State v. Ernster
| Decision Date | 22 October 1920 |
| Docket Number | 22,019 |
| Parties | STATE v. JOHN P. ERNSTER AND OTHERS |
| Court | Minnesota Supreme Court |
Defendants were indicted by the grand jury of Hennepin county charged with the crime of grand larceny in the first degree. They moved separately to quash the indictment upon the grounds mentioned in the first paragraph of the opinion. The motion was denied by Dickinson, J., who certified the case to the supreme court. Remanded with direction to quash the indictment as to each appellant.
Motion to quash indictment.
1. Affidavits upon information and belief were properly excluded from consideration on a motion to quash the indictment.
Motion to quash indictment -- evidence before grand jury.
2. On such motion a member of the grand jury that found the indictment may not disclose the evidence upon which it was found, or whether hearsay or incompetent evidence was received.
Motion to quash indictment.
3. From the minutes of the grand jury that found the indictment and from the testimony of the members of a committee from a former grand jury, it clearly appears that this committee appeared at a session of the grand jury and made statements as to the investigations made by the former grand jury of the charge against the defendants, the evidence heard and the reasons for not taking action. This appearance of the committee constitutes a legal cause for quashing the indictment.
Quaere as to competency of evidence.
4. Whether a grand juror is competent to testify that unauthorized persons attended a session when the charge embraced in the indictment was under consideration, quaere?
Charles B. Elliott, Fowler., Schmitt, Carlson & Furber, Harlan P Roberts, Frank J. Morley and Thomas J. Stevenson, for defendants.
Clifford L. Hilton, Attorney General, C. Louis Weeks, Assistant Attorney General and Floyd B. Olson, Assistant County Attorney, for the state.
Defendants separately moved to quash the indictment upon the grounds that (a) hearsay evidence was before the grand jury and the indictment was found on such evidence, and (b) unauthorized persons were permitted to appear before the grand jury in session and make unsworn and prejudicial statements while it was considering the case against defendants. The court denied the motion, but certified the case to this court for the purpose of reviewing its rulings and finding.
The indictment charges the defendants, officers of the Commonwealth Mortgage Company, with having unlawfully appropriated to their own use a large amount of bonds, negotiable paper and securities belonging to the company. The motion to quash was supported by affidavits and oral testimony. It appears that the indictment was found April 28, 1920, by a grand jury which convened in March. On April 5, 1920, a committee of three, appointed by a previous grand jury, came before the grand jury then in session and made some statements as to the investigations by the former grand jury relative to defendants' transactions with the company. Defendants also offered to show that hearsay and illegal evidence in the way of certain documents was received and considered in finding the indictment.
Each defendant supported the motion by his own affidavit as to the committee's appearance before the grand jury, and as to what was said and done before the grand jury, and also as to the hearsay and incompetent documentary evidence considered. The court rightfully excluded these affidavits upon the state's objection. They were hearsay pure and simple. Such evidence, whether in the form of affidavits supporting a motion to quash or whether offered from the witness stand for the like purpose, ought not to avail even to call for a denial by the state.
Defendants called members of the grand jury that found the indictment, and the prosecuting attorney assigned to the case, and sought to elicit from them that illegal and hearsay evidence had been given and considered by the jury. The ruling excluding such testimony was right.
In this state the rule always has been that a petit jury may not impeach its verdict. State v. Lentz, 45 Minn. 177, 47 N.W. 720, and cases there cited. The reason for the rule is equally applicable to an indictment and its impeachment by a member of the body that found it. Not only the oath of the grand juror and the statutory secrecy imposed upon those in the grand jury sessions, but public policy forbid a disclosure by a grand juror of the testimony given, received or considered in finding an indictment, except in specified instances not here important. State v. Beebe, 17 Minn. 218 (241); In re Pinney's Will, 27 Minn. 280, 6 N.W. 791, 7 N.W. 144; W.J. Burns Int. Det. Agency v. Holt, 138 Minn. 165, 164 N.W. 590. We have also held that the fact that hearsay or illegal evidence was heard and considered by a grand jury is not sufficient ground for quashing an indictment, for there may have been other and competent evidence received to warrant its finding. State v. Marshall, 140 Minn. 363, 168 N.W. 174. It may be noted that the statute does not specifically direct that an indictment is to be quashed if founded in part on hearsay. It is true, the statutory grounds for quashing have been held not exclusive, but that was said in a case where a defendant's constitutional rights have been violated in that he had been compelled to testify before the grand jury. State v. Froiseth, 16 Minn. 260 (296); State v. Brecht, 41 Minn. 50, 42 N.W. 602. However it is significant that the statute does not contemplate that every irregularity shall be fatal.
A moment's reflection suffices to show the utter impracticability of a rule permitting grand jurors, on a motion to quash, to be called to give testimony as to the evidence received by them in finding an indictment. It would permit the calling of every one of the grand jurors finding the indictment and subject them to an examination and cross-examination, and finally to attempt to ascertain what if any, influence the reception of the hearsay evidence had upon the vote. The many cases considered and the number of witnesses heard by a grand jury in a populous county, such as, for instance, Hennepin, would make it impossible for the jurors to recall with any degree of certainty the evidence heard in each case and whether it was in part hearsay. Furthermore, our code negatives the thought that when an indictment is found the evidence on which it is based shall ever again be reverted to, except as therein specified, which exceptions have no bearing here, for, by G.S. 1913, § 9113, it is provided that the clerk selected by them "shall preserve the minutes of their proceedings, but not of the votes of the individual members on a presentment or indictment, or of the evidence given before them." Subsequent sections in the grand jury act show only when a presentment is returned is evidence to be reduced to writing and preserved. To permit grand jurors to impeach the indictment by testifying that improper evidence was received and considered, necessarily would lead to an inquiry as to all the evidence heard and how it affected their vote, a result which a grand juror should not be allowed by his testimony to bring about. "The want of no fact essential to the finding and return of an indictment can be shown by the testimony of a grand juror." State v. Comer, 157 Ind. 611, 62 N.E. 452...
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