Jones v. People , 19 N.Y. Crim. 59 ( 1905 )

Jenks, J.:

If we regard the term “ presentment ” in its stricter meaning as an. accusation of the'" grand jury sua aponte, or as Judge ..Story puts it, “an accusation made ex aero motu” as'distinguished from an indictment which was a written accusation preferred to the grand jury and presented upon oath at the instance of government, then I agree that it is not ,a final accusation •—■ the alternative, so to speak, of an indictment. For a presentment was regarded as the basis of an indictment. The distinetionyloes not now often practically appear, inasmuch as the grand jury is rarely the origin of fic'cnsatiou, as ■ was its prototype under the Assize of Clarendon (Tháy. Ev, 81; 1 Creen'History English People, 111; ^* Eney. Brit. “ Jury,” quoting Stubbs; 4 Black. Comm. chap. 23), though power to act ex mero motu is preserved in section-259 of our Code of Criminal Procedure.

But our Code of Criminal Procedure vests the grand jury with certain inquisitorial or visitorial powers. Section 260. provides as follows: ■“ The grand jury must inquire.: 1. Into the case .of every person imprisoned in the jail of the county, on a, criminal charge, and not indicted; 2. Into the condition and management of the public prisons in the county; and 3. Into the willful and corrupt misconduct in office of public officers of every description in the county.” Section 261 provides as follows: “ They are also entitled to free access, at all reasonable times, to the public prisons, and to the examination, without charge, of all public records in the county.” We may assume that these powers are conferred for some purpose. Official inquiry intends either official action or official report. As such powers are limited to inquiry, and the. grand jury has no executive or administrative authority in the premises, the result of any inquiry must be report or statement which shall call attention to the wrong. The grand jury can but report to the court to which it was returned and by which it is discharged. Such reports are commonly termed presentments. The Standard Dictionary gives this as a definition of presentment: “4. Law. (1) A report made by a grand jury, on their own motion, either on their own knowledge or on evidence before them, concerning some wrongdoing, and presented to the court, usually as a basis for an indictment. (2) The finding and setting forth of charges in an indictment by a grand jury; an indictment.” Bishop on New Criminal Procedure (Yol. I, ■ § 137, snbd. .2) says: “ Sometimes our grand juries make a sort of general presentment of evils and evil things to call public attention to them, yet not as instructions for any specific indictments. No one could be called to answer to such a presentment.” Hochlieimer on the Law of Crime and Criminal Proceedings says: •“ Presentment in a large sense of the term includes every proceeding of a grand jury. 2 Inst. 739.” I think, therefore, that any filial finding upon the exercise of these inquisitorial powers may be called a presentment, and that it may be regarded as final and not improper because an indictment cannot or does not follow it. While it is true that the Code of Criminal Procedure does not in terms provide for a report as the result of this inquiry or-directly provide for a presentment, yet it is significant that the term is used in contradistinction to an indictment in section 250, which reads asfollows: “ The grand jury must appoint one of their number as clerk, who is to preserve minutes of their proceedings (except of the votes of the individual members on a presentment or indictment), and of the evidence given before them.” Such inquiry as is required by sections 260 and 261 of the Code of Criminal Procedure may'reveal misconduct, inattention or shortcomings of public officials, and the report or presentment might be colorless or ineffective unless it specified individual delinquencies, I think that in stich a case the grand jury can properly point, out those individuals who as officials Are deemed responsible, 'and that the. presentment may stand though it be • not followed by an indictment. It may be pertinent to call attention to the fact that inefficiency, carelessness or neglect may .require correction and yet not justify indictment, and to. the fact that not all willful or corrupt misconduct in office can be presented' in the first instance b'y indictment, e. g., unlawfully disclosing the finding of an indictment, unlawfully bringing to or carrying letters from' any county jail, penitentiary or State prison, or selling ‘liquors in a court: house on jail contrary to law. (See Code Grim. Proc. § 56, subds. 13, 14, 30.) It is true that accusation without opportunity to answer in the fdrum is a bitter hardship if not intolerable (See opinion of Lord Mansfield in Rex v. Roupell, Cowp., 458), but while a report or presentment of -a grand jury neither calls- .upon a person nor suffers him to answer, it may be that the court in its inherent power might on the application of one aggrieved refer or resubmit the matter to the further inquiry of the grand jury or of a grand jury in order that justice be done after a full hearing. I think that if under the. guise of..a presentment the" grand jury simply accuse, thereby compelling the accused to stand mute, where the presentment would warrant indictment so that the-accused might answer, the presentment may be expunged,.-but-I do not think that a presentment as a report upon the exercise o-f inquisitorial powers must be striken out if it incidentally point-out that this, or that public official is responsible for omissions or commissions, negligence or defects. . x

As the position of the appellants is that- this presentment is illegal and without"authority in law, regardless,of the merits which indeed are not presented, I feel constrained to affirm the order which deals only with a presentment made in the exercise of inquisitorial powers. ....

Hirschberg, P. J.,and Hooker, J., concurred; Woodward, J,, read for reversal; Bartlett, J., voted to dismiss the appeal on the ground of want of jurisdiction to entertain it. ■

* See Burt’s ed., p; 175.— [Bee. -