State v. Rhoads

• Decision Date: 23 February 1910
• Docket Number: 12113
• Parties: The State Of Ohio v. Rhoads.
• Court: Ohio Supreme Court

91 N.E. 186

81 Ohio St. 397

The State Of Ohio v. Rhoads.

No. 12113

Supreme Court of Ohio

February 23, 1910

Transcript of private interview with one - Later a witness in indictment proceedings - Transcript delivered to prosecuting attorney for his use in trial - Error for court to order prosecutor - To deliver transcript to defendant or his counsel - One charged with crime - Not entitled to minutes of evidence before grand jury.

1. Where a person conducts a private interview with one who afterwards is called and examined as a witness before the grand jury, which found an indictment against the defendant concerning some matters disclosed in said interview, which interview was stenographically taken, written out and subsequently delivered to the prosecuting attorney for his use, and on the trial the person interviewed is called, and testified for the state in support of the indictment, it is error for the court, on request of defendant, to order the prosecuting attorney to deliver the transcript of said interview to defendant or his counsel, or to order the prosecuting attorney to allow either of them an inspection of the same.

2. A person charged with crime is not entitled, before, or at the time of trial, to the minutes of the evidence taken before the grand jury, on which the indictment was found against him, nor to an inspection of a transcript of such evidence and it is error for the court to order the prosecuting attorney to deliver said minutes, or a transcript of said evidence so taken, to the defendant or his counsel, or to order the prosecuting attorney to permit either of them to make an inspection thereof.

The case is fully stated in the opinion.

Mr Harrison Wilson; Mr. D. F. Pugh and Messrs. Webber, McCoy King & Game, for the exceptions.

The court in effect ordered the prosecuting attorney to assist counsel for the defendant to try their side of the case.

We conceive that in the trial of criminal cases, it is the business of the prosecuting attorney to act as attorney for the state and present its case, leaving to the defendant's counsel the duty of looking after the interests of the defendant. Perhaps in some far off Utopia the day may come when counsel for the state and counsel for the defendant engaged in the trial will co-operate in a spirit of mutual fairness and candor to assist each other in presenting their respective sides of the case. Until that day comes, however, the trial courts should be limited to their legitimate province of administering and announcing the law as it is, and not as each individual judge may fancy the law ought to be.

The right to an inspection of such papers is not conferred upon the defendant in a criminal case by either constitutional or statutory enactment. The trial judge in this case based his order on what may be designated his new rule of evidence "for the development of truth," and obligatory only on the prosecuting attorney. We submit, however, that the principle, if it be a rule of evidence at all, is applicable alike to both civil and criminal cases and to counsel on both sides, in the absence of the intervention of some constitutional or statutory provision enacted for the protection of the accused in criminal cases. Summons v. State, 5 Ohio St. 352; Ex parte Schoepf, 74 Ohio St. 1; Jenkins v. State, 35 Fla. 737, 48 Am.St. 267; Glenn v. State, 46 Ind. 368; Railroad Co. v. Wood, 72 Ala 451; Reid v. State, 81 Ga. 760; State v. Freidrich, 4 Wash. 204; State v. Hayden, 45 Ia. 1; State v. Thomas, 99 Mo. 235; Nelms v. State, 53 Am.Dec. 94; Olds v. Powell, 10 Ala. 393; Commonwealth v. Brown, 90 Va. 671.

There is neither expressed nor implied legislative intent in Section 7195, Revised Statutes, that the transcript may be used by an accused person to make out his defense.

The right of a defendant to inspect the evidence before the grand jury has been denied in Illinois, Kentucky and Arkansas, but in New York it is held discretionary with the court. 6 Ency. of Evidence, 260. In support of the text where the right of inspection was denied, are cited Cannon v. People, 141 Ill. 270; Franklin v. Commonwealth, 105 Ky. 237; Hofler v. State, 16 Ark. 534.

The New York cases, in which it is held that the right of the defendant to inspect the minutes of the grand jury is a matter of discretion with the trial court, turn upon the construction of the New York statute, 2 Cumming & Gilbert's N. Y. Statutes (1901), 1548.

It will be observed that under this statute authority is given to the court to order an inspection of the testimony before the grand jury but that there is no such provision in the Ohio statute. State v. Haugh, 4 N. P., N. S., 79, affirmed 76 Ohio St. 582.

This same question was before Judge Phillips in the common pleas court of Huron county, in seven cases reported under State v. Elnen, 20 Dec., 23, in which cases a motion was made for an order on the official stenographer for a copy of the testimony of the accused before the grand jury. It was held that the motion could not be granted. Merrick v. State, 63 Ind. 327; Havenor v. State, 125 Wis. 444; State v. Wallahan, Tappan, 48; 3 Wigmore on Evidence, 2407, 2437, 2438, 2440, 2441.

Mr. Smith W. Bennett and Mr. Henry A. Williams, against the exceptions.

Right of defendant to inspect minutes of testimony taken before grand jury. Eighmy v. People, 79 N.Y. 546; People v. Diamond, 72 A.D. 281, 175 N.Y. 517; People v. Molineux, 27 Misc. 60; People v. Foody, 38 Misc. 357; People v. Proskey, 32 Misc. 367; People v. Naughton, 38 How. Pr., 430; People v. Bellows, 1 How. Pr., N. S., 149; People v. Klaw, 53 Misc. 158.

Minutes of testimony taken before grand jury and delivered to district attorney are public papers and part of the records of the court. In re Osborne, 117 N.Y.S. 169; Matter of Gardiner, 31 Misc. 364; State v. Little, 42 Ia. 51.

Grand jury is a constituent part of the court and its minutes are under the control of the court. People v. Thayer, 115 N.Y.S. 855; United States v. Kilpatrick, 16 F. 765; State v. Cowan, 1 Head (Tenn.), 280.

The prosecuting attorney is a quasi judicial officer, an officer of the court, and should be impartial. State v. Henning, 33 Ind. 189; Griffith v. Slinkard, 146 Ind. 117; Farrar v. Steele, 31 La. An., 640; Engle v. Chipman, 51 Mich. 524; Fellows v. Mayor, 8 Hun, 484; State v. Yates, 66 Ohio St. 547; State v. Commissioners, 28 C. C., 170; In re Leaken, 137 F. 681; People v. Fielding, 158 N.Y. 542; People v. Greenwall, 115 N.Y. 520; Commonwealth v. Nicely, 130 Pa. St., 261; Brown v. Swineford, 44 Wis. 282.

Duty of prosecuting attorney not to withhold evidence favorable to defendant. People v. Vanderoof, 71 Mich. 158.

Members of grand jury and prosecuting attorney may disclose in court testimony of witnesses given before grand jury. Murphy v. State, 124 Wis. 635; Baum v. State, 6 C. C., N. S., 515.

The prosecutor was laying the foundation, to impeach the testimony of Maetzel; and to have permitted the prosecutor to have kept the transcript from defendant's counsel, that is exactly what he could have done. For looking to Maetzel's testimony, in part, before the grand jury, and that given by him on direct examination on trial, it would have appeared to have been contradictory. But looking to all his testimony before the grand jury, there was no contradiction.

Members of grand jury may disclose in court testimony of witnesses given before the grand jury. Hinshaw v. State, 147 Ind. 334; State v. Benner, 64 Me. 267; Commonwealth v. Mead, 12 Gray, 167; State v. Wood, 53 N. H., 484; DeVeaux v. Clemens, 17 C. C., 33; 12 Cyc., 543; Kirk & Son v. Garrett, 84 Md. 383; State v. Broughton, 29 N. Car., 96, 45 Am.Dec. 507; Bressler v. People, 117 Ill. 422; State v. Moran, 15 Ore., 262; Jones v. Turpin, 53 Tenn. 181; State v. Putnam, 100 Pac. Rep., 2; Burnham v. Hatfield, 5 Blackf. (Ind.), 21; Gordon v. Commonwealth, 92 Pa. St., 216; Section 7191, Revised Statutes.

We are of the opinion that the propriety of the order of the court is fully sustained, not only by the constitutional privileges extended to the witness, but also because the grand jury itself is a part of the court, and in the administration of the criminal law a very essential part. Therefore, the proceedings of that body should be, as they always have been held to be, open to inquiry by the court. The transcript of the testimony taken before that body may be used as an aid to the court as well as to the prosecuting attorney, and fully as much for the purposes of the accused when the cause of justice so demands. Denning v. State, 22 Ark. 131; Wyatt v. People, 17 Colo. 252; State v. Ellsperman, 16 Ohio Dec., 590.

In presenting the prosecutor's view, denying the accused's counsel the right to inspect the transcript of Cannon's statement made out of court before the city solicitor, dependence seems to be placed upon the statement that such transcript was the prosecutor's private paper.

Accepting, for the sake of the argument, the "private papers" view of the prosecutor's contention, can that view place the owner of this transcript beyond the commands of the court to produce it for the purposes of justice? State v. Farnum, 73 S. Car., 165, 53 S. E. Rep., 83; Pinckney v. Henegan, 2 Strob. (S. C.), 250, 49 Am.Dec. 592; Maha Rajah Nundocomar, 20 How. St. Tr., 1057; People v. Lyons, 49 Mich. 78; Mfg. Co. v. Platt, 83 Mich. 419; Wharton on Crim. Evidence (1884 ed.), Section 654; 8 Ency. Pl. & Pr., 121; State v. Wallahan, Tappan, 48; United States v. Burr, 25 Fed. Cases, 3.

It may be pertinent to inquire, why is not that "far off Utopia" and "the day" here and now? May it be that it has been somewhat obstructed by the office of the prosecuting attorney? Is it not a goal toward which we, as members of the bar and...