People ex rel. Hummel v. Davy

105 A.D. 598, 20 N.Y. Crim. 217, 94 N.Y.S. 1037

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1905
• Status: Published

Opinions

McLaughlin, J.:

In January, 1904, Charles F. Dodge was indicted by the grand jury of the county of Hew York for the crime of perjury committed in an affidavit used on a motion to procure an order setting aside a decree of divorce obtained against him by his wife. In January, 1905, the grand jury had under investigation a charge of conspiracy by Dodge and others, in unlawfully procuring the dissolution of this decree and the annulment of the wife’s subsequent marriage to Charles W. Morse, as well as the subornation of Dodge to commit the perjury for which he stood indicted.

The relator is an attorney and counselor at law of this State and as such had appeared for Dodge, and while these investigations were in progress was summoned to appear before the grand jury as a witness and bring with him certain books and papers relating to the business of himself and of his law firm. Before being sworn he presented .to the foreman of the grand jury a paper which set forth the fact that he was an attorney and counselor at law and that he refused to produce the books and papers called for by the subpoena upon the ground that they would disclose confidential communications between himself and his clients. As a further reason for such refusal the papers stated that the relator had heard that certain members of the bar were likely to be proceeded against by indictment on account of proceedings taken to set aside a certain decree of divorce with which he was professionally connected and that he did not know but., that the present proceeding might be directed against himself and that the production of the hooks and papers, might tend to incriminate him, concerning all of which he had taken the advice of counsel. After the foreman had read this paper, and before the oath was administered, the relator asked to be informed of the nature of the proceeding and the purpose of the investigation, in order that he might consult counsel and obtain their opinion as to whether or not the grand jury had any lawful right to proceed, or whether any matter was legally before it on which witnesses might he sworn and examined. This was refused and the relator was sworn as a witness in the case against Charles F. Dodge and others. The relator declined to answer many questions on the ground that they tended to disclose privileged communications between himself and client, and many others on the ground that the answers might tend to incriminate him, but he finally did testify that he was retained by Dodge; had received a counsel fee from some one; that a client of his had paid the •expenses of defending Dodge in extradition proceedings taken in the State of Texas, of which his firm had charge; that most likely he read an affidavit prepared in his office sworn to by Dodge to the effect that Dodge had supplied the evidence himself on which the decree of divorce had been granted to his wife; that, he knew Charles W. Morse; and that his office kept books which showed the receipts and disbursements of moneys which were regularly destroyed at the end of each year. Early in the examination and before the relator had testified to anything, except that he knew Dodge and had been retained by him as his attorney, he was informed specifically that the proceeding was to “ascertain what persons, if any, were privy to the commission of the crime of perjury by Charles F. Dodge, and what persons, if any, have conspired to deceive the Supreme Court * * * and to subvert the administration of the law,” and in response to an inquiry, the relator replied that he was fully informed by this statement as to the object of this investigation.

Before and after the relator appeared before the grand jury several other witnesses were subpoenaed, appeared and gave testimony bearing upon the subject-matter under investigation, and before any indictment was found the jury were instructed by the learned district attorney that if any indictment was found against the relator it must be based upon the testimony of witnesses other than himself. Three indictments were found against him. One charged him and others with conspiracy, and the other two charged him and another with subornation of perjury. They were consolidated in a motion to set them aside, on the ground that they were void because the grand jury had no jurisdiction to institute the investigation of which they were the result, and because the "relator had been compelled to be a witness against himself in violation of his constitutional rights. This motion was denied, and thereupon the relator applied for a writ of prohibition to restrain a justice of the Supreme Court assigned to hold Trial Term, Part 1, criminal branch of the Supreme Court, in which the trial had been or was about to be moved, and the People from trying him under the indictments, an alternative writ being granted pending the determination of the application.

I think the writ should be refused. So far as appears, the grand jury was regularly constituted. The jurisdiction of a grand jury to inquire into the commission of crime is not dependent upon a preliminary investigation before a magistrate. Section 252 of the Code of Criminal Procedure declares that a grand jury has the power and that it is their duty to inquire into all crimes committed or triable in the county and to present them to the court.

Nor is the jurisdiction dependent upon the district attorney calling the matter to their attention, for if any member knows, or has reason to believe, that a crime has been committed, which is triable in the county, it is his duty to declare it to his fellow-jurors, who are thereupon required to investigate the same. (Code Crim. Proc. § 259.) And it is made the duty of the district attorney to issue subpoenas for such witnesses to appear before the grand jury, other than those which he has produced before them, as they may direct. (Code Crim. Proc. § 609.) It has long been the law that a grand jury has full power to make an investigation and to present, by indictment, any person charged with crime, whether there has been a preliminary arrest or examination or not. (People v. Hyler, 2 Park. Or. Rep. 566.) The grand jury had jurisdiction to find the indictment, and it is regular and valid upon its face.

The only question, then, which remains to be considered is whether the permitting or compelling of the relator to appear before the grand jury makes it a nullity. If such fact makes the indictment irregular or defective only, it cannot be claimed that a writ of prohibition would lie to restrain further proceedings under it. A writ of prohibition only lies where there is a want of jurisdiction, or where a court or judge, or other tribunal, is proceeding in excess of the jurisdiction conferred. This we held in the recent case of People ex rel. Patrick v. Fitzgerald (13 App. Div. 339). In that case the court was careful to point out the restricted meaning of the phrase, “ contrary to the general laws of the land,” found in some text books and older English cases, and to say it meant nothing more than an excessive jurisdiction, and that the office of a writ of prohibition was not ‘to regulate erroneous rulings of a tribunal having jurisdiction of an action or proceeding, and that where jurisdiction exists, errors of law or procedure must be corrected by such appeal or other, review as the law affords. The remedy by writ of prohibition was once provided by common law against the encroachment of jurisdiction; The statute (Code Civ. Proc. § 2091 et seq.) does not change the character of the writ or permit any question, except of jurisdiction, to be tried in proceedings inaugurated by it. (Thomson v. Tracy, 60 N. Y. 31, 38.)

The jurisdiction of the court in which the motion to quasi* was made is not questioned. Both the court in which the indictment •was found and that in which the motion to quash was denied having jurisdiction "of the relator and of the subject-matter for which he stands indicted, it seems to me clear that a writ of prohibition does not lie, unless the fact that the relator was permitted or compelled to appear and testify before the grand jury which found the indictment deprived the court of the jurisdiction which it theretofore possessed. The question now before us is not whether the motion to set aside the indictment should have been granted, but is simply whether the fact that the relator gave testimony before the grand jury with respect to the matter for which he was subsequently indicted by that body makes the indictment — otherwise good — a nullity. It cannot be that his testimony has such effect, because whether the indictment be bad or not depends upon what the relator was compelled to disclose. Merely being compelled to appear in pursuance of a subpoena, and be sworn, is no violation of a constitutional privilege, for the witness must take the oath so that his assertion of privilege shall be made under the sanction of an oath. (United States v. Kimball, 117 Fed. Rep. 156.) He may testify exculpating himself, or the testimony which he gives may have no bearing upon the alleged crime, or to himself, in which case his lights have not been violated, nor a subsequently found indictment affected. (United States v. Kimball, supra; People v. Lauder, 82 Mich. 109 ; Boone v. People, 148 Ill. 440; People v. King, 28 Cal. 265.)

In People v. King (supra) the court said: “ So far as the motion was based upon the ground that the defendant had testified against himself before the grand jury is concerned, it is only necessary to say that we know of no rule of law which made it illegal for him to testify if he felt inclined to do so, nor do we know of any rule of law which makes the voluntary testimony of the defendant before the grand jury a ground for setting aside the indictment.” It is only where a person has been compelled to give testimony damaging to himself that the indictment is rendered bad and the court is required to set it aside. (People v. Singer, 18 Abb. N. C. 96; People v. Haines, 1 N. Y. Supp. 55.)

People v. Haines (supra), which is relied upon by the relator, recognizes that the same rule applies to investigations by a grand jury that prevails before committing magistrates or upon coroners’ inquests. Where a witness is subpoenaed and testifies before a coroner he may decline to testify to anything that may tend to incriminate him, and if he does not claim his privilege the testimony which he gives may be used against him on a subsequent trial for the crime then under investigation. (People v. Molineux, 168 N. Y. 333.)

It seems to me, therefore, that the propriety of setting aside an indictment because the person indicted has testified before the grand jury which found the indictment, depends upon whether he has been compelled to testify against his will to facts which tend to incriminate him. Whether the witness’ constitutional rights have been violated is a question of fact, and the determination of that fact by an inferior court may be finally decided to be improper or erroneous. In no sense does an erroneous determination deprive the court of jurisdiction or call for the issuance of a writ of prohibition restraining a subsequent trial. If the trial shall result in the conviction of the relator, the validity of the order refusing to dismiss the indictment may be determined on an appeal from the judgment of conviction and the relator’s rights thus preserved. (Code Grim. Proc. § 517.)

In view of the fact that the question of whether or not that order was proper may possibly come before this court, I refrain from discussing whether or not the relator was compelled to testify to any facts which tend to incriminate him. It is sufficient for the determination of the question now before us to say that nothing appears in the record which justifies the issuance of the writ of prohibition prayed for.

If I am correct in this, then it follows that the alternative writ should be vacated and the absolute writ refused.

O’Brien, P. J., and Ingraham, J., dissented.

Patterson, J.:

I am not at difference with Mr. Justice Ingraham in the abstract views he has expressed respecting the protection of a person accused of ci’ime in the enjoyment of his constitutional right, but I cannot assent to the proposition that such protection is to be afforded in the concrete case before us through the instrumentality of a writ of prohibition. That writ lies to restrain the action of a court without jurisdiction, or where there is an excessive exercise of jurisdiction (People ex rel. Patrick v. Fitzgerald, 73 App. Div. 344), or possibly where a person arraigned upon a criminal charge has no other remedy in the assertion of his constitutional right than a resort to it. In the present case, the ground upon which the alternative writ is sought to be sustained is that the indictment against the defendant Hummel is void, and that the court below is proceeding to try that defendant upon such void indictment.

' An indictment is a record of a court, and it imports absolute verity Until properly impeached. (People v. Hulbut, 4 Den. 133.) Here the indictment is regular on its face and in form as required by law, 11 is attacked on extrinsic grounds. It is true that the defendant’s name is indorsed on the indictment as a witness, but that does not of itself indicate invalidity. There are two methods of impeaching an indictment — one by demurrer, where the grounds for attacking it appear upon its face; and the other by motion to quash, where the invalidity must be shown by extrinsic facts or circumstances. There is no method by which the proceedings of a grand jury can be reviewed, except by motion to dismiss an indictment or in arrest .of judgment. (People v. Dimick, 107 N. Y. 15.) The defendant Hummel has availed himself of the right to move to dismiss the indictment against him, on the ground that he was compelled to appear before the grand jury and be sworn as a witness and to give testimony in violation of section 6 of article 1 of the Constitution of the State, which provides that no man shall be compelled in any criminal case to be a witness against himself. The motion was denied. What took place before the grand jury was made known to the court on the motion thus made to quash the indictment, and it appears in the record that the justice of the Supreme Court, before whom the motion was made, examined the record of the testimony given by the defendant Hummel before the grand jury, and reached the conclusion that such testimony was not obtained by compulsion or in violation of the constitutional provision protecting a person from being compelled in a criminal case to be a witness against himself. There can be no doubt of the jurisdiction of the Supreme Court to entertain, pass upon and decide that motion. Therefore, that court was not acting without jurisdiction, nor did it exceed its jurisdiction. Thus far, then, we have an indictment which imports verity, a motion made to quash it regularly brought before the court, duly considered and definitely decided.

It is said, however, that no remedy by way of motion existed, because of the provision of section 313 of the Code of Criminal Procedure, which does not provide for a motion to quash an indictment in such a case as this. It must be conceded that the section does not so provide. It says in express words that ah indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases, but in no other: First. When it is not found, indorsed and presented as prescribed in sections 268 and 272 of said Code. Second. When a person has been permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, except as provided in sections 262, 263 and 264 of said Code. If discussion of the subject ended there, there might be ground for applying for the extraordinary writ of prohibition, but it does not end there. The matter has received full and careful consideration by the Court of Appeals, and it has beeii decided that, notwithstanding the exclusive provision of section 313 of the Code of Criminal Procedure, a motion to quash an indictment will be entertained and must be .heard, where it is claimed that a party has. been deprived of his constitutional right by a grand jury. (People v. Glen, 173 H. Y. 400.) In that case, reviewing proceedings of a grand jnry, so far as pertinent, the court said: i: Our courts have also always asserted and exercised the power to set aside indictments whenever it has been made to appear that they have been found without evidence, or upon illegal and incompetent testimony (Citing cases). This power is based upon the inherent right and duty of the courts to protect the citizen in his constitutional prerogatives and to prevent oppression or persecution. It is a power which the Legislature can neither curtail nor abolish, and, to the extent that legislative enactments are designed to effect either of these ends, they are unconstitutional. The broad application of these principles to the case at bar is simple. So far as said section 313 is intended to regulate only matters of procedure which involve no constitutional rights, it is valid and must be obeyed by the courts; but to the extent that it may destroy, curtail, affect or ignore the constitutional rights of a defendant, it has no force and is void.”

Thus the court superadded to the provisions of section 313 of the Code of Criminal Procedure another ground for moving to quash an indictment, namely, that the defendant had been deprived of his constitutional right. There is the remedy afforded. In the present case, a motion being before the court and having been passed upon by it, a determination upon the subject has been pronounced. It was made by a court of competent jurisdiction after hearing evidence relating to the matter, and it passed upon the facts alleged by the defendant in impeachment of the indictment. Thus we have a judicial declaration that the indictment is valid and not void. The only method by which that decision can be reviewed is by appeal. (Code Grim. Proc. § 515.) The writ of prohibition is hot one of error or review, and the defendant is not without a remedy for it is provided by section 517 of the Code of Criminal Procedure that any actual decision of the court in an intermediate order forming part of the judgment roll may be reviewed on appeal from a final judgment of conviction after indictment — and such has been the practice. In the Glen case, above referred to, the question of the defendant therein being deprived of his constitutional right before the grand jury, which had been raised by motion in the trial court, was brought up on appeal from a final judgment, thus showing what the practice is.

In my opinion, therefore, the defendant is not entitled to á writ of prohibition, and the proceedings should be dismissed.