State v. Owen, 28116-28124

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Anderson, J.
• Citation: 126 So. 25,156 Miss. 487
• Parties: STATE v. OWEN
• Docket Number: 28116-28124
• Decision Date: 03 February 1930

126 So. 25

156 Miss. 487

STATE
v.
OWEN

Nos. 28116-28124

Supreme Court of Mississippi

February 3, 1930

Division B

. (Division B.) [126 So. 25.]

1. INDICTMENT AND INFORMATION. Presence in grand jury room of bar association's report charging defendant with extortion in office and its consideration by jury held to vitiate indictments returned against defendant.

Presence in grand jury room of bar association's report charging defendant with various and sundry acts of extortion in office, and setting out evidence in detail on which such charges were based, and its consideration by grand jury, held to vitiate indictments returned against defendant for crime of extortion in office of justice of the peace.

2. GRAND JURY. Law prohibits outsiders from taking any part in deliberations of grand jury.

Law prohibits outsiders from taking any part whatever in deliberations of grand jury.

3. GRAND JURY. Investigations of grand jury should be confined strictly to testimony of witnesses having knowledge of facts touching matters under inquiry.

Investigations of grand jury should be confined strictly to testimony of witnesses having knowledge of facts touching matters under inquiry.

HON. TOM TAYLOR, Judge.

APPEAL from circuit court of Forrest county HON. TOM TAYLOR, Judge.

A. H. Owen was indicted for the crime of extortion in office. The indictments were quashed, and the State appeals. Affirmed. [156 Miss. 488]

Affirmed.

Forrest B. Jackson, Assistant Attorney-General, for the state.

The fact that a portion of the testimony and evidence before the grand jury was incompetent is not a basis for, nor will such fact support, a motion to quash the indictment.

First Bishop's Criminal Procedure, sec. 72, page 517, note 4; Hammond v. State, 74 Miss. 214, 21 So. 149; State v. Bacon, 77 Miss. 366, 27 So. 563; State v. Coulter, 61 So. 706, 44 L.R.A. (N.S.) 1142; Price v. State, 120 So. 751.

Francis Harmon and T. J. Wills, of Hattiesburg, for the state.

The court will not inquire into the sufficiency of the evidence before the grand jury to find an indictment.

Price v. State, 120 So. 751; Blowe v. State 130 Miss. 112, 93 So. 577, 24 A.L.R. 1429; Tucker v. State, 61 Miss. 754; Kind v. State, 5 How. 730; Rocco v. State, 37 Miss. 357; Durr v. State, 53 Miss. 425; Kyzar v. State, 125 Miss. 79, 87 So. 415; Baldwyn v. State, 125 Miss. 561, 88 So. 162; People of N.Y. v. Shea, 147 N.Y. 78, 41 N.E. 505.

An indictment will not be quashed where it does not appear from any affirmative proof that the grand jury was influenced to any degree by improper evidence.

Thompson & Meriam on Juries, pars. 467-614, 2 Sawyer 673.

Currie, Stevens & Currie, of Hattiesburg, for appellee.

It is true that one indicted is to be tried by his peers, and, if falsely accused, may expect a deliverance; but he is entitled to attack the prosecution in limine where it is procured by means unknown to and unsanctioned by law.

Welch v. State, 8 So. 673-674; Durr v. State, 53 Miss. 427; Wilson v. State, 13 So. 225, 35 Am. St. Rep. 664; State v. Barnett, 54 So. 313-315; Collier v. State, 61 So. 689-690; Lewis v. The State, 96 So. 169; Lewis v. State, 96 So. 737.

Having made the overwhelming proof as disclosed by the record in this cause, appellee did not have to go as far as he did to prove influence, but having made a prima-facie showing, any court would have presumed improper influence.

Carter v. State, 54 So. 734; Bill Durr v. State, 53 Miss. 425.

R. L. Bullard, of Hattiesburg, for appellee.

As the authorities cited by Messers. Wills, Harmon and the attorney-general relate mostly to inquiry into evidence before the grand jury, they will not be commented on because not material. No effort has been made by us to inquire into that. How much, how little, or whether any evidence was before the grand jury we did not inquire nor could we. If we have shown that improper influence was introduced into the grand jury room, then it makes no difference whether there was competent evidence sufficient to justify the indictments or not. As to this, since the authorities are so well analyzed in the dissenting opinion in the Price case, 127 So. 751, I refer to that as a much clearer and more satisfactory statement of them than I can possibly make.

OPINION

[156 Miss. 489] Anderson, J.

Appellee, a justice of the peace of Forrest county, was indicted for the crime of extortion in office at the April, 1929, term of the circuit court of that county. Ten separate indictments were returned against appellee, charging him with as many separate acts of extortion. Appellee [156 Miss. 490] made a motion to quash all the indictments, the ground of the motion being common to all. The ground was that improper outside influences had been brought to bear on the grand jury to find the indictments. The evidence as to the alleged outside influences was the same as to each indictment. The motion to quash was sustained, and from that judgment the state appeals.

Appellee, in his motion to quash, charged that at least two distinct outside influences were brought to bear on the grand jury to return the indictments. The conclusion we have reached renders it necessary to consider only one of them, namely, the action of the Forrest County Bar Association, and of a committee of that Association, appointed to investigate and report to the Bar Association any illegalities in the administration of the laws by the justices of the peace of that county.

A few days before the indictments were returned against appellee, the Forrest County Bar Association, composed of thirty-odd lawyers, held a meeting, at which it authorized its president to appoint a special committee, "with instructions to investigate illegalities in procedure and practice in connection with the administration of justice in the justice of the peace courts of Forrest county." The Bar Association instructed the committee to report its findings to the Association. The presiding appointed as members of this committee seven members of the Bar Association. This special committee proceeded at once to carry out its mission. After making the investigation required of them, they reported their findings, embodied in thirteen type-written pages, in which it was set out that appellee and L. Korndoffer, justices of the peace of the county, and B. O. Doherty, a constable of the county, had been guilty of various acts of extortion in office, and in connection therewith set out the evidence on which the committee relied as constituting the offenses. The following are two paragraphs of the report.

[156 Miss. 491] "Your committee reports these flagrant violations of the law, confident that the Forrest County Bar Association will desire to take further steps to see that these evils are corrected and these who are guilty of violations of the law are brought before the bar of justice. To this end, the committee requests permission to present the results of its investigation to the grand jury now in session, as the duly authorized committee of the Forrest County Bar Association, and the members of the committee tender their services for any further labors which the Association desires them to make in regard thereto."

"With regard to the specific charges respecting Justices of the Peace A. H. Owen and L. Korndoffer and Constable Doherty, we tender our services to the Forrest County Bar Association in the carrying out of any mandate which the Association may wish to give us. With regard to the remaining recommendations [126 So. 26] in our report, we submit them for such action as this honorable body may choose to take."

The report was signed by the chairman and secretary of the committee.

While the grand jury was considering whether they would find and return indictments against appellee for extortion in office, there were three copies of this report to the Bar Association in the grand jury room.

On the motion to quash, Mr. Hosey, the district attorney of the judicial district in which Forrest county is situated, was called and testified as a witness on behalf of appellee. The questions propounded to the witness, and his answers thereto, on direct examination, were as follows:

"Q. Your name is G. W. Hosey? A. Yes.

"Q. District attorney for this district, and particularly for Forrest county? A. Yes--the Twelfth judicial district.

"Q. District attorney on the 15th day of April, 1929? A. Yes. [156 Miss. 492]

"Q. That is the date the recent grand jury convened? A. What date?

"Q. 15th day of April. A. I think that is correct.

"Q. As a matter of fact you have been district attorney in this district--how long? A. Little better than one term.

"Q. District attorney the time the recent grand jury of Forrest county was investigating cases of the State v. A. H. Owen--eleven indictments being returned,...