United States v. Tallmadge
| Decision Date | 30 August 1907 |
| Citation | 91 P. 729,14 N.M. 293 |
| Parties | UNITED STATESv.TALLMADGE et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Members of the grand jury, under our statute, will not be permitted to impeach an indictment duly found, returned in open court, and filed as such, by testifying as to what was said by the prosecuting officer, while advising with them in his official capacity.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 53.]
Appeal from Fifth Judicial District Court; before Justice Wm. H. Pope.
Benjamin H. Tallmadge and others were indicted for conspiracy. Judgment vacating the indictments, and the United States appeals. Reversed.
Under Comp.Laws, §§ 986-988, relating to the duty of the district attorney in attending upon the grand jury and examining witnesses, members of the grand jury will not be allowed to impeach an indictment returned in open court by testifying as to what was said by the prosecuting officer while advising them in their official capacity.
W. H. H. Llewellyn, E. L. Medler, and U. S. Bateman, for the United States.
Catron & Gortner and J. M. Hervey (A. M. Stevenson and Daniel Prescott, of counsel), for appellees.
At the November, 1905, term of the district court of the Fifth judicial district, sitting for the trial of causes arising under the Constitution and laws of the United States, the defendants were indicted upon various charges concerning the public lands of the United States, charging conspiracy to defraud the government, perjuries, subornation of perjury, and other offenses of like nature; the indictments being numerous, but all relating to like transactions referring to certain land entries and proofs under the laws of the United States. To some or all of the indictments appellees filed pleas in abatement, setting up the specific grounds, to some of which grounds demurrers were interposed and sustained by the trial court, and upon the remaining issues appellant made answer, and the issues thus formed were submitted to a jury. The issue thus tried consists of alleged misconduct of the United States district attorney: (1) In urging to and upon the grand jury that the interest of the government of the United States required and demanded that said grand jury should find an indictment against said defendants; (2) that he stated to said grand jury that the evidence theretofore considered by them was amply sufficient upon which to find indictments against said defendants; (3) that he stated to said grand jury that, if they did not find and return a true bill or true bills against said defendants, upon the evidence theretofore given before them, that he, the said Llewellyn, would have the grand jury dismissed. Upon the trial of these issues the court permitted members of the grand jury to testify as to what was said by the United States district attorney in the grand jury room; in fact the sole evidence upon the issues raised by the plea was the evidence given by the grand jury and by the United States district attorney. This evidence was admitted over the objection and protest of the United States, and exceptions to the court's rulings upon the admission of such evidence were duly taken at the time. The jury found for the appellees as to all the indictments. A motion for a new trial was heard and sustained as to certain indictments and overruled as to others, and final judgment rendered against the United States abating the indictments, from which judgment the United States appeals.
We do not deem it necessary to discuss but one of the questions of law raised by the assignment of error and discussed by counsel in their briefs, as we think it controlling under the circumstances of this case. If the members of the grand jury and the district attorney are competent witnesses to the transactions and occurrences concerning which they testified in this case, then the verdict of the jury on the issues joined could not be disturbed. Section 986 of the Compiled Laws provides: The grand jury may, at all reasonable times, ask the advice of the court, the Attorney General or the district attorney of the county, and whenever required by the grand jury it shall be the duty of the district attorney of the county to attend them for the purpose of framing indictments, or of examining witnesses in their presence but no district attorney, sheriff or other person shall be permitted to be present during the expression of opinions, or giving of their votes upon any matters before them. Section 987 provides that 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...
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State v. Tackett
...no reason why the rule beyond that enunciated in Morgan should be extended and decline to do so. See also United States v. Tallmadge, 1907, 14 N.M. 293, 91 P. 729, 20 Ann.Cas. 46. Although counsel strongly relies on Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, we do......
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State v. Chance
...I have already said, that, if that question were here, so far as permitted by a previous decision of this court (U. S. v. Tallmadge, 14 N. M. 293, 91 Pac. 729, 20 Ann. Cas. 46), I should give careful consideration to the proposition that whenever the fundamental rights of a citizen are viol......
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Lewis v. State
... ... State, 76 Miss. 504, ... 25 So. 495; 14 R. C. L. 204, section 47; U. S. v ... Tallmadge, 14 N.M. 293, 91 P. 729, 20 Ann. Cas. 46, ... and notes ... As to ... the second point ... ...
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Ickes v. Brimhall.
...the common law remains the rule of practice and decision. Browning v. Browning, 3 N.M., Gild., 659, 9 P. 677; U.S. v. Tallmadge, 14 N.M. 293, 91 P. 729, 20 Ann.Cas. 46; Beals v. Ares, 25 N.M. 459, 185 P. 780. [4] In Romero v. A., T. & S. F. Ry. Co., 11 N.M. 679, 72 P. 37, the territorial Su......