State v. Bowman

• Decision Date: 01 June 1897
• Citation: 90 Me. 363,38 A. 331
• Parties: STATE v. BOWMAN.
• Court: Maine Supreme Court

38 A. 331

90 Me. 363

STATE

v. BOWMAN.

Supreme Judicial Court of Maine.

June 1, 1897.

(Official.)

Exceptions from supreme judicial court. Kennebec county.

Frank M. Bowman was indicted for being a common seller of intoxicating liquors, and he filed a plea in abatement, to which demurrer was sustained, and he took exceptions. Exceptions sustained. Demurrer overruled. Plea adjudged sufficient. Indictment quashed.

G. W. Hesselton, Co. Atty., for the State.

S. L. Titcomb, for defendant.

WISWELL, J. To an indictment charging him with being a common seller of intoxicating liquors, the respondent filed a plea in abatement, in which it is alleged, in substance that while the grand jury which found and returned this indictment was in session the presiding judge made and issued the following order to the official stenographer of the court: "At the request of the county attorney, you are instructed to attend with him before the grand jury, there to assist him in taking down the testimony of witnesses in the case of State v. F. M. Bowman, being investigated by the grand jury. You will not be present during the deliberations of said jury, and you will not disclose any testimony so taken down or heard by you, excepting to said jury or the county attorney, or by order of the court." In obedience to this order the stenographer, after being sworn to faithfully perform the duties imposed upon him by the foregoing order, attended with the county attorney before the grand jury, and took down the testimony of the witnesses for the state in the case against the respondent then being investigated. He left the grand-jury room before the jury commenced their deliberations upon the case.

To this plea in abatement the county attorney demurred. The demurrer was sustained, the plea adjudged bad, and the respondent took exceptions.

The question presented is whether the presence of a stenographer before the grand jury while witnesses are being examined, by express order of court, who takes stenographic notes of the testimony, but who retired before the jury commenced their deliberations, invalidates an indictment found upon the testimony of witnesses given under these circumstances.

It has long been the policy of the law, in the furtherance of justice, that the investigations and deliberations of a grand jury should be conducted in secret. The obvious reasons for this, founded upon sound principles of public policy, are to secure the utmost freedom of disclosure of alleged crimes and offenses; to secure that freedom of deliberation, expression of opinion, and of action among the grand jurors which would be impaired if the part taken by each might be disclosed to the accused or to others; to prevent, to some extent, the opportunity of perjury and subornation of perjury, by withholding the knowledge of facts testified to before the grand jury; and to conceal the fact that an alleged crime, is being investigated, or that an indictment has been found, so as to avoid the danger of the escape of the accused before his arrest.

In accordance with this policy, the oath administered to grand jurors, established by common-law usage, ancient and modern, and prescribed by our own statute, contains this clause: "The state's counsel, your fellows', and your own you shall keep secret." The expression "state's counsel" means more than the opinions or advice given by the prosecuting attorney to the jury. The injunction of secrecy applies as well to the secrets of the state, the persons accused, the facts testified to which indicate the guilt of the accused of the offense under investigation, and the witnesses who testify to such facts. In the case of State v. Passet, 16 Conn. 457, it is said: "The grand jury swear 'the secrets of the cause, their own and their fellows', they will observe and keep.' The secrets of the cause must relate to the persons accused, the witnesses, who they are, and what they testify." We think that the expression "state's counsel," in the oath prescribed by our statute, is equivalent to "the secrets of the cause," construed in the above case.

In view of the fact that public policy requires secrecy, not only as to deliberations of a grand jury, their own counsel and their fellows', but also as to the witnesses who testify and their testimony, the state's counsel, for the reasons suggested, and as the oath of the jurors, declaratory of this policy, enjoins them to keep secret the state's counsel, was it proper for the court to order a person, other than the county attorney or...