State v. Beck, 34636

• Court: United States State Supreme Court of Washington
• Writing for the Court: PER CURIAM; HILL; Vanderbilt; Hand; Learned Hand; WEAVER; DONWORTH; HUNTER
• Citation: 56 Wn.2d 474,349 P.2d 387
• Parties: STATE of Washington, Respondent, v. David D. BECK, also known as Dave Beck, Appellant.
• Docket Number: No. 34636,34636
• Decision Date: 03 February 1960

Page 474

56 Wn.2d 474

349 P.2d 387

STATE of Washington, Respondent, v. David D. BECK, also known as Dave Beck, Appellant.

No. 34636.

Supreme Court of Washington, En Banc.

Feb. 3, 1960.

Rehearing Granted May 27, 1960. ^*

Ferguson & Burdell, Charles S. Burdell, Donald Mc L. Davidson, John J. Keough, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Charles Z. Smith, Asst. Chief Criminal Deputy Pros. Atty., Seattle, for respondent.

PER CURIAM.

One of the judges of this court disqualified himself from participating in the decision of this case. The eight remaining judges, after numerous conferences, are equally divided in their decision for the reasons appearing in the opinions filed.

There being no majority for affirmance or reversal, the judgment of the trial court stands affirmed.

It is so ordered.

HILL, Judge.

This is an appeal from a judgment and sentence entered upon a verdict of guilty to a charge of grand larceny by embezzlement. Twenty-nine assignments of error raise a multiplicity of issues.

The trial itself, divorced from the prominence of the defendant, presents a very simple factual issue.

The state's evidence showed that the defendant had possession of a 1952 Cadillac automobile, belonging to the Western Conference of Teamsters; that he authorized its sale that it was sold for $1900, and the proceeds of the sale were deposited in one of his personal accounts over which he had exclusive control; that the Western Conference of Teamsters never received any part of the $1900.

To meet this evidence in support of the charge that he did

'* * * wilfully, unlawfully and feloniously secrete, withhold or appropriate the said $1,900 to his own use with intent to deprive and defraud the owner thereof;'

there was testimony that the defendant thought the car was sold while he was out of the city; that when he returned and found that the car had been sold and the purchase price had been deposited in his account, he delivered nineteen hundred dollars to a bookkeeper and told him to apply it to the account of either the Western Conference of Teamsters or the Joint Council of Teamsters, whichever owned the car. It was patently a defense that could be contrived to meet the exigencies of the case.

The state's case was clear and unchallenged. The basic issue for the determination of the jury was whether or not it believed the explanation presented by the defense. The verdict of guilty was the jury's answer to that issue.

We shall adopt the appellant's ten divisions for the consideration of the twenty-nine assignments of error.

I. Grand Jury Proceedings.

This is the longest section of appellant's brief (some 66 pages).

We disagree completely with the appellant as to the function of a grand jury in this state. In the period when an indictment by a grand jury was a prerequisite to a prosecution for a felony, it was said (and the appellant seems to have assumed its present day applicability) that a grand jury was meant to be a shield between the defendant and the zeal of the prosecutor. For the most part, the cases upon which the appellant relies come either from the time when a grand jury indictment was necessary, or from jurisdictions where it is still a requisite.

The grand jury in this state is not and was not intended to be a shield for the accused. Our state constitution provides that,

'* * * Offenses heretofore required to be prosecuted by indictment may be prosecuted by information, or by indictment, as shall be prescribed by law.' Art. I, § 25, Washington state constitution.

Furthermore,

'* * * No grand jury shall be drawn or summoned in any county, except the superior judge thereof shall so order.' Art. I, § 26, Washington state constitution.

The prosecutor's information has become the standard means of bringing charges in this state, as in all other states which authorize its use. It has long been settled that there is no denial of Federal constitutional rights involved in the substitution of the prosecutor's information for the grand jury's indictment. Hurtado v. People of State of California, 1884, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; State v. Nordstrom, 1893, 7 Wash. 506, 35 P. 382, affirmed 164 U.S. 705, 17 S.Ct. 997, 41 L.Ed. 1183.

The grand jury is now used not as a shield against the zealous prosecutor, as in times past, but to replace, on occasion, the prosecutor who is not sufficiently zealous (for whatever reason), and, more often, as presently, as a valuable but expensive weapon (hence, used sparingly) to assist a prosecutor in investigating conditions and people insulated from investigation by the usual procedures. It has been said that.

'The inquisitorial power of the grand jury is the most valuable function which it possesses to-day and, far more than any supposed protection which it gives to the accused, justifies its survival as an institution. As an engine of discovery against organized and farreaching crime, it has no counterpart. * * *' In re Grand Jury Proceedings, D.C.E.D.Pa.1933, 4 F.Supp. 283, 284.

It must be accepted for what it is: an inquisitorial body, an accusing body, and not a trial court. Its functions are investigative and not judicial. It is not concerned that the evidence, then available, establish the commission of crime beyond a reasonable doubt. State v. Lawler, 1936, 221 Wis. 423, 267 N.W. 65, 105 A.L.R. 568. The end result of a grand jury's deliberations is not a judgment and sentence, but merely a charge; consequently, the concepts of procedural due process do not apply to the grand jury, except as they may be necessary to prevent prejudice to an accused or a witness in subsequent proceedings; thus, a grand jury may not deny the constitutional privilege against self incrimination, and it may not impair the constitutional protection against unreasonable searches and seizures.

The grand jury is 'the voice of the community accusing its members,' (Judge Learned Hand in In re Kittle, C.C.S.D.N.Y.1910, 180 F. 946, 947), and it may properly reflect the sentiment of the community. It

'* * * breathes the spirit of a community into the enforcement of law. Its effect as an institution for investigation of all, no matter how highly placed, creates the elan of democracy.' United States v. Smyth, D.C.N.D.Cal.S.D.1952, 104 F.Supp. 283, 291.

The appellant, on the other hand, suggests that the grand jurors were disqualified because they presumably reflected the sentiment of the community from which they came. The inference from the appellant's argument is that a person who can secure a large amount of adverse publicity from newspapers, radio, and television, thereby becomes immune from grand jury investigation; the more notoriety he achieves, the more reason he should not be investigated.

Investigative agencies--city, county, state, or Federal--do not wait for the hue and cry to die down before they begin to investigate or to file a charge against an accused. Nor do we see why a grand jury investigation should be handicapped or delayed because of publicity of whatever kind or character. Because a grand jury merely makes the accusation and does not try the accused, the general rule is that, barring statutory provisions to the contrary, bias or prejudice on the part of one or more of the grand jurors is not a ground for quashing the indictment. In United States v. Knowles, D.C.1957, 147 F.Supp. 19, 21, it was said,

'The basic theory of the functions of a grand jury, does not require that grand jurors should be impartial and unbiased. In this respect, their position is entirely different from that of petit jurors. The Sixth Amendment to the Constitution of the United States expressly provides that the trial jury in a criminal case must be 'impartial'. No such requirement in respect to grand juries is found in the Fifth Amendment, which contains the guaranty against prosecutions for infamous crimes unless on a presentment or indictment of a grand jury. It is hardly necessary to be reminded that each of these Amendments was adopted at the same time as a part of the group consisting of the first ten Amendments. A grand jury does not pass on the guilt or innocence of the defendant, but merely determines whether he should be brought to trial. It is purely an accusatory body. This view can be demonstrated by the fact that a grand jury may undertake an investigation on its own initiative, or at the behest of one of its members. In such event, the grand juror who instigated the proceeding that may result in an indictment, obviously can hardly be deemed to be impartial, but he is not disqualified for that reason.'

In Coblenz v. State, 1933, 164 Md. 558, 166 A. 45, 50, 88 A.L.R. 886, 894, 895, it is said:

'* * * we find no ground for imposing a requirement that they must be unprejudiced as the objection demands. On the contrary, such a requirement would seem inconsistent with their freedom to accuse upon their own knowledge, for persons who come with knowledge sufficient to serve as a basis of indictment are likely to come with the conclusion and prejudice to which that knowledge leads. They must act upon their own convictions, after conferring secretly and without any interference; but they are not required to come without any prejudice. * * *'

And in United States v. Rintelen, D.C.S.D.N.Y.1916, 235 F. 787, at page 789, Judge Augustus N. Hand said,

'* * * An intelligent grand juror can hardly be found who has not decided opinions derived from his general knowledge as to any case of public notoriety. He may have even passionate feelings on the subject, which in general affect and actuate him. The question is not what his feelings were, but whether he voted for an indictment honestly and upon competent evidence. That an indictment can be quashed because the grand jurors had personal prejudices, even ill-founded ones, would leave every indictment in an important case, irrespective of the evidence on which it was found, open to attack. * * *' We...