United States v. Terry

• Decision Date: 24 May 1889
• Citation: 39 F. 355
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. TERRY et al.

39 F. 355

UNITED STATES v. TERRY et al.

United States District Court, N.D. California.

May 24, 1889

HOFFMAN J.

The first four articles of the plea were abandoned at the hearing. It is urged in support of the remaining articles that the matters therein set up show, if true, that the indictment was not legally found by the grand jury, and that the suit must therefore abate. It is further urged that the demurrer admits, for the purpose of this argument, the truth of the matters so alleged.

The district attorney contends-- First, that the plea alleges matters contrary to the record, and, therefore, that the truth of those matters cannot be inquired into; and, second that the inquiry can from its own nature be made only taking the testimony of the grand jurors, who by law and the terms of their oaths are forbidden to disclose their proceedings or to impeach their finding. It would seem that the more regular course would have been to object to the allowance of the plea. The court would have ruled it out as a formal plea in abatement, for a plea of that character is bad so far as it contradicts the record. At common law the regular answer would be that the indictment was duly returned by a grand jury prout patent per recordum and this must be tried by an inspection of the record itself. Countess of Rutland's Case, 6 Coke, 53; 3 Bl.Comm. 331; 1 Bish.Crim.Proc. § 885, and cases cited; State v Hamlin, 47 Conn. 116; Com. v. Smith, 9 Mass. 110. So, also, if the allegations of the plea cannot be proved except by the testimony of the grand jurors themselves. State v. Hamlin, ubi supra. The demurrer, therefore, in this case can only be allowed to operate as an objection or exception to the filing or allowance of the plea. It cannot be taken as an admission of the truth of the allegations pleaded. No such admission was intended by the district attorney, nor had he authority to make it. These observations may seem to savor of technicality. They will be found, however, to be not without importance to the final decision of the questions argued at the hearing. Assuming, however, that the plea in the case is open to exception as a formal plea in abatement, it does not follow that the defendant is without remedy. Thus, for example, where it is alleged that there has been improper conduct on the part of officers employed in the designating, summoning, and returning of the grand jury, the defendant, who may have been prejudiced thereby, may bring the matter before the court by suggestions or motion or affidavit, even where no right of challenge to the array is allowed by law. But this motion is addressed to the discretion of the court, and the court, having general power to preserve the pure administration of justice, will freely exercise its sound discretion for the purpose of serving that end. PER NELSON, J., U.S. v. Reed, 2 Blatchf. 449. To the attainment of this great object for which courts are established, general rules or doctrines must in some cases give way; but exceptions to their application must be admitted with extreme caution, and on the clearest ground of their necessity, to secure substantial, and not merely technical, rights. Thus it is the policy of the law that the preliminary inquiry by a grand jury as to the guilt or innocence of the accused party should be secretly conducted; and in furtherance of this object the juror is sworn to secrecy; and yet, in cases of alleged perjury, or to impeach or contradict a witness in a criminal, or, perhaps, in a civil, case, the grand juror may disclose the testimony given before the jury. So. again, the general rule that the admissibility and sufficiency of the evidence on which an indictment has been found cannot be inquired into, is unquestionable. Yet if, for example, it should appear from the indorsement on the back of the indictment that only one witness was examined, and it should be shown that he was a convicted felon and, therefore, incompetent to be a witness in any case, I presume that the indictment would be quashed. It has also been held that in extreme cases, 'when the court can see that the finding of a grand jury is based upon such utterly insufficient evidence or such palpably incompetent evidence as to indicate that the indictment resulted from prejudice, or was found in willful disregard of the rights of the accused,' it will interfere and quash the indictment. U.S. v. Farrington, 5 Fed.Rep. 343. On the other hand, many authorities can be cited to show that the court will under no circumstances inquire into the character of the evidence on which the indictment was found, the presentment of the indictment, duly indorsed, being held conclusive of the regularity of the proceedings. Whether an objection that the bill was found by a less number than 12 will be entertained was said by Mr. Justice NELSON to be doubtful under the authorities.

It is evident that the inquiry thus raised is open to technical objections: First. That it would require the juror to reveal his own vote and that of his fellows. Second. It would contradict the record which shows that the indictment was 'a true bill,' i.e., found by the requisite number of jurors. U.S. v. Reed, 2 Blatchf. 435-466; U.S. v. Brown, 1 Sawy. 531; People v. Hulbut, 4 Denio, 133; State v. Boyd, 2 Hill, (S.C.) 288; State v. Fowler, 52 Iowa, 103, 2 N.W. 983; Stewart v. State, 24 Ind. 142; Creek v. State, Id. 151; State v. Fasset, 16 Conn. 467. But it has been held that the testimony of grand jurors may be received to show that under a misapprehension of the law the indictment was found on a majority vote of the jury, and without the concurrence of 12 of the number, and that therefore it was void, and no true bill; and, secondly, that the court, while recognizing the absolute verity which a regular judicial record imports, and the policy on which the rule is founded, yet holds that there always has been and always must be from the necessities of the case a power in the court to vacate or cause to be amended a record which has been erroneously or falsely made, by inadvertency or otherwise, by any of its officers; and that it is competent for it to say, if the claims of justice require it: 'This is not our record; it is false and erroneous, and the authentication it bears is unauthorized and unwarranted. ' Low's Case, 4 Greenl. 444, 445; Hawk. P.C. bk. 2, c. 25, Sec. 15; Com. v. Smith, 9 Mass. 107. Professor Greenleaf adds the great weight of his authority to the doctrine announced in these cases, but he is careful to limit his statement to the points actually decided, viz., 'that grand jurors may be asked whether twelve of their number actually concurred in the finding of a bill, the certificate of the foreman not being conclusive evidence of that fact.' 1 Greenl.Ev. § 252. Assuming this statement of the law to be correct, we perceive that it introduces exceptions to well-settled and fundamental rules which the courts uniformly declare to be salutary, and in general indispensable to the administration of justice. It is not surprising that the courts have in many instances refused to sanction so great a departure from established rules, and that the question should still, as observed by Mr. Justice NELSON, be doubtful. In Low's Case, the court seems to be fully alive to the danger of allowing the exception contended for. 'It may be said,' observes the court, 'that to permit an inquiry of this sort would open the door to great abuses; that it would afford opportunity to tamper with the jury; and that it would lessen the respect due to the forms and solemnities of judicial proceedings. These are considerations which address themselves strongly to the attention of the court. * * * It could only be in a very clear case, where it could be made to appear manifestly and beyond every reasonable doubt that an indictment apparently legal and formal had not in fact the sanctions which the law and the constitution require, that the court would sustain a motion to quash or dismiss it upon a suggestion of this kind.'

From the foregoing it results: First. That matters which contradict the record, or which are, if true, only provable by testimony of the jurors, who must be permitted to disclose what the terms of their oath and the general rules of law require of them to keep secret, and the effect of which is to impeach their verdict, cannot be set up in a formal plea in abatement. Second. If they can be inquired into at all it must be on a suggestion or motion addressed to the discretion of the court; that an exception to the general rules of law, which forbid a record to be contradicted, or a grand juror to disclose the proceedings of the jury, or to impeach its findings, will only be allowed in rare and extraordinary cases, and where the matters, if true, worked a manifest and substantial injury to the defendant, which the court, in the interest of justice, is bound to redress; that the facts contradicting the record must be 'made out to the entire satisfaction of the court so as to leave no doubt on the subject. ' (Per PREBLE, J., Low's Case, 4 Greenl. 453;) that the facts, if true, must present a case, not of technical, or possible, or hypothetical, but of manifest and undeniable, wrong to the defendant, such as putting him to trial on an indictment not found by 12 jurors, and which is therefore no indictment, but an accusation, made by an unauthorized body of men.

Treating then, the allegations of the plea as suggestions made to the court on an application addressed to its discretion or its authority to remedy abuses by its officers which would work a manifest and substantial wrong to the defendant, I proceed to consider those allegations which were relied on at the hearing. The fourth article of the plea alleges, in substance, that the...