Turk v. Martin, Commonwealth's Attorney

• Decision Date: 21 January 1930
• Citation: 232 Ky. 479
• Court: United States State Supreme Court — District of Kentucky
• Parties: Turk v. Martin, Commonwealth's Attorney et al.

232 Ky. 479

Turk v. Martin, Commonwealth's Attorney et al.

Court of Appeals of Kentucky.

Decided January 21, 1930.

1. Criminal Law. — Defendant, charged with crime by indictment, held entitled to have stenographer taking notes of evidence before grand jury furnish him with transcript of such evidence on demand and payment of prescribed fee, under Acts 1922, c. 48, which provides in section 1, that stenographer shall, on order of commonwealth's attorney, attend session of grand jury and take notes of testimony, to be transcribed and delivered to commonwealth's attorney, and in third section that person indicted by grand jury shall have right to procure copy of such stenographic record, or any part thereof, by paying prescribed fee.

2. Criminal Law. — Commonwealth's attorney is under no duty to furnish defendant, accused of crime by indictment, with transcript of testimony taken before grand jury, or copy thereof, or any part of it, under Acts 1922, c. 48, secs. 1, 3, providing for presence of stenographer during examination of witnesses before grand jury, and delivery of transcript to commonwealth's attorney, and giving defendant right to procure copy of stenographic record by paying prescribed fee.

3. Statutes. — Meaning of an act must be gathered from the language used, accepted in its ordinary sense.

4. Statutes. — Acts 1922, c. 48, providing in sections 1 and 3 for stenographer's making and delivery of transcript of testimony before grand jury, which is entitled as an act relating to persons who may be allowed in grand jury room with the grand jury, held not void as containing matters not expressed in title, since making of transcript by stenographer is germane to allowing of persons in grand jury room.

5. Constitutional Law. — Legislature declares public policy of state, and courts are bound by that declaration, unless legislative act is inhibited by some constitutional provision.

6. Criminal Law. — Acts 1922, c. 48, sec. 3, permitting defendant to procure copy of stenographic record of proceedings before grand jury returning indictment against defendant, does not conflict with Criminal Code of Practice, sec. 112, imposing duty of secrecy on grand jurors.

Appeal from Graves Circuit Court.

C.C. GRASSHAM, MILLER HUGHES, M.C. ANDERSON and NOEL ROGERS for appellant.

I.B. MARTIN and W.J. WEBB for appellees.

OPINION OF THE COURT BY JUDGE LOGAN.

Affirming in part and reversing in part.

The appellant, Lucian Turk, was indicted by the grand jury of Carlisle county, which indictment charged him with the crime of murder. The evidence before the grand jury was taken down by a stenographer at the request of the commonwealth's attorney. The appellant applied to the commonwealth's attorney and also to the stenographer for a copy of the stenographic record that was made by her while the grand jury was examining the witnesses in the investigation of the alleged offense. He offered to pay for a copy of a transcript of the evidence. The stenographer, acting under the advice of the commonwealth's attorney, refused to make a transcript of the evidence for the appellant. Upon his failure to obtain a transcript of the evidence, he instituted this action in equity, asking the court to grant a mandamus requiring the commonwealth's attorney and the stenographer, one or both, to accept the fees tendered and offered to be paid for the record, and requiring that an official transcript of the evidence be delivered to him.

Both a special and general demurrer were filed to the petition. The basis of the special demurrer was that the stenographer resided in Ballard county, and that the alleged failure to furnish a transcript of evidence related to a prosecution pending in the Carlisle circuit court, and that for these reasons the Graves circuit court was without jurisdiction to determine the questions involved. Without waiving either the special or general demurrer the appellant filed an answer. The answer admits that the stenographer made stenographic notes of the evidence heard before the grand jury relating to the charge against the appellant. It was admitted that the commonwealth's attorney directed the stenographer not to furnish a copy of the transcript of the evidence to the appellant, and that the stenographer, acting upon his advice, refused to do so. It was denied that appellant tendered the money to pay for the transcript which he demanded.

After the pleadings had been made up, there was a stipulation to the effect that a copy of the transcript had been demanded by the appellant of the stenographer, and that she had declined to furnish it under the advice of the commonwealth's attorney. It was stipulated that appellant directed the copy of the transcript to be made at his expense, and it was further agreed that the commonwealth's attorney had not directed the stenographer to transcribe her notes.

Upon a final hearing the chancellor denied appellant the relief sought. The chancellor was of the opinion that, under the provisions of chapter 48 of the Acts of the General Assembly of 1922, the stenographer taking notes of evidence before the grand jury can only transcribe the notes upon order from the commonwealth's attorney, and that a defendant, in an indictment returned by a grand jury where such notes were taken, has no right, constitutional or otherwise, to compel the commonwealth's attorney to furnish him a copy of the evidence heard by the grand jury, or to require that officer to exercise his discretion and order, or direct, the stenographer to transcribe the notes of the evidence for the purpose of enabling him to obtain a copy of it.

The question presented is an interesting one. The grand jury comes from the common law. It is true the rules governing it have been modified by statute, but now, as then, it is a body composed of freeholders of the county whose function it is to inquire into the commission of crime, and to find indictments against supposed offenders. It cannot be said that it is a judicial tribunal, but rather it is an accusing body. It is of very ancient origin, and its powers have been developed through a process of evolution. Its powers were much greater in its beginning under the common law of England than are its powers today. The grand jury in this state is defined by statutes, and its duties are likewise prescribed.

It is true, as argued by counsel for appellees, that it has always been the policy of the law that the investigations and deliberations of a grand jury should be behind closed doors, and that the result of its labors should not be disclosed. It has been thought that the secrecy of the proceedings in the grand jury room are in furtherance of justice. The purpose of keeping secret the...