United States v. Rockefeller

• Decision Date: 30 November 1914
• Citation: 221 F. 462
• Parties: UNITED STATES v. ROCKEFELLER et al.
• Court: U.S. District Court — Southern District of New York

221 F. 462

UNITED STATES v. ROCKEFELLER et al.

United States District Court, S.D. New York.

November 30, 1914

The defendants have each filed three pleas in abatement, numbered by them, respectively, 1, 2, and 3.

Plea No. 1 sets forth that divers names, upwards of 100, were placed in the box, from which was drawn the grand jury panel by one Tallman, who, it is averred, was not the clerk at the time he so placed said names in the box. It further avers that one Alexander Gilchrist was clerk, though this averment does not state that he was clerk at that time, nor does the plea state who Tallman was. On the argument, however, it was conceded that he was a deputy clerk. The plea does not claim that any juror who served on the grand jury was one whose name had been placed in the box by Tallman. It avers that this fact 'tended to the injury and prejudice' of the defendants.

Plea No. 2 avers that the grand jury was without power, because it was impaneled at the September term, and sat until the end of the October term without any warrant. An order of the court had in fact been duly entered authorizing it to sit over the end of the September term and into the October term, and on the argument the authority of the court to make this order was questioned.

Plea No. 3 avers that a stenographer, who was not an attorney, was present during the taking of testimony before the grand jury. It sets forth that he was present by direction of the district attorney, pursuant to an appointment by the Attorney General, as clerk and assistant to the district attorney.

The pleas conclude with prayers in one or the other of the followings forms:

'Wherefore the said (respondent) prays judgment of the said indictment whether the United States of America ought or can prosecute him for the premises, or call upon him to answer the same and that he may be discharged thereof without day.'

'Wherefore the said (respondent) prays judgment of the said indictment whether the United States of America ought or can prosecute him for the premises, and that he may be discharged thereof without day.'

To these pleas the government interposed demurrers, attacking both their form and substance. The government contended that all of the pleas were fatally defective in form, because the prayers were in bar, instead of in abatement.

Frank M. Swacker, Sp. Asst. Atty. Gen., of Washington, D.C., and Robert P. Stephenson, Asst. U.S. Atty., for the United States.

Nicoll, Anable & Lindsay, J. D. Lindsay, Hornblower, Miller & Potter, W. M. Miller, Simpson, Thatcher & Bartlett, A. B. Thatcher, Sullivan & Cromwell, and Clarke M. Rosecrantz, all of New York City, Richard V. Lindabury, of Newark, N.J., and Alton B. Parker, Spooner & Cotton, and John C. Spooner, all of New York City, for defendants.

SESSIONS, District Judge (after stating the facts as above).

At the outset I may say that I have scant patience with any person who advocates a disregard of the great principles and precedents which have been established through many years of experience, are the result of the combined wisdom of many generations of men, and stand for the safeguarding and protection of the rights and liberties of the people. On the other hand, I have little more patience with mere technicalities, and with such narrow constructions of laws relating to procedure that the following of such constructions tends more to the obstruction of justice than to the furtherance of its ends and purposes.

I do not care to pass upon some of the contentions that are made by counsel, and I say that without regard to the merits or want of merits of such contentions, because I believe that the decision of these matters can be placed upon broader and better grounds than some of those which have been urged. Among such contentions is the one that these pleas in abatement are insufficient, in that the conclusions or prayers are in bar, instead of in abatement. Another is that the averments in the pleas of want of knowledge and information as to the presentment of the indictment, its allegations, and the regularity of the proceedings in summoning and drawing the grand jurors who presented the indictment, follow the tenders of issue, and therefore are mere surplusage, adding nothing to the pleas.

Coming, then, to the specific and substantial questions presented by the pleas:

First, as to plea in abatement No. 1: It is here claimed that the indictment is invalid and insufficient, and ought to be quashed, because it was not returned and presented by a legally constituted grand jury, in that a person who was not authorized so to do placed some of the names in the jury box from which the grand jurors were drawn, and the clerk of this court, upon whom that duty is imposed by statute, did not act. It is true that the averments and allegations of a plea in abatement must be made with strict and exact accuracy. This requirement is not technical, or at least, if it is technical, it is meeting one technicality with another. In cases where the only injury alleged is such as may follow from a failure to observe technical requirements of the law, strict accuracy ought to be required. I do not think this plea in abatement can be sustained for two reasons:

First I am unwilling to subscribe to the doctrine that a deputy clerk may not act under any circumstances in the placing of names in the jury lists or in the jury box. Congress, in its wisdom, has seen fit to authorize the appointment of deputy clerks. With some exceptions, the duties of deputy clerks are not specifically defined or prescribed. It must be assumed that Congress intended that the word 'deputy' should have its ordinary and usual meaning, and thus that the deputy clerk, under certain conditions, may act in the place of the clerk. He is a person to whom the duties of the clerk are deputed. That is the ordinary and natural meaning of the word. And in the event that the clerk of the court is incapacitated, absent, sick, or disabled, and cannot perform...