Summary
setting forth exception when the ends of justice require otherwise
Summary of this case from Hammary v. SolesOpinion
(December Term, 1846.)
1. A grand juror, on the trial of an indictment, may be compelled to disclose what was given in evidence by a witness before the grand jury.
2. Although a prisoner, on his examination, shall not have his examination, if given on oath, read against him, yet where a grand jury are investigating an offense, with a view to discover the perpetrator, and the person who was subsequently indicted was examined before them on oath and charged another with the commission of the offense, this examination may be given in evidence against the prisoner on the trial of his indictment.
APPEAL from NEW HANOVER Fall Term, 1846; Settle, J.
The prisoner was indicted for the murder of Frank DeSilva. The homicide occurred in Wilmington, during the term of New Hanover Superior Court, and the grand jury then impaneled were engaged in an inquiry as to the circumstances, character, and perpetrator of the act. At the instance of the grand jury, Broughton was summoned and sworn in court and sent to them as a witness. On the trial of the present indictment Mr. Savage, who was at the time the foreman of the grand jury, was called as a witness for the State to prove that the prisoner, on his examination before the grand jury on that occasion, charged one Gonzales with the murder of DeSilva. The counsel for the prisoner objected to the examination of Mr. Savage as to any (97) matter that occurred before the grand jury. But the court received the witness for the purpose to which he was called; and he stated that the prisoner charged Gonzales with murder and betrayed unusual anxiety to fix it upon him.
On the part of the State further evidence was given that DeSilva kept a shop in Wilmington, and had some money on hand, and that on the night preceding his death the prisoner was entirely without money, but immediately afterwards had money and made an ostentatious boast of it, and treated his acquaintances at several tippling shops, and when arrested, six days afterwards, he still had $14 or $15 about him, and also had two purses, a cap, and a pencil case that belonged to the deceased at his death. And it was further given in evidence that the deceased was in the habit of wearing a ring on one of his fingers, but that when the dead body was found the ring was gone, and that the prisoner, who had never worn a ring before, was seen, two or three days after the homicide, with just such a ring on as DeSilva had usually worn.
After the conviction of the prisoner his counsel moved for a venire de novo because the evidence of Savage was improperly received, and because the court ought to have instructed the jury to place no reliance whatever in the charge on the prisoner's pecuniary condition, as that might have taken place in many ways, nor on the possession of the prisoner of the several articles before mentioned. The motion was refused, and from the judgment of death the prisoner appealed.
Attorney-General for the State.
Strange for defendant.
By the policy of the law grand juries act in secret, and, with a view of sustaining that policy, it is prescribed that a grand juror shall, amongst other things, swear that "the State's (98) counsel, your fellows, and your own, you shall kept secret." The whole sense in which those words are to be received, or the duration of the secrecy imposed, we do not find accurately stated by any ancient writer on the common law. There are some reasons for the rule which are obvious enough; and, as far as the public interests can be subserved by it, the secrecy ought to be kept not only while the grand jury continues impaneled, but it ought also to be subsequently observed. The principal ground of policy is, no doubt, to inspire the jurors with a confidence of security in the discharge of their responsible duties, so that they may deliberate and decide without an apprehension of any detriment from an accused or any other person, but be free "true presentment to make." Therefore it is clear that at no time nor upon any occasion ought a grand juror to make known who concurred in or opposed the presentment, as the power to do so would or might in some degree impair that perfect freedom from external bias which a grand juror ought to feel. It is probable, likewise, that another ground is that it might lead to the escape of criminals, if their friends or others on the grand jury were at liberty to make known the institution and progress of an inquisition into their guilt. But as that reason can operate only while the accused is at large, it would seem that, as far as the rule depends on that, it would not be obligatory after his arrest. We think, too, that in furtherance of justice the law may have intended to forbid a grand juror from giving aid to one indicted, and thus found to be probably guilty, in his efforts to defeat the prosecution by publishing the evidence before the grand jury, and thus enabling him to counteract it, perhaps by foul means, after he knew where the case pinched. That would be betraying "the State's counsel," which is necessarily opened to the grand jury. But that is the immunity of the public, and not the privilege of the witness; and, therefore, it would seem that the rule should create an obligation on the (99) conscience of the juror and be enforced by a court only when the public justice may be advanced by it, and that it cannot be urged by the witness himself, when it would defeat justice and thus encourage witnesses before that body to commit perjury, by false statements or the suppression of the truth; for it is obvious that if grand jurors are through all time and to all purposes, prohibited from disclosing and proving the testimony of witnesses before them, there is a perfect exemption from temporal penalties of perjury before a grand jury. The consequences of such a doctrine would be alarming; for, besides the danger of tempting the witnesses to commit so great a crime without the fear of punishment, grand jurors would have no credible evidence on which to act, on the one hand, and the citizen, on the other, would be deprived of one of his most boasted and valuable protections against arbitrary accusations and arrests. It would be extraordinary were witnesses thus enabled to perjure themselves without responsibility. Yet we have not found in the books an instance of an indictment for a perjury before a grand jury, and the text-writers leave it doubtful how far in principle, as they understand it, it is competent to prove what evidence was given before the grand jury. In this State there has not been a prosecution for such a perjury within the experience of either of the judges sitting here. We are, however, well informed by a gentleman, formerly eminent at the bar and afterwards on the bench, Judge Cameron, that there was, before 1807, in the Superior Court for the district of Morganton, a prosecution for perjury committed before a grand jury, in which the oath taken by the defendant was proved by the grand jurors, after objection taken, and there was a conviction, followed by punishment. But evidence has been frequently given, without exception on the circuits, as we ourselves know, in order to discredit a witness, that (100) his testimony before the grand jury differed from that in court. The judges have not considered the rule as designed for the protection of witnesses, but for that of the grand jurors, and in furtherance of the public justice; and we own that our minds are inclined to adopt that conclusion; especially as in the modern case of Rex v. Watson, 32 Howell St. Tr., 107, Lord Ellenborough allowed a witness to be examined as to a part of his evidence and actions before the grand jury, and said that, though doubtful himself, he did so upon the authority of a previous decision, of which, however, he did not give the name. It seems to us that the witness has no privilege to have his testimony treated as a confidential communication, but that he ought to be considered as deposing under all the obligations of an oath in a judicial proceeding, and, therefore, that the oath of the grand juror is no legal or moral impediment to his solemn examination, under the direction of a court, as to the evidence before him, whenever it becomes material to the administration of justice. But we need not go that length at present, for there was no attempt to go into the evidence of this prisoner before the grand jury in detail, but merely to prove that he appeared as a witness and charged the crime on one Gonzales. That was in substance what was done by Lord Kenyon in Sykes v. Dunbar, as the case is stated in 2 Selw. N. P., 815, who required a grand juror to state that the defendant was the prosecutor of an indictment before the grand jury.
The counsel for the prisoner took the further ground here, that it was incompetent to prove the evidence of the prisoner, because it was in the nature of a confession, which compelled by an oath, was not voluntary. It is certainly no objection to the evidence merely that the statement of the prisoner was given by him as a witness under oath. He might have refused to answer questions, when he could not do so without criminating himself; and the very ground of that rule of law is that his answers are deemed voluntary and may be used afterwards to criminate or charge him in another proceeding, and such is clearly the law. (101) 2 Stark., 28; Wheater's case, 2 Mood. Cr. Cas., 45. But it is true, if a prisoner, under examination as to his own guilt, be sworn, his statement is not evidence, because the statute, Rev. Stat., ch. 35, sec. 1 (which is taken from that of Phil. M.), intended to leave the party free to admit or deny his guilt, and the oath deprives him of that freedom. 2 Hawk. Pl., 6, ch. 46, sec. 37; Bul. N. P., 242. And we think it was also properly decided in Lewis's case, C. C. and P., 161, where a magistrate was engaged in the investigation of a felony, and no one in particular was then charged with it, and the prisoner and other persons were summoned and sworn as witnesses, and the prisoner gave evidence upon which he was committed for trial, that his examination was not admissible against him; for, plainly, it was a case within the reason of the statute, which could be completely evaded if, instead of a direct examination of a suspected person, there could be a general inquisition and every individual made to betray himself. For that reason the Court would, in this case, have held that the evidence given by the prisoner could not have been used against him if it purported to confess his guilt and the grand jury had founded a presentment on it; for the proceeding before the grand jury at the time was in its nature inquisitorial and the witness was as much the object of it as any other person. But it is altogether a mistake to call this evidence of a confession by the prisoner. It has nothing of that character. It was not an admission of his own guilt, but, on the contrary, an accusation of another person. That it was preferred on oath in no way detracts from the inference that may be drawn from it unfavorably to the prisoner, as being a false accusation against another, and thus furnishing, without other things, an argument of his own guilt.
There was, in our opinion, no error in receiving the evidence.
There is no exception that the presiding judge directed the jury that the law, under the circumstances stated, raised a presumption of the prisoner's guilt from the possession of the money or of (102) the goods proved to have belonged to the deceased; nor that he did not leave the weight of those facts fairly to the jury. But the exception is that his Honor did not instruct the jury that the circumstances were entitled to no weight, and, therefore, that they ought to disregard them altogether. Now, certainly, those are circumstances tending to connect the prisoner with the deceased at or about the time of his death, and the judge could not take it on himself to say that, notwithstanding those circumstances, the prisoner was not concerned in the death, as it was the province of the jury to determine how far they proved the fact. Indeed, if it had been proper that the court should have given any advice to the jury on that point, we must say that the circumstances, so far from not being entitled to any weight, are cogent evidence and raise a very high degree of probability that the prisoner committed the murder.
The Court is, therefore, of opinion that there ought not to be a venire de novo.
PER CURIAM. No error.
Cited; S. v. Young, 60 N.C. 126; S. v. Matthews, 66 N.C. 110; S. v. Rowe, 98 N.C. 633; S. v. Mallett, 125 N.C. 728, 729; S. v. Parker, 132 N.C. 1018.