State v. Kemp

CourtSupreme Court of Connecticut
Writing for the CourtMALTBIE, Chief Justice.
Citation9 A.2d 63,126 Conn. 60
PartiesSTATE v. KEMP.
Decision Date16 November 1939

9 A.2d 63

126 Conn. 60


Supreme Court of Errors of Connecticut.

November 16, 1939

[9 A.2d 64] [Copyrighted Material Omitted] [9 A.2d 65]

Appeal from Superior Court, Fairfield County; Kenneth Wynne and Frank P. McEvoy, Judges.

Indictment charging G. LeRoy Kemp with the crime of conspiracy, brought to the Superior Court in Fairfield County, where a motion to quash the indictment was denied, Wynne, J., and the issues were tried to the jury Before McEvoy, J.; verdict and judgment of guilty and appeal by the defendant.

Error only as to the sentence imposed, and judgment directed upon the verdict in accordance with law.

[126 Conn. 63] [9 A.2d 66] John Keogh and John Keogh, Jr., both of South Norwalk, for the appellant (defendant).

Lorin W. Willis, State's Atty., of Bridgeport, and Richard F. Corkey, Sp. Asst. State's Atty., of New London, for appellee.


MALTBIE, Chief Justice.

The defendant was tried and found guilty upon a grand jury indictment in two counts charging that, while acting as the agent of the highway commissioner in the purchase of land for the state, he fraudulently agreed to receive, and did receive, a share of the commissions of two agents who represented the sellers of certain lands. He was tried, found guilty and sentenced for the crime of conspiracy. The two brokers arrested under the indictment, were not put to trial with the defendant.

The defendant, by motions to quash and dismiss, attacked the validity of the indictment because of certain irregularities he claims to have occurred in the conduct of the grand jury investigation out of which the indictment grew. In the constitution and statutes of this state, there is no requirement that one accused of crime shall be charged by indictment except the constitutional provision that ‘ no person shall be holden to answer for any crime, the punishment of which may be death or imprisonment for life, unless on a presentment or an indictment of a grand jury.’ Conn.Const., Article I, § 9. Had the indictment in this case been quashed or dismissed, the state's attorney could have immediately filed an information charging [126 Conn. 64] the offenses contained in it and the accused would have been arraigned and tried and doubtless convicted in exactly the same manner that he was. It is, therefore, a fair query whether he could be held to have been injured by any defects in the proceedings of the grand jury. In view of the nature of the proceedings, however, we pass that question to consider the substance of his claims.

The trial court itself selected those who were to serve upon the grand jury and directed the sheriff to summon them. At common law the grand jury was ‘ returned by the sheriff or other proper officer without the nomination of any other person whatsoever.’ 2 Hawkins, P.C., Chap. 25, § 16; 1 Chitty, Criminal Law, p. 310. While most of the states have now enacted statutes governing the selection and summoning of a grand jury, we have none in this state and until recently, so far as we know, have followed the common law practice. There is, however, nothing sacrosanct in a common law rule of procedure, and where to follow it would be likely to defeat the ends of justice, it may and should be modified or abrogated. Obviously to leave the selection of the members of a grand jury to a sheriff, an elective officer responsible to no higher authority, might, in a situation where matters to be considered had aroused public passion or where he himself had an interest in the outcome of the proceedings, defeat the very purpose of a grand jury investigation. The record is silent as to the reasons which actuated the trial court in the course it took, but the nature of the offense and the scope of the trial are such as to indicate that it may well have had good ground for the course it took. While in most cases the old procedure should no doubt be followed, we cannot, upon this record, find that the trial court erred in itself selecting members of the grand jury.

[126 Conn. 65] The defendant also claims irregularity in the conduct of the grand jury investigation in that the state's attorney and his assistants were permitted to be present in the grand jury room and to aid it in the examination of witnesses. In 1815 the Supreme Court, not in a decision but merely stating an approved practice, outlined certain instructions to be given the grand jury, which included a provision that no counsel for the state should be present with them. Lung's Case, 1 Conn. 428. At common law it was not unusual for the presecutor to be present and examine witnesses Before a grand jury except in the King's Bench, where the clerk of the grand jury attended, 1 Chitty, Op.Cit., p. 317; and the exclusion of the prosecutor is traced by Davis to causes never operative in this state, Davis, Precedents [9 A.2d 67] of Indictments, p. 23. Indeed, in the Colonial days in this state a grand jury was sworn to keep the secrets of ‘ the King's Counsel’ as well as their own and that of their fellows. Acts and Laws of 1750, p. 177. In other states it has been held, without reference to any statutory authority, that the presecutor may be present Before the grand jury for the purpose of aiding it in the examination of witnesses. In re District Attorney of United States, 7 Fed.Cas.No. 3,925, p. 745; United States v. Kilpatrick, D.C., 16 F. 765, 770; Gitchell v. People, 146 Ill. 175, 187, 33 N.E. 757,37 Am.St.Rep. 147; Shattuck v. State, 11 Ind. 473, 475; Le Barron v. State, 107 Miss. 663, 673, 65 So. 648; Commonwealth v. Bradney, 126 Pa. 199, 205, 17 A. 600; Shoop v. People, 45 Ill.App. 110, 111; State v. Brewster, 70 Vt. 341, 40 A. 1037,42 L.R.A. 444. In State v. Baker, 33 W.Va. 319, 321, 10 S.E. 639, the presence of the prosecuting attorney in the grand jury room was held to be proper under common law principles, after a statute expressly authorizing him to attend had been repealed, the court remarking that the statute made it the duty of the prosecuting attorney [126 Conn. 66] to attend rather than leaving it permissible and that its repeal may have evidenced an intent to leave the matter to be determined upon the principles of the common law; and this decision aptly answers the defendant's argument that the rejection by our own Legislature of proposed statutes giving the state's attorney the right to attend upon the grand jury indicated an intent that he should always be excluded. That no serious harm is liable to result from such a practice is indicated by the fact that it is quite generally authorized by statute or court decision, although it is also generally held that the prosecuting attorney should not be present during the deliberations of the jury. 28 C.J. 802. Lung's Case, supra, was an accusation of first degree murder and therefore within the constitutional requirement of an indictment. As applied to such a case, we have no disposition to question that the charge there approved should be followed in this respect, at least in the absence of unusual circumstances. The grand jury in this case did not have laid Before it an indictment charging any particular individual with having committed a crime but was impaneled to investigate the situation growing out of a question whether crimes had been committed in connection with the very large purchases of land made necessary by the establishment of the Merritt Parkway, and presents a different situation.

In the revision of the laws of 1750, an earlier statute was amplified to provide that the grand jury of each town should meet at certain intervals ‘ to advise concerning such breaches of law as by their office they are to enquire after and present,’ and for that purpose they were given power to summon witnesses. Laws of 1750, p. 84; Statutes of 1808, p. 372, note. In 1874 the Supreme Court and the county courts were authorized to order a grand jury of eighteen of those [126 Conn. 67] chosen in the respective towns ‘ to enquire after and present such criminal offenses as should be cognizable by such courts respectively where there shall be occasion.’ Laws of 1784, p. 93. With minor changes of no present moment, that continues to be our law. Revision of 1930, § 6430. The provision for the summoning of a grand jury by the superior and county courts was evidently designed to give to that body when so summoned much the same functions as regards offenses cognizable by those courts as had been earlier given to the meetings of grand jurors in their respective towns. The impaneling of a grand jury for such a purpose has been approved by the Supreme Court of the United States: ‘ We deem it entirely clear that under the practice in this country, at least, the examination of witnesses need not be preceded by a presentment or indictment formally drawn up, but that the grand jury may proceed, either upon their own knowledge or upon the examination of witnesses, to inquire for themselves whether a crime cognizable by the court has been committed; that the result of their investigations may be subsequently embodied in an indictment * * *. So valuable is this inquisitorial power of the grand jury that, in states where felonies may be prosecuted by information as well as indictment, the power is ordinarily reserved to courts of impaneling grand jurors for the investigation of riots, frauds, and nuisances, and other cases where it is impracticable to ascertain in advance the names of the persons implicated.’ Hale v. Henkel, 201 U.S. 43, 65, 26 S.Ct. 370, 375, 50 L.Ed. 652.

There is, however, a distinction between the function of the grand jurors meeting in their respective towns and a grand jury summoned to attend upon the [9 A.2d 68] Superior Court. The former were an independent body but the latter act under the supervision of the court and by immemorial practice they are given the oath [126 Conn. 68] provided by the statute...

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