State v. Revere

• Decision Date: 25 February 1957
• Docket Number: No. 43077,43077
• Citation: 232 La. 184,94 So.2d 25
• Parties: STATE of Louisiana v. Sidney Paul REVERE.
• Court: Louisiana Supreme Court

Page 25

94 So.2d 25

232 La. 184

STATE of Louisiana v. Sidney Paul REVERE.

No. 43077.

Supreme Court of Louisiana.

Feb. 25, 1957.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Phil Trice, Asst. Dist. Atty., New Orleans, for appellant.

Eugene Stanley, Clem H. Sehrt, New Orleans, for defendant-appellee.

FOURNET, Chief Justice.

The state is appealing from the judgment of the district court quashing an indictment returned by the Grand Jury for the Parish of Orleans charging the defendant, Sidney Paul Revere, with perjury as denounced by RS 14:123, on the ground that one Edward Stevens, an unauthorized person, had been present in the grand jury room during that body's investigation of the case against the accused.

According to the record it appears that the grand jury during the month of January 1953 had for investigation alleged irregularities in connection with the operation of the Louisiana State Museum under the directorship of the defendant, and, as a result thereof, that several indictments were returned against him on February 11, 1953, one being Indictment No. 141--214, which was allotted to Section 'A' of the Criminal District Court for the Parish of Orleans and charged him with perjury.¹

It was during the trial of the defendant in Section 'E' on one of the other indictments (No. 141--209)² that defense counsel first learned Edward M. Stevens had been present in the grand jury room as monitor of a machine being used to record the proceedings before the grand jury which resulted in the return of this indictment, and they, on June 6 following, filed a motion to quash the indictment in the instant case on that ground.

On trial of the motion Stevens, the only witness, testified that at the time the indictment was returned he was serving as an investigator in the office of the district attorney for the Parish of Orleans, to which office he had been assigned by the police department of the City of New Orleans in the fall of 1952, having served for some 5 years prior thereto as a desk sergeant for that department. He further testified he was called by the District Attorney to monitor the 'Soundscriber' machine being used to record the testimony of the witnesses appearing before the grand jury in connection with the investigation of the Louisiana State Museum, and that after having been administered the oath of secrecy by the foreman of the grand jury, he did monitor the machine and later made a typed transcript of the proceedings from this recording. He stated that although he was a typist, he was unable to take shorthand, and, further, that prior to the investigation of the case by the grand jury he had participated in the investigation of the accused that finally resulted in the return of the indictment.

The rationale of the trial judge's reasons for his ruling in quashing the indictment may be succinctly stated to be that 'The legislature has prescribed what persons may be permitted to attend the sessions of the grand jury,' and although a stenographer is an authorized person, inasmuch as Sergeant Stevens is not a stenographer and was, during the session, listening to the machine and not to the witnesses themselves, he 'could not have been sworn before the grand jury in this capacity,' and, therefore, 'was not one of the persons authorized by law to be present.' He further states that 'To deviate in any degree from rules of procedure laid down by the statute opens the door to the possibility of abuse and prejudice,' since 'The statute regulating grand jury proceedings and prescribing what persons shall attend its sessions is designed to insure that no undue influence is exerted on members of the grand jury to the prejudice of either the state or the defendant,' and 'The secrecy of the grand jury proceedings makes it impossible to inquire into or to determine in any case whether its members have been subjected to undue influence.'

The state contends, however, (1) that 'the presence of Stevens during the grand jury session was in the capacity of a stenographer as contemplated in RS 15:215,'³ arguing that this section merely lists those given specific permission to be present without forbidding the presence of others, and (2) that even though he was not an authorized person this, in the absence of a showing of prejudice or injury, 'is not sufficient basis for vitiating the indictment' under the law generally prevailing in this country.

So far as we can determine, the exact issue presented for our determination under the first contention has never been squarely passed on by any court.⁴ In order that it may be intelligently and properly considered for decision, therefore, we must first review the function of the grand jury against the contributing historical factors that have given added significance to that body as we know it in America in modern times.

We find that while the actual origin of the grand jury is veiled in obscurity and cannot be traced with exact certainty, since it arose silently and gradually out of the usages of a state of society that has forever passed away, there can be no doubt that it is of medieval origin and antedates by centuries the criminal and civil trial juries that eventually evolved from it. It is generally conceded by serious students that the usage of a jury in the royal courts for the purpose of discovering and presenting to the king persons suspected of serious crime has its inception in one main root--the old Carlovingian inquisitio of Frankish origin that was adopted in Normandy by its kings and brought to England, being employed by William the Conqueror as early as 1066 for the purpose of having a designated number of men summoned by a public officer to discover and present certain facts in answer to inquiries addressed to them. This was the machinery used extensively by William in the compilation of his Domesday Book around 1081--85, which contained the results of his inquest or survey of the lands of England. Thus it was that when Henry II, as a part of his general reformation of the law, and motivated by a desire to increase the detection and trial of crimes in the kingdom, issued his Assize of Clarendon in 1166, the first statute to institute the accusatory procedure as we know it today, he drew not on Anglo-Saxon precedents but on this medieval Frankish legal custom of calling together a body of neighbors to give upon oath a true answer to some questions that had a century previously been employed by the Conqueror. The accusatory body thus formed closely resembled the modern grand jury in personnel, duties, and powers, its members being from the first neither exactly accusers nor exactly witnesses, but designed to give voice to common repute and report. See 2 Pollock & Maitland, History of the English Law, 639, 642; Kenny, Outlines of Criminal Law 487, Section 718; Vanderbilt, Judges and Jurors 52; Orfield, Criminal Procedure from Arrest to Appeal 135-- 193; 1 Stephen, A History of the Criminal Law of England 244, 253; Holdsworth, A History of the English Law, Vol. 1, pages 312--350; Vol. 2, pages 197, 198, 256, and 257; Vol. 3, pages 608 and 609; 28 C.J. 763, Section 4; 38 C.J.S., Grand Juries, § 1 c, p. 982; 24 Am.Jur. 833, Sec. 3; 12 RCL 1014, Sec. 2; 38 Journal of Criminal Law and Criminology 43; 10 Oregon Law Review 101; 16 Fordham Law Review 131; Charge to Grand Jury by Mr. Justice Field, U.S.C.C.A., Fed.Cas.No.18,255, 2 Sawy. 667; State ex rel. Porter v. District Court of First Judicial District, 124 Mont. 249, 220 P.2d 1035.

By a curious inversion this jury, established in order to make easy, and thus multiply, accusations of crime, became one of revising and, thereby, diminishing such accusations. It was deemed, in time, the very essence of an Englishman's liberty and his greatest protection against invasion of his life and liberty from unwarranted persons and motives; from unfounded accusations and groundless prosecutions, whether engendered by partisan passions or private enmity; and from political persecutions and governmental tyranny in the centuries when absolute monarchs on the Continent did not hesitate to interfere with the subject's freedom by imprisoning him without accusation or hearing. So much was this true that it was one of those great and firmly entrenched rights whose preservation was wrung from the king to secure the subject against oppression and incorporated in the Magna Charta of 1215, and so sacred did it become to the Englishman that a mere attempt by the Crown to dictate to grand juries hastened the downfall of the Stuarts in 1688. Brought to this country by our forefathers, it was preserved in the charters of the original colonies and in our national Bill of Rights (Fifth Amendment to the Constitution) when this nation was founded, and, also, in many state constitutions, the Louisiana provision being Sections 2 and 9 of Article I of the Louisiana Constitution of 1921. And, lying, as it does, at the very foundation of our government, it is recognized today not only as an important tool in the enforcement of criminal law, but also as the last stronghold of the layman's initiative and shield in this field. Kenny, Outlines of Criminal Law 487; Vanderbilt, Judges and Jurors 52; 38 Journal of Criminal Law and Criminology 43; Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232, both the original opinion and the dissenting opinion of Mr. Justice Harlan; Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; In re Opinion to the Governor, 62 R.I. 200, 4 A.2d 487, 121 A.L.R. 806; Charge to Grand Jury, U.S.C.C.A., Fed.Cas.No. 18,255, 2 Sawy. 667; People v. Naughton, 7 Abb.Pr.,N.S., 421, 38 How.Pr.,N.Y., 430; Commonwealth v. Harris, 231 Mass. 584, 121 N.E. 409, 410.⁵

Not only has the grand jury been, traditionally, an inquisitorial body charged with determining whether probable...