State ex inf. Dalton v. Moody
| Citation | 325 S.W.2d 21 |
| Decision Date | 08 June 1959 |
| Docket Number | No. 44717,44717 |
| Parties | STATE of Missouri ex inf. John M. DALTON, Attorney General of Missouri, Relator, v. Garner L. MOODY, Prosecuting Attorney of Wright County, Missouri, Respondent. |
| Court | United States State Supreme Court of Missouri |
John M. Dalton, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for relator.
Wayne T. Walker, Springfield, Claude T. Wood, Richland, Ira H. Lohman, Jefferson City, for respondent.
This is an information in the nature of quo warranto brought by the Attorney General in the original jurisdiction of this court to oust respondent from the office of Prosecuting Attorney of Wright County. The proceeding grows out of a grand jury investigation held at the June, 1954, term of the circuit court of that county. Hon. Warren D. Welliver of Columbia was appointed Special Commissioner to take the evidence and report same to the court, together with his findings of fact and conclusions of law, and this has been done. The record returned by him (exclusive of his comprehensive 19-page report, the original exhibits, and his findings of fact and conclusions of law) consists of three bound volumes totaling 830 pages. His ultimate recommendation was that defendant 'be discharged, that the order to show cause be quashed, and that the costs be taxed against relator.'
On June 8, 1954, under the authority of Section 27.030 RSMo 1949, V.A.M.S., the Attorney General was directed by the then Governor to investigate complaints reaching him, the Governor, of alleged law violations in Wright County, and the alleged failure of law enforcement officials of that county to enforce the laws; to investigate such other complaints of law violations in Wright County as might come to relator's attention, and to present the same to the grand jury then about to be convened in Wright County; and 'to render such assistance to the Prosecuting Attorney of such county as such official may see fit to request of you, or to render such assistance in the trial court as may be necessary or required in the premises.' Pursuant to such directive, the relator designated two Assistant Attorneys General (one of whom, Mr. Julian L. O'Malley, bore the entire brunt of the assignment) to act for and in his behalf in such matter. Upon communicating that fact to the judge of the Wright Circuit Court, the latter caused to be entered of record an order authorizing such Assistant Attorneys General to aid respondent 'in the discharge of his respective duties before the Grand Jury heretofore convened on June 23, 1954, and either or both of said Assistant Attorneys General are hereby authorized to assist in investigation and presentation of evidence before said Grand Jury and are further authorized to sign any indictment returned by said Grand Jury or to file substitute informations for such returned indictments along with the Prosecuting Attorney of Wright County, or to so act in the event the said Prosecuting Attorney becomes disqualified or refuses to carry out the duties of his office.'
The grand jury convened on August 9, 1954, and concluded its hearings and deliberations on September 30, 1954. It returned only two indictments (both on August 17), one of which, No. 6494, was against M. J. Huffman, Frank Little and E. L. Colton; and the other, No. 6495, was against Chester Coday. These indictments charged the defendants with having unlawful and felonious possession, on the night of August 5, 1952 (the date of the state-wide primary election) of a sack containing ballots which had been voted in Hart Township in said primary election, and in removing said ballots from the office of the county clerk (their lawful depository) for the unlawful and felonious purpose of having the same destroyed. The indictments are counterparts of each other, except for the transposing of the names of the defendants.
Thereafter, on September 18, 1954, the respondent filed an information in the circuit court against Howard Coday, Chester's nephew (after a preliminary hearing based on the prosecutor's complaint filed August 17, 1954, at which preliminary Howard was bound over), charging him with precisely the same offense as that charged in the two indictments. Howard Coday had testified before the grand jury, and his name was endorsed on both indictments as a state's witness. Chester Coday (who was indicted) had likewise testified before the grand jury, and his name was endorsed as a state's witness on the Huffman-Little-Colton indictment.
On October 26, 1954, the indictments in the two cases numbered 6494 and 6495 were nol-prossed by respondent (as was the information in No. 6499 against Howard Coday), and this without previous notice to, or knowledge of relator or his assistant. Such nol-prossing of the indictments by respondent constitutes the principal charge of misconduct against him. 1 The other charges have to do with respondent's attitude and conduct before the grand jury, and with his having instituted the case against Howard Coday, to the embarrassment and hindrance of the state in the prosecution of the two indictments, all as hereinafter more specifically detailed.
It was developed at a pre-trial conference that relator's case was dependent, in the first instance, upon evidence whereby the secrecy of the grand jury would be invaded, to the admissibility of which evidence respondent objected. On that pivotal question the Special Commissioner ruled that relator could call either grand jurors or grand jury witnesses to testify, subject to ruling on the relevancy or competency of the questions propounded to them at the time they were called. In consequence of that ruling, and in order to save costs and expedite the hearing (but without waiving respondent's fundamental objection above noted), it was stipulated that 'any portion of the transcript of the proceedings before the grand jury may be read in evidence on behalf of relator, or on behalf of respondent, in lieu of actual physical production of the witness or witnesses * * * as to all the proceedings that transpired in the grand jury room,' subject to objections thereto on the ground of relevancy and competency.
The state's evidence is comprised in its entirety of portions of the transcript of the grand jury proceedings (testimony of sundry witnesses, discussions in which respondent either participated or was present, and other proceedings), together with certain documentary evidence such as the affidavits of Chester and Howard Coday, certified copies of the record and court proceedings in relation to the foregoing indictments and information and the dismissals thereof. Respondent has kept alive and urges on the present submission his objection to the admissibility of the former. If the Special Commissioner's ruling thereon be reversed or not followed, and such evidence excluded, then, as forecast above, the relator's case would necessarily fall, and so we examine the question of the admissibility of the grand jury proceedings as the issue of first importance.
'It has long been the policy of the law, in furtherance of justice, that the investigations and deliberations of a grand jury should be conducted in secret, and that for most intents and purposes, all its proceedings should be legally sealed against divulgence.' 24 Am.Jur., Grand Jury, Sec. 47. The rule is based on common law and statutory authority. The oath of grand jurors as prescribed by Sec. 540.080 () is that, among other things, 'the counsel of your state, your fellows and your own, you shall truly keep secret.'
Other statutes declare exceptions to the rule of secrecy:
Sec. 540.320. 'No grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto; * * *.'
Sec. 540.300. 'Members of the grand jury may be required by any court to testify whether the testimony of a witness examined before such jury is consistent with or different from the evidence given by such witness before such court; and they may also be required to disclose the testimony given before them by any person, upon a complaint against such person for perjury, or upon his trial for such offense.'
Sec. 540.110 prescribes the oath for grand jury witnesses (in addition to the usual oath), as follows:
'You do further solemnly swear, or affirm, that you will not after your examination here, directly or indirectly, divulge or make known to any person or persons the fact that this grand jury has or has had under consideration the matters concerning which you shall be examined, or any other fact or thing which may come to your knowledge while before this body, or concerning which you shall here testify, unless lawfully required to testify in relation thereto.'
The statutes provide criminal penalties for disclosure by either grand jurors (Sec. 540.320) or witnesses (Sec. 540.120). The court must instruct the grand jurors on their duties not to make disclosures (Sec. 540.330), but they cannot be compelled to disclose their votes nor what opinions were expressed by any juror in relation to any question before them (Sec. 540.310).
We have in this state a very considerable number of cases involving the rule of grand jury secrecy, and the construction and application of these statutes, among which the Special Commissioner's report discusses or refers to the following: State v. Brewer, 8 Mo. 373; Tindle v. Nichols, 20 Mo. 326; State v. Baker, 20 Mo. 338; Beam v. Link, 27 Mo. 261; State v. Grady, 12 Mo.App., 361, affirmed 84 Mo. 220; State v. Thomas, 99 Mo. 235, 12 S.W. 643; State v. Johnson, 115 Mo. 480, 22 S.W. 463; State v. Cole, 145 Mo. 672, 47 S.W. 895; State v. Faulkner, 185 Mo. 673, 84 S.W. 967; Ex parte Welborn, 237 Mo. 297, 141 S.W. 31; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74; State v. Pierson, 337 Mo. 475, 85 S.W.2d 48; State...
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