
    Crocker vs. The State.
    Grand Jub.it. Secrecy. The reason*of the injunction of secrecy in the oath* of the grand jury is one of public policy — namely—that the evidence produced before them may nbt be counteracted by subornation.
    SAME. Witnéss — Competency. But if a witness, who is examined before the grand and petit juries, give contradictory testimony, and is indicted for per-’ jury Committed therein, the members of the grand jury are competent witnesses to prove the contradiction. 4 Bl’. Com. 126, n. 4.-
    Crocker was indicted by the grand jury of McMinn, at April term, 1837, of the circuit court of that county, for a perjury assigned to have been committed in giving testimony before the same grand jury, at the same term, upon a bill of indictment, preferred against Hiram K. Tut-k, charging him-with an assault and battery upon Crocker, with intent to com-' mit murder in the first degree. On the trial of Crocker, before Keith, Judge of the third circuit, and a-jury of Me-Minn, at July term, 1837, the accusation against Turk being, still depending, the attorney general', Frazier, offered several of the grand jurors, by whom the bill of indictment against Turk, as well as that against Crocker, had been found-as witnesses to prove what had been sworn by Crocker before them on the bill against Turk.
    The counsel for Crocker objected to the swearing of them as witnesses on the ground that the prosecution against Turk was still pending.- The objection was overruled, the court observing, that it would come, if at all, more properly from-the jurors offered as witnesses, than from the defendant. The-first juror offered as a witness thereupon made the objection, and the defendant, by his counsel, claimed the benefit thereof. The attorney general waved the right of the -state to prosecute the jurors for any disclosures they might make as-witnesses in this case. To this waver the defendant’s counsel objected,- on the ground that the'defendant was prosecutor against Turk on the indictment upon which he bad given-evidence before the grand jury.- The court overruled the objection, and stated to the juror offered as a witness, that he might proceed to give testimony of the facts sworn by Crock-er before the grand jury. The testimony was heard, arid Crocker was convicted, and a rule for a- new trial having been discharged, and judgment pronounced against Crocket, he appealed, having filed his bill of exceptions, stating the evidence at large, and excepting to the opinion of the court in allowing the attorney general to wave the privilege of the grand jury, and requiring the jurors, as witnesses, to disclose the testimony given before them as grand jurors, by the defendant on the indictment against Turk.
    John H. Crozier and Thos. C. Lyon, for the plaintiff in error,
    argued, that grand jurors were bound by their oath to keep secret what transpired before them in the grand jury room. Formerly, if grand jurors disclosed the evidence on part of the state, they became accessaries to the offence, if felony, and if treason, principals, and at this day it is in general a high misprision. I Chit. Crim. Law, 317; 4 Bla. Com. 126; Roscoe on Ev. in Crim. Ca. 149; and Russell on Crimes, &c. &c.
    They said they did not contend that a witness who has committed perjury before a grand jury cannot be indicted, but that it cannot be done until the matter about which he testifies is finally disposed of; and that in this they were supported by the law, heietofore referred to, and the following reasons. .
    1. Every prosecution of the kind must be based upon the criminality of the grand jury. We have seen that the oath they take imposes on them the injunction of secrecy, this injunction lasts until after the trial of the defendant, because the reason of the injunction is, to prevent the defendant from suborning witnesses to contradict the testimony of the state, and by these means establish his own innocence. Every grand juror, then, who discloses the testimony on the part of the state, before the reason for which the injunction of secrecy was imposed ceases, is not only guilty of a high misprision, but also commits moral perjury. Will courts-of justice tolerate crime in one individual, or set of individuals, for the purpose of detecting and exposing guilt in another? To recognise the converse of the old maxim, “Do not evil that good may come,” would sap the very foundation of all morals and civil government, yet we think ,it has been clearly done in the present case.
    
      
      2. No injury could result to public Justice from a postponement of tbo prosecution of one who swears falsely before a grand jury, until after the cause is tried, but great evils might arise out of a contrary course. The powerful induce-ment that would be held out to defendants to prefer charges of perjury against the principal witnesses on the part of the state, and to support those charges by the testimony of ardent and zealous friends, or those who could be approached by rewards, would finally lead to cross indictments in almost every criminal case.
    3. The testimony delivered before the grand jury not being controlled by persons of legal learning, must necessarily be vague and loose. Impressions and hearsay must frequently be taken for positive assertions of the witnesses own knowledge; this might probably he altogether explained, guarded by the astuteness of counsel and watchfulness of the presiding judge on the trial.
    4. No authority has been produced of any analogous case having occurred, either in the United States cr England* The total absence of authority, where the material for prosecutions of this kind must have frequently existed, is a strong reason against the legality of this course. A case is mentioned in a note in 4 Blaekstone, Í26, where a «rand juror secretly disclosed to the presiding judge that a witness had sworn directly contrary on the trial to what lie had testified, before the grand jury, and the witness was indicted for perjury, and convicted. In this case, however, the reason of the law imposing secrecy on the grand jury had ceased, for as the trial was progressing at the time the disclosure was made the matter about which the witness was testifying, must have been disposed of before he could have been tried and convicted for the perjury.
    Geo. S. Yerger, Attorney General for the state,
    insisted that the principle that grand jurors are not to reveal what takes place in the grand jury room is one of policy; it was es’ablished to prevent subornation of perjury, and is a privilege in favor of the government, which, like any other privilege, may be waved, 4 Blk. Com. 126, note 4; Chit* Cr. Law, 260.
    
      June 16.
    This privilege does not incapacitate the juror,'and he is tiotf from the mere fact of being a juror, rendered incompetent. No writer upon evidence, in treating of the different things which render a witness incompetent, as interest, infancy, want of legal discretion, &c., ever dreamed of a grand juror being rendered incompetent by his oath.
    All the cases which can be cited, where the juror’s testimony was refused, were between individuals, where the government had not waved the privilege, until which the juror was privileged from swearing.
   Turley, J.,

delivered the opinion of the court.

The prisoner was convicted of the crime of perjury upon the the testimony of several members of the grand jury, and it is now assigned as cause of error that grand jurors are incompetent witnesses to prove facts deposed to before them.

It is unquestionably true that grand jurors are bound by the-terms of their oath not to disclose what may transpire before them, and if they transgress in this particular they are fine-able; but there can be no doubt that this required secrecy is not intended to secure a guilty witness from punishment for' the crime of perjury if committed, but to secure a correct administration of justice, and to prevent the evidence produced before the grand jury from being counteracted by subornation of perjury on the part of the defendant. It is for reasons of public- policy then, that grand jurors are prohibited from disclosing facts deposed to before them; but if public policy or justice to an individual likely to be injured by the perjury of a witness, requires that it should be done, the courts must have the power of releasing the jurors from the obligation imposed on them by the law, and receiving their testimony, or be the means of working injustice to those under their protection.

It accordingly has been held that when a witness examined on the trial swears directly the reverse of the evidence given before the grand jury, they are at liberty to state this circumstance to the judge, who may direct him to be prosecuted for perjury on the testimony of the grand inquest, 4 Blackstone, 126, n. 4. And can any one doubt that if a wit-aess be swearing away the life or liberty of an individual, and it can be proven by a grand juror that there is a direct and palpable contradiction in his testimony, detailed before the grand jury and petty jury that he shall be heard? Surely not. If then the court have the power, at their discretion, to examine grand jurors as to facts which may have transpired before them, there is an end of the question; — for it being matter of discretion, the exercise of it cannot be assigned for error in a revising tribunal.

It is unquestionably a delicate discretion, and ought not to be exercised except in those cases where it is necessary to a correct administration of justice, either in punishing the guilty or protecting the innocent. But of the propriety of its exercise, the court below must judge, and judge exclusively, for it is impossible in the nature of things for a court of errors to review its decision.

Judgment affirmed.  