evidence taken or offered upon the hearing of the third and seventh pleas, and the charge thereon, are covered by this ruling, and it is therefore unnecessary to review the court's action in the premises. Counsel say that these are not 'mere irregularities,' but they fail to show that they have anything to do with the jurisdiction of the jury to consider and find indictments. We are aware that in some states irregularities in the proceedings of grand juries are reviewable upon error. That was stated in the Riegel Case. Our statute is a complete answer to all such claims, as there said.

(c) The next question relating to the indictment involves the sufficiency of the charge. The first count is based upon the statute (Comp. Laws, � 11,312), which provides: 'Every executive, legislative or judicial officer, who shall corruptly accept any gift or gratuity, or any promise to make any gift, or to do any act beneficial to such officer, under an agreement, or with an understanding that his vote, opinion or...