United States v. Kirkwood

• Citation: 13 P. 234,5 Utah 123
• Court: Supreme Court of Utah
• Decision Date: 02 February 1887
• Parties: UNITED STATES, RESPONDENT v. ROBERT C. KIRKWOOD, DEFENDANT

13 P. 234

5 Utah 123

UNITED STATES, RESPONDENT v. ROBERT C. KIRKWOOD, DEFENDANT

Supreme Court of Utah

February 2, 1887

APPEAL from a judgment of the district court of the first district. The opinion states the facts.

Exceptions taken by the appellant overruled, and the judgment of the court affirmed.

Mr. A G. Sutherland, Jr., and Mr. Samuel R. Thurman, for appellant.

Mr. W H. Dickson, for respondent.

ZANE C J. HENDERSON, J., and BOREMAN, J., concurred.

OPINION

ZANE C. J.

The defendant was tried upon an indictment for unlawful cohabitation, was found guilty, and was sentenced to be imprisoned for the term of six months, and to pay a fine of $ 300, and from this judgment he has appealed.

While the charge against the defendant was being investigated before the grand jury he appeared, and offered himself as a witness, and the prosecuting attorney told him he could not be compelled to testify, and that he need not be sworn unless he so desired. Nevertheless, he expressed his willingness, and was sworn, and did testify. During the trial of the defendant upon the indictment, the prosecution called as witnesses two members of the grand jury by which the indictment had been found. Each of these witnesses was asked what the defendant had said while testifying before the grand jury. Thereupon his counsel objected for two reasons as alleged: First, that the witnesses were not competent under the statute to testify to what occurred in the grand jury room, because no charge of perjury was pending, nor had defendant given any evidence on the trial with which his statements before the grand jury could be inconsistent, and second, that the statements of defendant before the grand jury were not voluntary. But the court overruled the objection, and the witnesses respectfully testified that appellant had confessed to the grand jury that he knew the three women named in the indictment, Mary, Eliza, and Elizabeth; that they were his wives; that he had lived with them as such during the three years last preceding the finding of the indictment, and during that time had represented them to be, and had held them out to the world as, his wives. The ruling of the court in admitting this testimony, defendant has assigned as error.

The first question raised upon this record, in the order we will consider it, is this: Was it error to permit members of the grand jury that found the indictment against the defendant to testify in regard to what he had said before that body? The reason given for considering the ruling error is that the witnesses were incompetent. Section 141 of the criminal practice act of this territory is as follows: "Every member of the grand jury must keep secret whatever he himself or any other grand juror may have said, or in what manner he or any other grand juror may have voted, on a matter before them, but may, however, be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against such person for perjury in giving his testimony, or upon trial thereof." Laws Utah 1878, p. 89. This section expressly requires the grand juror to keep secret whatever any grand juror may have said, or how he may have voted, on any matter before the grand jury. It does not, in express terms, enjoin secrecy as to the statements of witnesses, or the confessions of parties.

The letter of the first clause would forbid the disclosure of anything said by a grand juror to a witness, by way of interrogation or otherwise, although such disclosure might be necessary in order to ascertain whether the testimony of a witness before the grand jury is consistent with that given by the same witness before the court, or in order to ascertain what the statement of a witness was before the grand jury, on his prosecution for perjury. The answers of a witness are often unintelligible without the question put, and the examinations by grand jurors are often leading, and sometimes are much involved with conversation which should be given with the answers of the witness. Grand jurors may be sworn also, and examined as witnesses, before the grand jury of which they are members; and if they commit perjury, they may be indicted. So far as they appear before the grand jury as witnesses, they should be treated as witnesses.

It is reasonable to assume that the authors of the section under consideration added the second clause for the purpose of removing any doubt as to the right to call for the statements of grand jurors, so far as necessary to secure a full disclosure on the trial of the testimony or confessions of witnesses before the grand jury. The last clause was not necessary for any other purpose; for the testimony of witnesses, and the confessions of parties, were not required to be kept secret by the first clause; and the last section expressly declares that the court may require the grand juror to disclose the testimony of a...