Ex parte Johnson , 1 Wash. C. C. 47 ( 1803 )

WASHINGTON, Circuit Justice.

I have no doubt but that Johnson was sent to the grand jury from the best motives on the part of the attorney, but I cannot say that I approve of the practice, and would not have permitted it, had the subject been mentioned in court. As the indictment, when found, amounts to nothing more than calling upon the accused to answer, it is highly improper that the grand jury in their retirement, and without the legal aid of the court as to what is and what is not proper testimony, should in fact decide the cause, which they do if they through mistake of the law should not find the bill. The accused having the benefit of a speedy, candid, and open trial, under the direction of the court, where all his witnesses are heard, can suffer no inconvenience from this rule. If therefore the attorney chose to make use of the' defendant's witness, and marked him on the indictment as a witness for the prosecution, he must be paid by the United States.