Commonwealth v. Green

Opinion,

Mr. Justice Clark:

The indictment in this case was for keeping a disorderly house; it was based upon a presentment of the grand jury, the indictment having been prepared in pursuance thereof, and sent to a subsequent grand jury, with the permission of the court. A rule was taken to quash the indictment, upon the ground that the presentment was not made upon the knowledge and observation of the grand jury, but upon evidence taken before them on another complaint. At the hearing of the rule, a member of the grand jury was called to testify as to what influenced the grand jury in making the presentment, and it appeared that the presentment was made upon the testimony of certain witnesses examined upon a charge of assault and battery, against some other person than the present defendant, under investigation by the grand jury, and not from their personal knowledge and observation.

That the grand juror was a competent witness for this purpose cannot'be doubted: See Gordon v. Commonwealth, 92 Pa. 216, and cases there cited. He did not testify as to his own counsels, or to those of his fellow-jurors, or to any other matters which he was sworn to keep secret, but merely to the nature of the issue or question under investigation, and to the fact that the jury acted upon the testimony, and not upon their own knowledge or observation in making the presentment. If such testimony were not admissible it would be impossible, in most cases, to ascertain the sources of information from which a presentment was made; and, although the charge may be wholly groundless, originating in mere popular clamor, or in the malice of an unknown accuser, not only the accused, but the court itself, would be powerless to develop the facts; for the presentment, although made in good faith, may disclose nothing to indicate the source from which the information came. We can discover no rule of evidence, or of public policy, which would exclude the evidence of a grand juror in such case.

We are equally clear that the testimony of the witness was brought upon the record, under the exception taken at the hearing, according to the provision of the first section of the act of May 19, 1874, P. L. 219. The offer of the witness was to establish the matters alleged as grounds for quashing the indictment, and the testimony was in accordance with the offer. The only question is upon the sufficiency of the evidence, and of this there can be no doubt. The fact must therefore be taken as established, that the presentment was made upon the testimony of witnesses examined before the grand jury, and not upon the knowledge and observation of the grand jurors.

Criminal actions are usually instituted upon complaint, under oath, before a magistrate or other proper officer, upon which, if it appear that a criminal off ence has been committed within the jurisdiction, a warrant is issued and the defendant arrested and brought before the magistrate for a hearing. If, upon the healing, there be a probable case of guilt, the prisoner is held for trial in the court having jurisdiction of the offence. Whilst this is the usual method pursued in criminal procedure, there are certain exceptional or extraordinary modes of preferring criminal charges, well recognized in practice. These extraordinary modes of criminal procedure are very fully defined and set forth in the footnotes to Wharton’s Criminal Law, page 458, in a charge of the late Judge King, which has in a number of cases received the approval of this court.

Three exceptions to the general method of procedure are there recognized. The first of these is, “ where criminal courts, of their own motion, call the attention of grand juries to, and direct the investigation of, matters of general public import, which, from their nature and operation in the entire community, justify such intervention.” This power of the court, it is said, will only be thus exercised, however, in the investigation of general and public evils, such as great riots, general public nuisances, and flagrant vices ; it will not be applied in cases of ordinary crime.

The second exception is, “ where the attorney-general, ex officio, prefers an indictment before a grand jury, without a previous binding over or commitment of the accused.” This power is properly exercised where there is occasion for great haste in applying the machinery of the law, or where the exigencies of the case and the public interests may reasonably require such action to be taken. The procedure in such cases, however, is under the supervision of the court, and if the process and power is misapplied the court will vindicate itself in restraining its exercise.

The third exception is that which is originated by the presen sment of a grand jury. A presentment, properly speaking, says the learned judge, is the notice taken by a grand jury of any offence, from their own knowledge or observation, without any bill of indictment being laid before them at the suit of the commonwealth. This is the definition given in the Law Dictionary by Bouvier, and by Blackstone, 4 Bl. Com. 301, and is the definition recognized and adopted by this court.

It is true that in some of the earlier cases in the Federal Courts, and in some of the states, it has been held that it was within the province and power qf the grand jury to call witnesses, and to institute prosecution of their own motion, and the definition given by the late Dr. Wharton is therefore more comprehensive: Whar. Crim. Law, 212. But he admits that in Pennsylvania the law is now somewhat narrowed, § 455, and that the view which may be considered as accepted in the United States Courts, and in most of the states, is, that the grand jury may act upon and present only such offences as are of public notoriety, and within their own knowledge, such as nuisances, seditions, etc., or such as are given to them in charge by the court, or by the prosecuting attorney, but in no other cases without a previous examination of the accused before a magistrate: Whar. Crim. Law, § 457.

“In this state,” says Mr. Justice Ag-new, in McCullough v. Commonwealth, 67 Pa. 33, “ the power of the grand jury is more restricted, and the better opinion is, that they can act only upon and present offences 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, § 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, until the name of a prosecutor be indorsed on the bill of indictment. The usual course where a presentment is thus surreptitiously procured, and bill founded upon it, lias been to quash the indictment on motion, and lie-fore plea pleaded.”

The presentment therefore, as a basis for the indictment, was wholly insufficient, for the reason, that it was not found by the grand jury, upon their, own knowledge and observation.

It has been suggested however, that if the presentment of the grand jury was not authorized by law, it may be treated as a mere suggestion, by which the attention of the court was called to the commission of the crime, and that the district attorney having, with leave of the court, sent up an indictment, the proceeding may be sustained under the other exceptions to the usual mode of criminal procedure, already specified. As we understand the practice, the presentment of a grand jury is ex mero motu, and is rarely, if ever, presented in technical form. “ Upon such presentment, when proper, the officer employed to prosecute afterwards frames a bill of indictment, wlii eb is then sent to the grand jury, and they find it to be a true bill: ” 2 Hawk. PI. C., c. 25, § 1; Bouvier, 452. • Upon a presentment, the proper officer of the court must frame an indictment, before the party accused can be put to answer it : Story on Constitution, 657; Wh. Cr. Law, 212.

What was done in this case is just what is done in all cases of a presentment by the grand jury : the presentment was placed in the hands of the district attorney, by the court, with instructions to put it in the technical form of an indictment, signed by the commonwealth’s officer, for the formal action of the grand jury, and upon return thereof, the defendant was liable to process, and was required to plead.

It is certainly true, however, as we have said, that the district attorney in an exigency, or when the occasion seems to require, may prefer an indictment before a grand jury without a previous binding over or commitment, but this power is only to bo exercised under the circumstances stated for the public good, and then the proceeding is always under the supervision and control of tbe court. “In practice,” says Judge King, “ however, the law officer of the commonwealth always exercises this power cautiously — generally under the direction of the court, and never unless convinced that the general public good demands it.” “ It is to be exercised in the ordinary ease,” says Mr. Justice Woodward in Rowand v. Commonwealth, 82 Pa. 405, “under the supervision of tbe proper court of criminal jurisdiction, and in all cases its exercise is subject to their revision and approval. The action of the officer and the court could be brought here for purposes of review, only when the abuse of their discretion should be found to have been both manifest and flagrant. Cases can be conceived where the ends of justice would be defeated by the delay and publicity of a motion in open court for leave to send up an indictment, and in such cases it would be the duty of the prosecuting officer to act promptly, and upon his own responsibility. While, however, the possession of this exceptional power by prosecuting officers cannot be- denied, its employment can only be justified by some pressing and adequate necessity. When exercised without such necessity it is the duty of the Quarter Sessions to set the officer’s act aside.”

It is plain that the exigency of this case did not require, or even appear to require this extraordinary exercise of power, on the part of the district attorney. There was no emergency, no demand of haste, no effort to escape, not even any appearance of an escape; there was no public good to be subserved, indeed there was absolutely nothing to call for this unusual method of procedure, and it is not pretended there was. It is true that in this case the indictment was prepared and sent to the grand jury “ with leave of the court,” but the court upon being informed that the presentment was not made upon the knowledge and observation of the grand jury, and was therefore ho presentment at all, had a right to revoke that leave, and to quash the bill, which was done.

It was stated at the argument, that the indictment was sent to the grand jury with leave of one judge, whilst the order to quash was made by another judge of the same court; and the suggestion carries with it the intimation that the discretion of the court having been exercised by one judge, it was not an appropriate act of discretion for the other to set the previous action aside. It is sufficient to state in reply to this, that the record does not disclose the fact, that the orders were by different judges of the same court; and it would avail nothing, if it did, for this court takes cognizance of the orders, decrees, and judgments of a court of record as such, no matter how for the time being it may be constituted. Although the judges holding it may from time to' time differ, it is at all times the same court here. With the amenities and courtesies which may be supposed to be due between judges of the same court we have nothing to do. But there is not necessarily any conflict of opinion shown upon this record. The sending of the bill to the grand jury was undoubtedly right as the matter then stood, and the order quashing the hill was certainly right when the facts appeared. If the court in the exercise of its discretion had sustained this indictment, and brought the defendant to trial and conviction upon it, it is quite improbable that this court on a writ of error would have disturbed the judgment; it is only for a flagrant abuse of this discretion, as we have said, this court would interfere. But the same court which in the exercise of its discretion directed the indictment to be sent to the grand jury, upon being informed as to the illegality of the presentment, in the exercise of the same discretion, afterwards quashed the bill. We think that discretion was properly exercised, and

The proceedings of the Quarter Sessions are affirmed.

Mr. Justice Sterrett dissents.