State ex rel. Clagett v. James

327 S.W.2d 278

• Court: Supreme Court of Missouri
• Decided: July 13, 1959
• Docket: Nos. 47315, 47316
• Status: Published

Opinions

HYDE, Judge.

Prohibition to prevent the enforcement of orders of respondent authorizing Earl H. Schrader, Jr. (hereinafter referred to as defendant), to inspect and copy the minutes of the Grand Jury of Jackson County which found two indictments against him. Separate writs in each case have been consolidated.

Defendant, an Assistant Prosecuting Attorney of Jackson County, was indicted on a charge of soliciting a bribe of $2,500 for the purpose of secreting information concerning an alleged abortion and preventing any investigation or prosecution therefor; and was also indicted on a charge of perjury in testifying before the Grand Jury concerning the solicitation of the $2,500. In each case, defendant filed a motion for an order granting inspection of the minutes of the Grand Jury, stating the names of the witnesses endorsed on the indictments and saying that the inspection requested may obviate the necessity of taking depositions of these same witnesses. In each motion it was also alleged:

“2. Defendant has reason to believe and alleges that unauthorized persons were unlawfully permitted to be present by the Grand Jury while said witnesses were testifying and when the Grand Jurors expressed their opinions with respect to the inquiry by said Jury concerning this defendant and the alleged offense.

“3. Defendant has reason to believe and alleges that the evidence on which the Grand Jury returned the indictment against him herein was insufficient upon which to base such indictment and was illegal.

“4. Defendant desires, and is entitled, to inspect the minutes of the Grand Jury with respect to the testimony given by all of the above witnesses and the proceedings occurring during their examinations, in order to lay the basis for his contemplated motion to dismiss the indictment upon the ground that the evidence before the Grand jury on which it was based was insufficient or illegal.”

The order in each case stated: “It is hereby ordered that said minutes insofar as they relate to the testimony of * * * (names of witnesses stated) * * * and the defendant, and all proceedings which transpired during the course of their presence in the Grand Jury Room, or in connection with their testimony before the grand jury, be exhibited to defendant and his counsel, and that they be permitted to copy the same if they so desire.” The parties agree that it was intended by these motions and orders that inspection be made of both the reporter’s transcript of the evidence (Secs. 56.190 and 540.105) and clerk’s' minutes. (Sec. 540.100, statutory references are to RSMo and V.A.M.S. unless otherwise noted.)

Relator contends these orders violate the secrecy imposed by law on grand jury proceedings and call for production and inspection of matters not admissible in evidence; and therefore claims they exceed the jurisdiction of respondent. It should be noted that there is a difference between the secrecy requirements for witnesses testifying before the grand jury and those for grand jurors. Mannon v. Frick, 365 Mo. 1203, 295 S.W.2d 158, 163; Wigmore on Evidence, Secs. 2362-2363; 4 Wharton’s Criminal Law and Procedure 495, Sec. 1721; 24 Am.Jur. 867, Secs. 49-50. The oath of a witness (Sec. 540.110) is as follows : “You do further solemnly swear, or affirm, that you will not after your examination here, directly or indirectly, divulge or make known to any person or persons the fact that this grand jury has or has had under consideration the matters concerning which you shall be examined, or any other fact or thing which may come to your knowledge while before this body, or concerning which you shall here testify, unless lawfully required to testify in relation thereto.” Sec. 540.120 makes a violation of this oath a misdemeanor. There is, of course, good reason for imposing this secrecy upon witnesses at all times concerning all matters upon which no action is taken by the grand-jury (see 4 Wharton’s Criminal Law and Procedure 489, Sec. 1719; 24 Am.Jur. 865, Sec. 47) and also concerning cases, in which there are indictments, prior to the arrest of the defendant. See annotation, 127 A.L.R. 283. However, “when an indictment is found by the grand jury, the names of all material witnesses must be endorsed upon the indictment” (Sec. 545.070). Therefore, when the indictment is made public (Secs. 545.080, 545.090), that matter concerning which the witness was examined is made known as well as all witnesses knowing about it. Thereafter, these witnesses may be “lawfully required to testify in relation thereto.”

This was settled in Ex parte Welborn, 237 Mo. 297, 141 S.W. 31, 34, in which we said:

“It is earnestly insisted that considerations of public policy forbid the taking of the deposition of a witness who has appeared before the grand jury, and whose name is indorsed upon the indictment. Counsel invoke the old common-law rule in support of their position.

“One of the announced purposes of the common law in cloaking with secrecy the proceedings of the grand jury was the prevention of the subornation of perjury to meet the Crown’s evidence, and this is strongly urged upon our consideration. That was a part of a system which denied the defendant counsel, kept him in close confinement until the hour of trial, refused him the right to call witnesses, sent juries to jail for returning verdicts of acquittal, and which, in short, was devised to convict the accused rather than to try the truth of the charge against him. In many respects, including the feature now pressed upon our attention, the rule in England has been changed by statutes (6 & 7 Will. 4 c. 114, § 4; 11 & 12 Vic. c. 42; 30 & 31 Vic. c. 35) under which a criminal trial bears greater resemblance to a legal proceeding. * * *

“It is urged that since petitioner testified before the grand jury he cannot give his deposition without violating the oath he took as a witness before that body. The oath administered to witnesses before grand juries (section 5070, R.S.1909) binds them, among other things, not to disclose any fact concerning which they 'shall here testify, unless lawfully required to testify in relation thereto.’ It is obvious that if there is no other legal obstacle save the clause of the oath quoted, it does not prohibit the taking of petitioner’s deposition, provided his being compelled to give his deposition is equivalent to his being ‘required to testify.’ * * * These authorities and the ordinary and accepted meaning of the word ‘testify’ convince us that the oath taken before the grand jury constitutes no obstacle to the taking of petitioner’s deposition.”

It was pointed out in the Welborn case that our statutes require disclosure of the State’s witnesses in a criminal case by requiring them to be endorsed on indictments and informations and afford accused the opportunity to find out their testimony at a preliminary hearing or by deposition, “upon the theory that truth has nothing to fear from light.” (As to preliminary hearings see Secs. 544.270, 544.280.) It should also be noted that the requirement of endorsement of witnesses on the indictment was enacted in 1879 (see Sec. 1802, R.S. 1879) and that the disqualification of a person on trial in a criminal case to testify in his own behalf was not removed until 1877. (Laws 1877, p. 356; see also R.S. 1855, p. 1191, Chap. 127, Sec. 16, also p. 1577, Chap. 168, Sec. 6.) Thus we retained some of the common law system of criminal procedure, described in Ex parte Welborn, during the first half century of statehood and this may explain the strictness of our early decisions. Orfield, Criminal Procedure from Arrest to Appeal, pp. 349-350, 459-460. A more recent development is the enactment of provisions authorizing a stenographer or the official reporter of the circuit court to take down and transcribe evidence given before the grand jury. Secs. 56.190, 56.560, 540.105. This removes the objection noted in State v. Thomas, 99 Mo. 235, 262, 12 S.W. 643, 651, as to minutes “taken down by persons wholly inexperienced in reducing the language of others to writing,” disclosure of which “would lead to the grossest injustice to witnesses.” Although the reporter’s oath required by Sec. 540.105 does not contain the qualification as to being lawfully required to testify, Sec. 56.190 applicable to Class One Counties (Jackson County is in that class) does provide for an oath, before taking down testimony before the grand jury, that the stenographer “shall not divulge any testimony which he or she may have heard there, except to the prosecuting attorney or when lawfully required to do so by a court of record having jurisdiction in said matter.” Sec. 56.560 applicable to the City of St. Louis contains similar language. Thus the same requirements as to witnesses, considered in Ex parte Welborn, supra, also apply to stenographers. These provisions indicate that other uses of the stenographer’s transcript of the grand jury witnesses’ testimony are contemplated than the exclusive use thereof by the prosecuting attorney; and these provisions certainly weaken the authority of the earlier cases insofar as they indicate there should be no disclosure of any such testimony after the indictment and the names of the witnesses have been made public.

We have indicated in State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, 153, and State v. Brinkley, 354 Mo. 337, 189 S. W.2d 314, 335, that the court had discretion to permit the inspection of minutes of witnesses’ testimony before a grand jury, apparently meaning the stenographer’s transcript since these were both St. Louis cases and St. Louis has had such statutory authority for taking grand jury witnesses’ testimony since 1905 (Laws 1905, p. 51). Likewise, in State ex inf. Dalton v. Moody, Mo., 325 S.W.2d 21, we held that a grand jury transcript properly could be used in a quo warranto case on the issue of misconduct of the prosecuting attorney. In at least one state a person indicted may obtain a transcript of the testimony of witnesses before the grand jury as a matter of right. See Kentucky statute quoted in Turk v. Martin, 232 Ky. 479, 23 S.W.2d 937, 939; see also 23 C.J.S. Criminal Law § 956, p. 265; Rule 6(e), Federal Rules of Criminal Procedure, 18 U.S.C.A.; Pittsburgh Plate Glass Co. v. United States, decided June 22, 1959, 79 S.Ct. 1237, and cases therein cited. Respondent stated as the reason for his orders: “I believe a denial of defendant’s motions would even be an abuse of the Court’s discretion. This is said particularly in view of the fact that one of the alleged offenses was committed before the Grand Jury and that the other offense charged is closely allied thereto.” However, the question for our decision is not whether an order denying any inspection would have been an abuse of discretion or whether the order made was an abuse of discretion; it is instead a question of respondent’s jurisdiction to make the order he made. We recognize that there are important reasons for grand jury secrecy and that disclosure should be made only when, and to the extent, the ends of justice really require it; and as we hereinafter hold any parts of a transcript or minutes which show statements, opinions, actions or deliberations of any of the grand jurors must not be disclosed; neither should testimony as to matters not admissible in evidence. Nevertheless we cannot hold that respondent has no discretion under any circumstances to allow inspection by the defendant of any part of the stenographer’s transcript of the testimony before the grand jury of the defendant himself and the witnesses endorsed on the indictments against him. Therefore we must and do hold that respondent has jurisdiction to make orders for inspection of the transcript of the testimony of these witnesses and defendant or such parts thereof as he deems proper to meet the ends of justice.

However, we think the orders were too broad and in excess of jurisdiction in authorizing inspection as to “all proceedings which transpired during the course of their presence (defendant and the witnesses) in the grand jury room, or in connection with their testimony before the grand jury.” In State v. Grady, 84 Mo. 220, 224, this court reaffirmed the ruling in State v. Baker, 20 Mo. 338, 339, that it is “a general principle that no juror, grand or petit, can be heard to prove his own misconduct or that of his fellows.” See also State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, 82, and other Missouri cases so holding there cited; Orfield, Criminal Procedure from Arrest to Appeal, p. 167. This principle that no juror, grand or petit, can testify to prove any fact to impeach their verdict or finding and our other provisions for secrecy prevent disclosure of the minutes made of “all proceedings” during the presence of the witnesses in the grand jury room and especially of all proceedings “in connection with their testimony before the grand jury.” This goes far beyond the actual testimony of the witnesses and could include actions, opinions and even deliberations of the grand jury “in connection with their testimony before the grand jury.” Moreover, it could include examinations of persons whose names were not endorsed on the indictments against defendant and who would not be used as witnesses against him. Furthermore, even discovery in civil cases is limited to matters and facts that would be admissible in evidence. State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907; State ex rel. Thompson v. Harris, 355 Mo. 176, 195 S.W.2d 645, 166 A.L.R. 1425; State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383, 8 A.L.R.2d 1124; State ex rel. Bostelmann v. Aronson, 361 Mo. 535, 235 S.W.2d 384; State ex rel. Terminal R. R. Ass’n of St. Louis v. Flynn, 363 Mo. 1065, 257 SW.2d 69. This part of respondent’s order is certainly as broad as the one condemned in the Witthaus case (219 S.W.2d loe. cit. 390) as “too broad and all inclusive.”

The grand jurors’ oath is that “the counsel of your state, your fellows and your own, you shall truly keep secret.” Sec. 540.080. This obligation is emphasized by Sec. 540.310 providing that no grand juror “shall he * * * allowed to testify or declare in what manner he or any other member of the grand jury voted on any question before them, or what opinions were expressed by any juror in relation to any such question.” Sec. 540.320 provides : “No grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto.” However, this exception is made more specific by Sec. 540.300, which states the matters concerning which grand jurors may be required to testify; and it has been said that “the extent to which those common-law rules of exclusion has been relaxed, is to be measured by the terms of the statute.” State v. Thomas, 99 Mo. 235, 260, 12 S.W. 643, 651; State v. McDonald, 342 Mo. 998, 119 S.W.2d 286, 288. Although as indicated we think this rule has been relaxed at least as to pertinent parts of the evidence of witnesses endorsed on indictments, taken down by an authorized stenographer, our conclusion is that it is the intent of our statutes to keep secret the proceedings of the grand jury concerning which the grand jurors are specifically prohibited from testifying and that transcripts, notes and minutes cannot be used to disclose such matters.

Defendant refers to grounds 2, 3 and 4 of his motion hereinabove set out and says they were intended to lay a foundation for his motion to dismiss the indictments on the grounds that the evidence on which they were based was insufficient or illegal and that unauthorized persons were present in the grand jury room during its proceedings and deliberations. In State v. Grady, 84 Mo. 220, this court held that an indictment should be quashed when it was shown by testimony of the prosecuting attorney (not by members of the grand jury or its minutes) that it was found without having any evidence before the grand jury. However, it was further said if evidence was heard the grand jurors were the judges of its sufficiency because otherwise “it would result that the court would become the tribunal to indict as well as the tribunal to try the case.” See also State v. Shawley, supra, 67 S.W.2d loc. cit. 82. Defendant cites State v. Salmon, 216 Mo. 466, 115 S.W. 1106, but in that case the presence of the person complained of as unauthorized was admitted by the state. Some of our- cases have referred to New York decisions which are based on statutes permitting inspection of grand jury minutes for the purpose of enabling the accused to move to dismiss or quash the indictment. Sec. 313, Code of Criminal Procedure, McKinney’s Consolidated Laws of New York, Annotated, and also Sec. 952-t, thereof; for New York cases concerning this procedure see 23 C.J.S. Criminal Law § 956, pp. 266-267. The New1 York statutes authorize inspection when a motion to set aside is made on grounds specified in Sec. 313 with sufficient showing as to these grounds. Our statutes provide no such procedure and the policy of this state is against any tribunal except- the grand jury deciding the sufficiency of the evidence to justify an indictment if there is evidence before it. However, some testimony of witnesses ■ upon which the Grand Jury acted has been made available to defendant by the part of the court’s order, which wé have held to be within its discretion to make, and this will show whether there was any legal evidence before it. While evidence of the presence of unauthorized persons by persons other than grand jurors is admissible, this claim is not a valid ground for inspection of minutes made by the clerk of the Grand Jury, for the reasons hereinabove stated. Therefore, we hold that the part of the order for inspection of any transcripts or minutes beyond actual testimony of defendant and the witnesses endorsed on the indictments involved was in excess of the jurisdiction of respondent.

Nothing we have said herein is intended to indicate our views as to whether any part of the order of respondent herein, which we have held he had jurisdiction to make, was or was not a proper exercise of discretion. Our rule is discharged as to the part of respondent’s order for exhibition and inspection of the parts of the transcript containing the testimony of defendant and the witnesses endorsed on the indictments against him only; and is made absolute as to exhibition and inspection of all other minutes or transcripts or parts of transcripts of the Grand Jury’s proceedings.

DALTON, J., concurs in separate opinion filed. HOLLINGSWORTH, C. J., and LEEDY, J., concur and concur in separate concurring opinion of DALTON, J. WESTHUES, J., dissents. ■ EAGER, J., dissents in dissenting opinion filed. STORCKMAN, J., dissents and concurs in dissenting opinion of EAGER, J.