State ex rel. Clagett v. James, 12

Citation327 S.W.2d 278
Decision Date13 July 1959
Docket NumberNo. 12,47316,Nos. 47315,12,s. 47315
PartiesSTATE of Missouri ex rel. J. R. CLAGETT, Special Prosecuting Attorney of Jackson County, Missouri, Petitioner, v. Honorable John R. JAMES, Judge of Divisionof the Sixteenth Judicial Circuit of Missouri, Respondent (two cases).
CourtUnited States State Supreme Court of Missouri

J. R. Clagett, Sp. Pros. Atty. of Jackson County, Kansas City, Fred L. Howard, Asst. Atty. Gen., Jefferson City, for petitioner.

Arthur C. Popham, Kansas City, Walter A. Raymond, Kansas City, for respondent.

HYDE, Judge.

Prohibition to prevent the enforcement of orders of respondent authorizing Earl H. Schrader, Jr. (hereinafter referred to as defendant), to inspect and copy the minutes of the Grand Jury of Jackson County which found two indictments against him. Separate writs in each case have been consolidated.

Defendant, an Assistant Prosecuting Attorney of Jackson County, was indicted on a charge of soliciting a bribe of $2,500 for the purpose of secreting information concerning an alleged abortion and preventing any investigation or prosecution therefor; and was also indicted on a charge of perjury in testifying before the Grand Jury concerning the solicitation of the $2,500. In each case, defendant filed a motion for an order granting inspection of the minutes of the Grand Jury, stating the names of the witnesses endorsed on the indictments and saying that the inspection requested may obviate the necessity of taking depositions of these same witnesses. In each motion it was also alleged:

'2. Defendant has reason to believe and alleges that unauthorized persons were unlawfully permitted to be present by the Grand Jury while said witnesses were testifying and when the Grand Jurors expressed their opinions with respect to the inquiry by said Jury concerning this defendant and the alleged offense.

'3. Defendant has reason to believe and alleges that the evidence on which the Grand Jury returned the indictment against him herein was insufficient upon which to base such indictment and was illegal.

'4. Defendant desires, and is entitled, to inspect the minutes of the Grand Jury with respect to the testimony given by all of the above witnesses and the proceedings occurring during their examinations, in order to lay the basis for his contemplated motion to dismiss the indictment upon the ground that the evidence before the Grand jury on which it was based was insufficient or illegal.'

The order in each case stated: 'It is hereby ordered that said minutes insofar as they relate to the testimony of * * * (names of witnesses stated) * * * and the defendant, and all proceedings which transpired during the course of their presence in the Grand Jury Room, or in connection with their testimony before the grand jury, be exhibited to defendant and his counsel, and that they be permitted to copy the same if they so desire.' The parties agree that it was intended by these motions and orders that inspection be made of both the reporter's transcript of the evidence (Secs. 56.190 and 540.105) and clerk's minutes. (Sec. 540.100, statutory references are to RSMo and V.A.M.S. unless otherwise noted.)

Relator contends these orders violate the secrecy imposed by law on grand jury proceedings and call for production and inspection of matters not admissible in evidence; and therefore claims they exceed the jurisdiction of respondent. It should be noted that there is a difference between the secrecy requirements for witnesses testifying before the grand jury and those for grand jurors. Mannon v. Frick, 365 Mo. 1203, 295 S.W.2d 158, 163; Wigmore on Evidence, Secs. 2362-2363; 4 Wharton's Criminal Law and Procedure 495, Sec. 1721; 24 Am.Jur. 867, Secs. 49-50. The oath of a witness (Sec. 540.110) is 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.' Sec. 540.120 makes a violation of this oath a misdemeanor. There is, of course, good reason for imposing this secrecy upon witnesses at all times concerning all matters upon which no action is taken by the grand jury (see 4 Warton's Criminal Law and Procedure 489, Sec. 1719; 24 Am.Jur. 865, Sec. 47) and also concerning cases, in which there are indictments, prior to the arrest of the defendant. See annotation, 127 A.L.R. 283. However, 'when an indictment is found by the grand jury, the names of all material witnesses must be endorsed upon the indictment' (Sec. 545.070). Therefore, when the indictment is made public (Secs. 545.080, 545.090), that matter concerning which the witness was examined is made known as well as all witnesses knowing about it. Thereafter, these witnesses may be 'lawfully required to testify in relation thereto.'

This was settled in Ex parte Welborn, 237 Mo. 297, 141 S.W. 31, 34, in which we said:

'It is earnestly insisted that considerations of public policy forbid the taking of the deposition of a witness who has appeared before the grand jury, and whose name is indorsed upon the indictment. Counsel invoke the old common-law rule in support of their position.

'One of the announced purposes of the common law in cloaking with secrecy the proceedings of the grand jury was the prevention of the subornation of perjury to meet the Crown's evidence, and this is strongly urged upon our consideration. That was a part of a system which denied the defendant counsel, kept him in close confinement until the hour of trial, refused him the right to call witnesses, sent juries to jail for returning verdicts of acquittal, and which, in short, was devised to convict the accused rather than to try the truth of the charge against him. In many respects, including the feature now pressed upon our attention, the rule in England has been changed by statutes (6 & 7 Will. 4 c. 114, Sec. 4; 11 & 12 Vic. c. 42; 30 & 31 Vic. c. 35) under which a criminal trial bears greater resemblance to a legal proceeding. * * *

'It is urged that since petitioner testified before the grand jury he cannot give his deposition without violating the oath he took as a witness before that body. The oath administered to witnesses before grand juries (section 5070, R.S.1909) binds them, among other things, not to disclose any fact concerning which they 'shall here testify, unless lawfully required to testify in relation thereto.' It is obvious that if there is no other legal obstacle save the clause of the oath quoted, it does not prohibit the taking of petitioner's deposition, provided his being compelled to give his deposition is equivalent to his being 'required to testify.' * * * These authorities and the ordinary and accepted meaning of the word 'testify' convince us that the oath taken before the grand jury constitutes no obstacle to the taking of petitioner's deposition.'

It was pointed out in the Welborn case that our statutes require disclosure of the State's witnesses in a criminal case by requiring them to be endorsed on indictments and informations and afford accused the opportunity to find out their testimony at a preliminary hearing or by deposition, 'upon the theory that truth has nothing to fear from light.' (As to preliminary hearings see Secs. 544.270, 544.280.) It should also be noted that the requirement of endorsement of witnesses on the indictment was enacted in 1879 (see Sec. 1802, R.S.1879) and that the disqualification of a person on trial in a criminal case to testify in his own behalf was not removed until 1877. (Laws 1877, p. 356; see also R.S.1855, p. 1191, Chap. 127, Sec. 16, also p. 1577, Chap. 168, Sec. 6.) Thus we retained some of the common law system of criminal procedure, described in Ex parte Welborn, during the first half century of statehood and this may explain the strictness of our early decisions. Orfield, Criminal Procedure from Arrest to Appeal, pp. 349-350, 459-460. A more recent development is the enactment of provisions authorizing a stenographer or the official reporter of the circuit court to take down and transcribe evidence given before the grand jury. Secs. 56.190, 56.560, 540.105. This removes the objection noted in State v. Thomas, 99 Mo. 235, 262, 12 S.W. 643, 651, as to minutes 'taken down by persons wholly inexperienced in reducing the language of others to writing,' disclosure of which 'would lead to the grossest injustice to witnesses.' Although the reporter's oath required by Sec. 540.105 does not contain the qualification as to being lawfully required to testify, Sec. 56.190 applicable to Class One Counties (Jackson County is in that class) does provide for an oath, before taking down testimony before the grand jury, that the stenographer 'shall not divulge any testimony which he or she may have heard there, except to the prosecuting attorney or when lawfully required to do so by a court of record having jurisdiction in said matter.' Sec. 56.560 applicable to the City of St. Louis contains similar language. Thus the same requirements as to witnesses, considered in Ex parte Welborn, supra, also apply to stenographers. These provisions indicate that other uses of the stenographer's transcript of the grand jury witnesses' testimony are contemplated than the exclusive use thereof by the prosecuting attorney; and these provisions certainly weaken the authority of the earlier cases insofar as they indicate there should be no disclosure of any such testimony after the indictment and the names of the witnesses have been made public.

We have indicated in State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, 153, and State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 335, that the...

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