United States v. Wetmore

• Decision Date: 24 November 1914
• Docket Number: 23.
• Citation: 218 F. 227
• Parties: UNITED STATES v. WETMORE et al.
• Court: U.S. District Court — Western District of Pennsylvania

218 F. 227

UNITED STATES v. WETMORE et al.

No. 23.

United States District Court, W.D. Pennsylvania.

November 24, 1914

E Lowry Humes, of Meadville, Pa., for the United States.

W. S Dalzell, of Pittsburgh, Pa., for defendants.

THOMSON District Judge.

The defendants, through their counsel, have filed a motion to quash the indictment. A rule being granted to show cause, the district attorney made answer, and both sides were fully heard on oral argument, affidavits on the part of defendants and briefs filed.

The indictment charges the defendants with a conspiracy to defraud the United States. It is alleged that the United States, on the date mentioned, had under construction the Panama Canal, and that the Isthmian Canal Commission appointed under the act of Congress, caused to be issued a circular, being an invitation for proposals to furnish and erect certain mitered lock gates, and for furnishing and delivering certain repair parts, including, among other things, the furnishing of certain specified nickel steel parts to be used in the construction of said gates; that the Isthmian Canal Commission awarded to the McClintock-Marshall Construction Company the contract for the nickel steel, which was by it sublet to the Wheeling Mold & Foundry Company, and by the latter sublet to the Carbon Steel Company, which company accepted said contract and undertook to manufacture and furnish the nickel steel in accordance with the contract and specifications; that the defendants, being officers and employes of the Carbon Steel Company, combined together to defraud the United States, by deceiving the inspectors of the Isthmian Canal Commission, stationed at the mill of said company to inspect the nickel steel so to be furnished to the government; that they were thereby deceived and induced to accept material which was not in accordance with the contract and specifications.

The government instituted an investigation by the grand jury of this district, under which a large number of witnesses were called before it and examined, among them being Samuel M. Wetmore, James E. Lacy, and Henry Lutz, three of the defendants. This investigation resulted in a presentment by the grand jury against the above-named five defendants, the grand jury therein requesting the court that the United States attorney be instructed to lay before the grand jury a bill or bills of indictment against said defendants. Thereupon the court made the following order:

'And now, to wit, May 21, 1914, the foregoing presented in open court and ordered to be filed; and it is further ordered that the United States attorney prepare and present an indictment to the grand jury as recommended.'

A bill of indictment was accordingly prepared and presented to the grand jury, on which a true bill was found and returned to the court. The reasons assigned in the motion to quash the indictment are as follows:

'(1) Because the name of the prosecutor is not indorsed upon the indictment, as required by law.

'(2) Because the indictment is not based upon an accusation before a committing magistrate or commissioner, founded upon probable cause and supported by oath or affirmation, as required by law.

'(3) Because the indictment is not based upon a presentment by the grand jury, made from the personal knowledge or observation of its members, or upon the testimony of witnesses who had been previously examined under oath, orally or in writing, by the court, and by the court sent before the grand jury.

'(4) Because the offense charged in the indictment is not of such a nature as that the grand jury, at the instance of the court, should be directed to proceed to its investigation.

'(5) Because three of the defendants named in the indictment namely, Samuel M. Wetmore, J. E. Lacy, and Henry Lutz, were brought before the grand jury under legal process, and compelled to testify, without any notice or warning that they were testifying against themselves, which is contrary to the Bill of Rights of the commonwealth of Pennsylvania, and to the fifth amendment of the Constitution of the United States.

'(6) Because the United States attorney acted in an illegal and highly improper manner, and in derogation of the defendants' rights, in demanding to know of a witness, in the presence of the grand jury, and who was under oath, whether he had been told what to say by Lacy, one of the above-named defendants, who had just preceded the witness before the grand jury, and, further, in demanding to know of another witness, in the presence of the grand jury, and who was under oath, whether he had been coached as to what to say by his employers.' These will be considered in their order.

The first raises the question whether it is essential to the validity of a bill of indictment in the United States court that a prosecutor's name be indorsed on the back thereof. The practice in the state courts on this subject is regulated by Act of Assembly of March 31, 1860 (P.L. 437) Sec. 27, providing as follows:

'No person shall be required to answer to any indictment for any offense whatsoever, unless the prosecutor's name, if any there be, is indorsed thereon, and if no person shall avow himself the prosecutor, the court may hear witnesses, and determine whether there is such a private prosecutor, and if they shall be of opinion that there is such a prosecutor, then direct his name to be indorsed on such indictment.'

This section was taken from a clause of the act of 1705 (1 Smith's Laws, p. 56), under which legislation it was held that no indorsement was necessary where no person was active in carrying on the prosecution. King v. Lukens, 1 Dall. (Pa.) 5, 1 L.Ed. 13. The indorsement of the name is not conclusive, and the petit jury in imposing costs may designate the actual prosecutor. Commonwealth v. Ream, 1 Pa.Co.Ct.R. 33. It was held that, where an indictment was based on a constable's return in the discharge of his official duty, it is not required that the name of the prosecutor be indorsed thereon. Com. v. New Bethlehem, 15 Pa.Super.Ct. 158.

The practice in formulating indictments in the United States courts is regulated by federal statutes, and not by state laws. Atwell on Federal Criminal Law, p. 35, at section 17, says:

'It is entirely immaterial what provisions the various states make with reference to the forms of indictments therein; the federal statutes control in the enforcement of the federal criminal law.'

Under a statute requiring an indictment to be indorsed 'by the prosecutor,' such indorsement is necessary only in case there is in fact an existing prosecutor. King v Lukens, 1 Dall. (Pa.) 6, 1 L.Ed. 13. If in fact there were a private prosecutor in this case, which does not in any manner appear, the failure to indorse his name upon the bill would be at most a formal defect, such as would not vitiate the indictment or be ground for quashing the same. Section 1025 of the Revised Statutes (Comp. St. 1913, Sec. 1691) provides:

'No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.'

We think the first reason is without merit.

Second. Is it essential to the validity of an indictment that it be based upon an accusation made before a committing magistrate or commissioner, supported by oath or affirmation? It was said in McCullough v. Commonwealth, 67 Pa. 30:

'It has never been thought that the ninth section of the ninth article of the Constitution, commonly called the Bill of Rights, prohibits all modes of originating a criminal charge against offenders, except that by a prosecution before a committing magistrate. Had it been so thought, the court, the Attorney General, and the grand jury would have been stripped of powers universally conceded to them. In that event the court could give no offense in charge to the grand jury, the Attorney General could send up no bill, and the grand jury could make no presentment of their own knowledge; but all prosecutions would have to pass first through the hands of inferior magistrates, for in all the instances mentioned the defendant could not be heard by himself or his counsel, demand the nature or cause of accusation, or meet the witnesses face to face, until after the bill had been found by the grand jury.

'In the federal courts, and in some of the states, it has been held that the grand jury alone may call witnesses and institute all prosecutions of their own motion, and without the agency of the district attorney. 1 Whart.C.L. (Ed. 1868) Secs. 453, 458. In this state the power of the grand jury is more restricted, and the better opinion is that they can act only upon and present offenses of public notoriety, and such as are within their own knowledge, such as are given to them in charge by the court, and such as are sent up to them by the district attorney; and in no other cases can they indict without a previous prosecution before a magistrate, according to the terms of the Bill of Rights. 1 Wh. C.L. (Ed. 1868) Sec. 458, and note. It has, therefore, been held not to be allowable for individuals to go before the grand jury with their witnesses and to prefer charges. Such conduct is looked upon as a breach of privilege on part of the grand jury, and as a highly improper act on part of such volunteers. Its effect is to deprive the accused of a responsible prosecutor, who can be made liable in costs, and also to respond in damages for a false and malicious prosecution. It is in violation of the act authorizing the defendant to refuse to plead

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