United States v. Kilpatrick

• Citation: 16 F. 765
• Parties: UNITED STATES v. KILPATRICK.
• Decision Date: 01 January 1883
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

16 F. 765

UNITED STATES v. KILPATRICK.

United States District Court, W.D. North Carolina.

May Term, 1883

[Copyrighted Material Omitted]

J. E Boyd and W. S. Ball, U.S. Attys., for the United States.

C. M McLoud and J. W. Bowman, for defendant.

DICK J.

This case having been called for trial, the defendant filed an affidavit, upon which a motion was made to quash the indictment. After hearing evidence and full arguments I decided that the bill should be quashed, and the defendant be held to await the action of the grand jury, then in session, upon a new bill. As I was desirous of speeding an investigation and trial of the cause, I announced my conclusions of law orally, and stated that I would prepare a written opinion upon the important questions involved, so as to settle such matters of law, practice, and procedure in this district.

The grounds for the motion to quash relate to the conduct of Mr. Bowman, an examiner of the department of justice, before the grand jury which found the bill of indictment. They will be stated and considered in a subsequent part of this opinion, after I have decided some important questions of law presented and discussed in the arguments of counsel. In my judicial experience I have never had occasion to consider fully and decide some of the matters of law, practice, and procedure now before me. Upon questions pertaining to the powers, duties, and responsibilities of grand juries, and to the practice and modes of procedure before such bodies, there have been some contrariety and conflict of opinions in the courts of the several states.

This diversity in the decisions of the courts has arisen, in a great degree, from the fact that the common law is not the same in all the states. Each state has its peculiar social conditions and modes of thought, its local usages, customs, and statutes, which have changed and modified the principles and rules of the English common law, and influenced state judicial decisions. I have carefully considered the decisions and opinions of the supreme court of this state,-- cited in the arguments,-- and have adopted their views as to the common law of this state, as I think such views are not in conflict with any decision of the supreme court of the United States, or with any positive congressional legislation.

In matters which relate to the qualifications and exemptions of jurors the federal court must be governed by the laws of the states in which such courts are held. In designating, summoning, forming, and impaneling juries, the federal courts have a large discretion, and may be rules or order adopt the state methods and usages, so far as practicable, as a strict conformity with state laws is not required. There is no statute expressly requiring federal courts to conform their practice, pleadings, and modes of procedure in criminal trials, to the laws of the state in which they are held.

There is no common law of the United States, and federal courts derive their criminal jurisdiction entirely from congressional statutes; but, in exercising their functions, they are guided by the rules of the common law, where there is no national statute regulating their action, and I am of the opinion that, in determining what these rules are, they should be greatly influenced by the decisions of the highest courts of the state in which they administer criminal justice. This course of practice and procedure would be in accordance with the liberal spirit of national legislation in regard to the common-law civil cases in the federal courts. The best interests of the whole country require that there should be as little conflict of opinion and diversity of legal procedure as possible, between the state and national courts that administer justice in the same communities.

The grand jury is an institution that had its origin in the early periods of the common law. It has always been highly estimated and venerated in England and in this country, as it has been considered as a safeguard of the liberties of the people against the encroachments and oppressions of political power, and against unfounded accusations prompted by private malice, personal animosity, or other improper motives. In contemplation of law grand juries are composed of the best and most intelligent citizens of the community,-- men strictly impartial and free from all objections, and having permanent interests in the property of the country, and thus interested in securing justice and preserving the peace, good order, and well-being of society. 1 Chit.Crim.Law, 307.

As the grand jury is an informing and accusing body, which makes its investigations and holds its deliberations in secret, and is irresponsible for its official action upon matters of fact, except before the tribunal of public opinion, it is very important that its powers, duties, and methods of procedure should be well understood, and be strictly confined within the conservative and salutary limits imposed by law, which experience has shown to be necessary to subserve the public good, and to accomplish a just and impartial administration of the criminal law.

In state courts, where common-law jurisdiction over offenses is exercised, the powers and duties of grand juries are more extensive and responsible than in federal courts, which have cognizance only of offenses defined and declared by acts of congress; and there are special officers and agents appointed to make preliminary investigations of offenses against national laws. State grand juries have a general supervision over the peace, good order, and well-being of society, and may make presentments of offenses which are within their own personal knowledge and observation, or such as are of public notoriety and injurious to the entire community; but they cannot make inquisitions into the general conduct and private business of their fellow-citizens, and hunt up offenses by sending for witnesses to investigate vague accusations founded upon suspicious and indefinite rumors. The repose of society, as well as the nature of our free institutions, forbid such a dangerous mode of inquisition.

A prosecuting officer has no right to send witnesses to the grand jury room merely to be interrogated whether there has been any violations of law within their knowledge. Lewis v. Com'rs, 74 N.C. 194.

An individual has no right to communicate private information to a grand jury for the purpose of obtaining a presentment. If he desires to prosecute an offender there are two modes by which he may accomplish his purpose. He can give information to the solicitor of the state, and have a bill of indictment prepared and sent to the grand jury, and have his name marked as prosecutor, and thus become responsible for the costs and other liabilities which he may incur for the prosecution of a criminal action which he has instituted. He may also make a written complaint on oath before an examining and committing magistrate, and obtain a warrant of arrest and have a preliminary investigation of the accusations made, when and where the defendant can confront his accuser and witnesses with other testimony and have counsel for his defense. This mode is in conformity with our state and national constitutions, and consonant with the principles of natural justice and personal liberty founded in the common law.

It has been held a misdemeanor and a high contempt of court in any individual, acting as a volunteer, to approach or communicate with the grand jury in reference to any matter which either is or may come before them. 1 Whart.Crim.Law, § 507.

A grand jury is a component part of the court, and is under its general supervision and control, and grand jurors may be indicted, or punished for contempt, for any willful misconduct or neglect of duty; but they are independent in their action in determining questions of fact, and no investigation can ever be made as to how a grand juror voted, or what opinions he expressed upon such questions. They should be governed, as to questions of law, by instruction from the judge, and such instructions should generally be given in open court. No other person has a right to give a grand jury an opinion on questions of law which affect the rights of individuals or society.

In the case of Lewis v. Com'rs, supra, Mr. Justice BYNUM, with the approval of the court, expressed the opinion, in strong terms, that a solicitor cannot instruct the grand jury in the law, and he has no business in the grand jury room. He then said:

'None but witnesses have any business before them. No one can counsel them but the court. They do not communicate with the solicitor, but with the court, either directly or through an officer sworn for that purpose. They act upon their own knowledge or observation in making presentments. They act upon bills sent from the court with the witnesses. The examination of witnesses is conducted by them without the advice or interference of others. Their findings must be their own, uninfluenced by the promptings or suggestions of others, or the opportunity thereof.'

I concur in the views thus tersely and forcibly expressed, and with slight modifications, have announced some of them in my oral charges to grand juries. In deference to the opinions of some eminent federal judges, and in part conformity to the usual practice of federal courts, I have given permission to the district attorney and his regular assistant to go before the grand jury when requested by the foreman, or when they regard their presence necessary for a speedy and proper administration of justice. I think that I may presume that lawyers of high standing, and officers of the government intrusted with the performance of important public duties, will not use their official position and the privilege...