
    AS TO INSPECTION OF MINUTES OF GRAND JURY.
    [Common Pleas Court of Montgomery County.]
    State of Ohio v. Oliver C. Haugh.
    Decided, February 14, 1906.
    
      Criminal Law — Defendant Without Right to Inspect Minutes of Grand Jury — Or Stenographer’s Notes of Testimony before Grand Jury, Except — Discretion and Inherent Power of Trial Judge — Statutory Provisions.
    
    The court of common pleas is without power in this state to entertain a motion by the'defendant in a criminal prosecution to inspect the minutes of the grand jury or a transcript made by the official stenographer of the testimony taken before the grand jury; nor is there any discretion in the court to permit a disclosure of the proceedings before the grand jury except in the actual trial of the case, where the testimony of a witness is a matter of issue in determining the facts which are to be weighed by the jury.
   Brown, J. (orally.)

This matter comes before the court upon a motion filed by the defendant, which is as follows:

“Now comes the defendant, Oliver C. Haugh, by his counsel, and moves the court to grant him leave to withdraw his former plea of not guilty heretofore entered herein, and asks leave of the court to file a motion for an inspection of the minutes of the grand jury and the testimony taken before said grand jury in said case by the state of Ohio against Oliver C. Haugh. ’ ’

Upon the filing of this motion pro forma, an order of court and an entry thereon was allowed by which the former plea of not guilty was withdrawn and leave given to file the motion. This matter was argued by counsel. There was filed one affidavit with the original motion, in which counsel for the defendant, Haugh, stated that the defendant can not make the necessary preparations for a complete and adequate defense unless furnished with an inspection and a copy of the minutes of the testimony heard and taken down before the grand jury for the January term, 1906, upon which the indictments against said Oliver C. Haugh were founded and returned.

Counsel for the defendant, in his argument upon the motion, stated certain facts which he said would be admitted on the part of the state, and the prosecuting attorney, in his argument, stated certain facts which he said the defendant’s counsel would admit. There was no dispute as to the facts as stated by counsel in their respective arguments and these can, therefore, by the court be taken as true. The facts, therefore, are virtually agreed upon in the ease, and there being no dispute of fact, the entire question then becomes one of law.

It is contended upon the part of counsel for the defendant, Oliver C. Haugh, that they were in such a position by reason of there being no preliminary examination upon the question of the last three counts in the indictments, that they could not go to trial, for the reason that the defendant would not talk with counsel about the case • that when they approached the witnesses, they would decline to be interviewed, and that they were placed by reason of the conduct of the defendant and by reason of the action of the witnesses in the case so that they could not prepare their, defense for the trial, and, therefore, in the proper administration of justice that it was left to the sole discretion of the court, and that the court exercising its discretion, under all the circumstances, ought to grant, and the defendant was entitled to receive, an order of the court for an inspection of the testimony taken by the grand jury in order that the defendant might make a proper defense.

We may take these facts, as I have said, as admitted by the state, and consider the question as determined by the statutes of Ohio. This question has never been raised in Ohio in any court in so far as we are able to ascertain either by printed reports or by any other means.

The matter was contended for on the part of defendant’s counsel by reason of the statute which was recently passed in regard to the admission of the official stenographer at the session of the grand jury (Section 7195, Revised Statutes). That section provides that the official court stenographer of the county shall at the request of the prosecuting attorney take shorthand notes of the testimony and furnish a transcript of the same to the prosecuting attorney and to no other person; but such stenographer shall withdraw from the jury room before the jurors begin to express their views or give their votes on any matter before them. The stenographer shall take an oath to be administered by the court after the grand jurors are sworn, imposing an obligation of secrecy upon such stenographer to not disclose any testimony taken down or heard except to the jury, the prosecutor, or unless called upon in a court of justice to make disclosures.

Pursuant to this statute, John Collins, who is the official stenographer under the law, was appointed and took the oath prescribed therein, took all the testimony of the proceedings and witnesses before the grand jury, has made two transcripts of that testimony and delivered the same to the prosecuting attorney for use in his office, as admitted in the argument of counsel.

Now, it is contended that this being a matter of public record, that the court being in control of the grand jury and its proceedings, that the oath whereby the stenographer is not permitted to make public or to make known this transcript unless called on in a court of justice to make disclosures, really puts it within the discretion of this court, which had control of that grand jury, and of which the official stenographer is an officer, that, therefore it is sufficient for this court having such control, to compel the stenographer to make his disclosures in a court of justice. This is substantially the one point raised upon this question. Arguments of counsel in this case were very able and very exhaustive on the subject and very interesting upon both sides, showing that great thought and much time had been given to it, and since the defendant in this case is on trial for his life, the court has given especial attention to this subject and careful investigation, and whatever the result may be, it is fair to state that the court has endeavored to give every possible opportunity to the defendant in this case that is consistent with the law and the duties of. the judge sitting in the trial of the case.

It appears that this motion is customary and is often filed in the state of New York, where a similar code to that of ours is enacted, and that the motion is frequently granted as a matter in the discretion of the court. The first case cited by counsel for the defendant is the case of People v. Naughton, 38 How. Pr., 430, a decision rendered by a court of oyer and terminer, that is, a court to hear and determine criminal eases. It is called the court of oyer and terminer in New York state, which is the same as the court of common pleas, sitting as it does in the trial of criminal cases in this state. In the ease in question, it was determined by Judge Pratt, in 1870, that it was within the discretion of the court in that state to grant such a motion for an inspection of the minutes- and of a copy of the testimony taken before the grand jury and in possession of the district attorney which is the same as our prosecutor. In this case the court reviews the question quite thoroughly and the arguments of counsel are given in extenso. On page 435 it says :

“The power of this court to entertain and decide these questions can not be contradicted.
‘ ‘ The court of oyer and terminer is the highest court of criminal jurisdiction, and has power ‘to inquire by the oath of good and lawful men of the game county, of all crimes and misdemeanors committed or triable in such county; and to hear and determine all such crimes and misdemeanors.’
“This motion does not seek to review any prior determination made in the court of oyer and terminer, but to have the court act upon an indictment now pending therein.
“The grand jury is a constituent part of the court of oyer and terminer, and its proceedings are a part of the proceedings of the court of oyer and terminer. The court ‘inquires’ by the grand jury, and ‘tries and determines’ with the petit jury.
“It has been repeatedly held that when the grand jury is in session it is completely under the control of the court, and the court can at any time re-commit an imperfect finding, or may take measures, on the suggestion of a defendant, to determine whether twelve 'assented to the bill.
“If then, a defendant, while a grand jury is in session, can raise this issue and the court can determine it, why not at any subsequent time prior to trial, as the grand jury (as in this case they did) may have adjourned before the accused knew he was indicted ? That the right to raise the question is necessary to the protection of the innocent and is simple justice, 'needs only to be stated to appear. If the accused upon good cause shown may demand the list of witnesses examined, it follows that the court not only has the power but must make the order, ’ ’

Then the judge reviews the question:

‘ ‘ Suppose the grand jury were not sworn, or that the witnesses were not under oath, or that less than twelve concurred in finding a bill, or suppose the accused comes into court and offers to prove by the foreman that the indictment was never before the grand jury, that what purports to be the signature of the foreman is a forgery, are these not matters to be heard in this court, and is there any other tribunal before which they can be heard in the first instance, and may not the court resort to the minutes of the grand jury for evidence to determine them, or take any other course not in violation of the jurors’ oaths!”

This is all true in this case upon special pleas in this state and those questions are to be determined by authority of the court in this state.

“Abuses have become frequent in the grand jury system, and in many instances great injustice has been perpetrated 'upon individuals. Many indictments are found that are never brought to trial, many innocent persons are indicted, when if sufficient scrutiny had been observed an indictment would never have been found.
“Many cases are to be found where parties who have been defeated in a prosecution before an examining magistrate, have presented themselves before a grand jury, and upon a one-sided statement procured an indictment. ’ ’

It is not pretended that any power can control the grand jury in the performance of its duty, but the power should and does reside in the courts, and of which grand jurors are a constituent part, to inquire whether the grand jury has performed its duty or whether it has exceeded its power.

“Assuming that the court has ample power to decide the questions raised by the motion, the question is, shall the accused, upon these motion papers, have a list of the witnesses examined before the grand jury!”

The court reviews that and grants the motion for a list of the witnesses before the grand jury.

In this ease, the list of the witnesses is public property, a matter of public record and can always be obtained at the clerk’s office or from the prosecuting attorney’s office, and there never has been a refusal, or would it be lawful under the law Of this state to keep tlae defendant from obtaining a list of- tbe witnesses, and the name of the prosecuting witness is always endorsed, under the statute of this state, upon the indictment.

Then Judge Pratt, in People v. Naughton, supra, coming to the part of the motion as to the minutes, says, page 443:

“That part asking for copies of all minutes made in grand jury room when said indictment was found is denied, for the reason that the motion papers do not state facts sufficient to warrant such an order. They do not state wherein any of the proceedings of the grand jury were irregular, so the court can judge whether it is a matter competent for the defendant at this time to challenge or investigate, or wherein an inspection is essential to protect any right of the defendant, or wherein the nonproduction of the minutes will work an injustice, or that he can not more properly derive all the information he seeks from other sources. Before the court order the district attorney to produce any paper which he has deemed it his duty to withhold, the party seeking such an order must bring himself strictly within the laws. It may also be said that it does not appear from said motion papers but that all that appears on said minutes may be matters required by law to be kept secret.
“Neither does it appear that said minutes contain one item of matter to the possession of which the defendant is entitled, in order to prepare for trial.
“The court can not permit the said minutes to be used to disclose how any juror voted, or what was said by any juror during their deliberations, or to impeach a regular finding of a grand jury. It is only within certain restrictions that any inspection of the minutes can be allowed. The accused not having brought this branch of his motion within the rule, it is denied. ’ ’

That is probably the strongest case upon this point on the statutes of the state of New York.

But let us inspect the penal code, the code of» criminal procedure of the state of New York, to determine what the oath and what the proceedings of the grand jury are. ' Section 245 of the code of criminal procedure provides substantially the same oath that is provided for the foreman of the grand jury in this state. The oath as to secrecy is as follows: ‘ ‘ The counsel of the people of this state, your fellows’ and your own you shall keep secret, ’ ’ and there is no other reference, as it is under the statutes of this state wherein it is provided: “The counsel of the state, your own and your fellows’ you shall keep secret unless called on in a court of justice to make disclosures.”

This section of the penal code of New York to which I have just referred, is followed by some six or eight sections, which provide that the court, in charging the grand jury, shall read and explain. Section 265 reads as follows:

‘' Every member of the grand jury must keep secret whatever he himself, or any other grand juror may have said, or in what manner he, or any other grand juror, may have voted, on a matter before them.”
Section 266: “A member of the grand jury may, however, be required by any court to disclose the testimony of a witness examined before the grand .jury for the purpose of ascertaining whether it is consistent with that given by the witness before the court; or to disclose the testimony given before them by any person upon a charge against him for perjury in giving his testimony, or upon his trial therefor.”

That is substantially the law in this state. This section of the penal code or of the code of criminal procedure of the state of New York provides that if called upon in a court of justice to make disclosures, under the circumstances as explained in this section, a member of the grand jury may testify as to the testimony given before the grand jury for. those purposes, and it has always been so construed, and it has been the practice in this court, when called upon in a court of justice to make disclosures. That is, in the trial of the ease where the same questions arise as are provided for in Section 266 of the New York code, jurors may testify as to What took place before the grand jury in regard to the testimony of witnesses.

Now, let us see what further the New York statutes provide in order that we may determine this question.

The sections of the New York statutes which will be found in the general laws of the state of New York, Cumming & Gilbert’s Yol. II, page 1548, provide for the appointment of stenographers and typewriters, by the county judge — a large part of the statute is not necessary to be considered in determining this question. I will read from the latter part of paragraph 1 of the law in which it is provided that '‘ Whenever directed by the district attornéy,” said stenographer “shall have authority to take and transcribe the testimony given before the grand juries in said counties of Albany and Oneida, and, whenever required by the district attorney to attend upon and take and transcribe the testimony given at coroner’s inquests and the examination and trial of criminal cases, which said testimony so taken and transcribed shall be for the exclusive use and benefit of the district attorney of said counties, unless otherwise ordered by the court. ’ ’

Section 4 of this act, on page 1550, provides ‘' That it shall be lawful for any stenographer or clerk, duly appointed and qualified as hereinbefore provided, to attend and be present at the session of every grand jury impanneled in the county in which he is appointed, and it shall be his duty to take in shorthand, if appointed as a stenographer, and upon a typewriting machine, if appointed as such clerk, the testimony introduced before such grand juries, and to furnish to the district attorney of such county a full copy of all such testimony as such district attorney shall require, but he shall not permit any other person to take a copy of the same, nor of any portion thereof, nor to read the same, or any portion thereof, except upon the written order of the court duly made after hearing the said district attorney. All of the said original minutes shall be kept in custody of said district attorney, and neither the same, n.or a copy of the same, or any portion of the same, shall be taken from the office of said district attorney excepting as above provided,” that is upon the written order of the court and after hearing the district attorney. There is no such provision in the statutes of this state. The cases cited in support of the motion are all New York cases. The case of Eighmy v. People, 79 N. Y., 546, which is the report of the highest court in New York state, page 560— the decision rendered in that case was on a similar motion-«-

“The refusal of the court to compel the public prosecutor to furnish to the prisoner’s counsel the evidence before the grand jury was a matter resting in the discretion of the court, and is not the subject of review upon this writ of error,”

In People v. Molineux, 27 Misc., 60 (57 N. Y. Supp., 936), this matter was considered upon a motion for an inspection of the stenographer’s minutes of the testimony of the grand jury, and in a very extended decision rendered by Judge Blanchard, sitting in the court of general sessions of the peace, which is the same as the court of common pleas in this state holding a criminal term, it was decided, upon a motion and hearing, that it was right for the court to order an inspection of the minutes in that celebrated ease and directed that a copy be produced and given to the defendant. In New York the defendant is permitted to investigate such facts and determine whether there was evidence sufficient to warrant the finding of an indictment, which is not permitted under the laws of this state under any circumstances.

Judge Blanchard,“on page 63, says:

And the defendant’s counsel, in his moving affidavit, makes allegations which, in effect, charge that the indictment in question was found upon evidence that is insufficient in law to sustain it, and insists that the defendant should not be put to the expense, notoriety, and ignominy of a public trial without first being allowed an opportunity to ascertain whether the testimony before the grand jury"was sufficient to establish a prima facie case against him, in the eyes of the law, upon which he can be legally put to his defense. This contention of the defendant is sustained by abundant authority. If the indictment was found without sufficient legal evidence to sustain it, it is not an indictment in contemplation of law, and can not stand. Code o£ Criminal Procedure, paragraphs 256, 258.”

This is not a provision of the statutes of the state of Ohio. We have no such provision. But on reviewing the case solely from the statutes, resting it within the sound discretion of the court, Judge Blanchard granted the motion and directed that a. copy of the testimony taken by the grand jury should be delivered to the defendant, Molineux. '

In the case cited, People v. Bellows, 1 How. Pr. (N. S.), 149, Judge Brady, in passing upon the same question in regard to a bill of particulars and in regard to the list of witnesses and a transcript of the testimony, held that it was within the discretion of the court as indicated therein.

“A copy of the evidence before the grand jury upon which indictments were found should be furnished the accused when necessity therefor is shown to enable him to prepare for trial, and the matter is one resting in the discretion of the court.”

It certainly is resting within the discretion of the court, as explained by the statutes of' New York and solely within the discretion as I have read it to you as cited from the original sections of the statutes of New York which I have here.

It is contended further on the part of counsel for the defendant that the grand jury being a part of this court and being under the control of this court, that, therefore, where the statutes provide in the oath to the stenographer, as it does in the oath to the members of the grand jury, that they shall not make disclosures except when called upon in a court of justice to do so, gives this court the discretion to direct such testimony to be given. If the statutes of the state of Ohio provided that such testimony could be given after a hearing, and whenever the court should determine that the defense was required by reason of a peculiar state of facts, either that there had been no preliminary examination upon the subject, or that it was impossible for certain public reasons to obtain the testimony, then the court might very properly in this case, if it found the facts to be as stated, grant such a motion. But I hold that in this state there is no discretion in the court upon this subject, that the statutes provide that the testimony and the proceedings taken before the grand jury shall be kept secret, that no disclosures shall be made under any circumstances except, when called upon in a court of justice- to make disclosures, and that that does not mean in the. proceedings of this court in general but must be in the actual trial of a case wherein the testimony of a witness is a matter of issue in determining the facts which are to be weighed by the jury in the case that is being heard; that it would be a breach of the law if I should direct that this testimony should be taken from the prosecuting attorney, which was taken by one of its officers, appointed by the state, really a part of the prosecuting attorney’s office as an assistant; it saves the prosecuting attorney from taking down and writing out his notes of the testimony, as was formerly done. There was no J provision then and there is no provision now whereby we caul compel him to disclose what notes he takes. The mere fact ofjg this additional aid being given to the prosecutor should not cause the court to make that a public record open to the inspection of every person who was indicted or by his counsel, whether for ulterior motives or not, and if so ordered would warrant the prosecutor who must ask for the stenographer in not requesting the stenographer for the grand jury.

I have carefully considered this matter, and I must overrule the motion.

It is contended that the defendant, Haugh, will not talk to counsel. For what reason? If the defendant is insane and his counsel thinks so, there is a provision of the statute as to that (Section 7240, Revised Statutes). If his client will not assisL counsel for defendant, it is not the fault of the prosecuting attorney. There is no provision of the law by which'the court can assist. The counsel can take such proceedings as to them may seem proper and just. He may be insane or he may not. If counsel think he is iásane, they can take the section of the statute which provides for an examination, with which they are familiar. If not, they will have to take the consequences from the testimony in court. Of course it is an embarrassing position for counsel to be -placed in, but for this there is no appeal to the discretion of myself sitting as judge here and administering the law. The defendant has every opportunity in a case of this kind to make a proper defense and will be protected by the court. He stands innocent until proven guilty. Under all the circumstances, I feel that even if I had been authorized to grant it and had the discretion, I am not sure that I would grant the motion. At any rate, I have no power and the motion is, therefore, overruled.

Mr. Mattern: If the court pleases, as I understand, the court overrules the motion solely on the ground that under the law you have no right to even entertain the motion.
The Court: Yes, sir; that is the ground.
Mr. Mattern: To that we desire to reserve our exception because that is subject to review. If the court had simply held that it had the power—
The Court : If I held that I had the discretion and would not grant it, it could not be reviewed under the decisions of the courts, but I go further than that and say that I have no inherent power under the statute to grant the motion and, therefore, the motion is overruled, and it may so appear in the entry.

B. B. Nevin, Prosecuting Attorney, and E. G. Denlinger, for plaintiff.

Conrad J. Mailern and Harry F. Nolan, for defendant.

Mr. Mattern : To that we note our exception.
The Court: The plea of not guilty may be restored in the entry as provided by the statute.  