
    PEOPLE v. GUILE.
    (Steuben County Court.
    April 7, 1911.)
    Criminal Law (§ 627%)—Trial—Inspection of Minutes of Grand Jury-Grounds.
    The sole purpose for which the minutes of the grand jury may be inspected is to permit accused to move to set aside the indictment under Code Cr. Proc. § 313, requiring it to be set aside when not found, indorsed, and presented as prescribed by statute, and when a person has been permitted to be present during the session, and one' indicted for rape was not entitled to inspect the minutes of the grand jury on the ground that a former grand jury before which the same witnesses testified failed to find an indictment, so that the second indictment must have been found upon insufficient and illegal evidence.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1431; Dec. Dig. § 627%.] .
    Orton Guile was indicted for second degree rape, and he moved to inspect the minutes of the grand jury.
    Motion denied.
    James O. Sebring and W. S. McGreevy, for the motion.
    E. C. Smith, Dist. Atty., opposed.
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BURRELL, J.

The defendant was indicted by the grand jury of the county of Steuben, on the 5th day of January, 1911, for the crime of rape in the second degree; the case having been sent to this court for trial on January 14, 1911, and the defendant now seeks to inspect the minutes of the grand jury, containing the evidence upon which this indictment was found.

There was no preliminary examination had prior to the action of the grand jury, but the main ground urged by counsel why this motion should be granted is that the matter was presented to a former grand jury which failed to find an indictment. It appears that the district attorney subsequently obtained an order directing the resubmission of the case to another grand jury, which resulted in this indictment. The district attorney having informed the court by affidavit that he had and was able to produce additional evidence showing the guilt of the defendant, and the counsel for the defendant claims that the same witnesses were sworn on the resubmission of the case as were sworn on the first submission, and, arguing from that, claim that no additional evidence was presented to the second grand jury, and that if the evidence was insufficient in the first instance to find an indictment that the evidence must therefore be insufficient now to sustain this indictment, and the moving affidavits allege that they are of the opinion that the indictment herein was found upon insufficient and illegal and incompetent evidence.

The proceedings of the grand jury have from time immemorial been hedged around with secrecy, and even after the introduction of a stenographer into the work of the grand jury it was followed by an enactment making it a misdemeanor for him to disclose any of the evidence given before the gprand jury. It is thus shown that at every step the Legislature has intended to preserve inviolate the secrecy of the grand jury proceedings.

In the case of People v. Steinhardt, 47 Misc. Rep. 252, 93 N. Y. Supp. 1026, in an exhaustive review of the law governing a motion of this character, the court says:

“Upon what grounds, then, shall the court, having in view the long-established principle of secrecy, and the reasons upon which it is grounded, disclose this testimony to the defendant? It is suggested that the power should be exercised to enable a defendant to prepare for trial. The fundamental rule governing discovery in civil actions is that it must be confined to facts which are material to the applicant’s cause of action or defense, and that it does not enable him to pry into his adversary’s case, or find out the evidence by which that case will be supported. Pomeroy’s Equity Jur. vol. 1, § 201. * * * Thus the practice in civil causes affords no analogy to support the claim that the prosecution should be required to disclose to the defense the evidence upon which it expects to prove the charge made in the indictment. =:= * <= if the testimony is to be disclosed to enable the defendant to prepare for trial, the right of inspection follows as a matter of course, and the principle of secrecy preserved in our statutes is swept away by judicial fiat. The only substantial ground upon which a motion of this character can be entertained is to enable the defendant to move to set aside the indictment upon one or more of the grounds permissible by law. This was the conclusion reached by Recorder Smyth in People v. Jaehne, 4' N. Y. Or. R. 161, and People v. Richmond, o N. Y. Cr. R. 97.”

In Re Montgomery, 126 App. Div. 72, 110 N. Y. Supp. 793, the court said:

“Since the passage of the act of 1885, such motions have been made and granted with more and more frequency, and a practice seems to have grown up in the Court of General Sessions to grant such motions when there has been no preliminary examination, which practice seems to be based upon a decision made in that court in 1889, in People v. Molineaux, 27 Misc. Rep. 60, 57 N. Y. Supp. 936. That case cites People v. Naughton, supra [38 How. Prac. 430], in which, although there had been no preliminary examination, the motion was denied. This question was carefully considered in the Supreme Court, Criminal Part, by Mr. Justice Kenefick, in People v. Steinhardt, 47 Misc. Rep. 252, 93 N. Y. Supp. 1026, where the cases were examined, who said: ‘So we are confronted with the proposition' whether the ignorance of the defendant as to the testimony upon which the grand jury acted and his belief, or, to put it more exactly, his surmise, that it is insufficient in law, furnishes a basis for the exercise of the judicial discretion to permit an inspection of the minutes. This position seems to me utterly indefensible, yet it is not surprising that it should be seriously maintained here, for such seems to be the rule laid down in the Molineaux Case, 27 Misc. Rep. 60, 57 N. Y. Supp. 936. If that proposition holds, true, then the disclosure of the testimony becomes substantially a matter of right, because there is no case in which the defendant could not furnish the same basis for the court’s action. It has been suggested that the initiation of the charge before the grand jury without a preliminary hearing before a magistrate is an important, if not controlling, circumstance in granting motions of this character. I cannot conceive why it should be.’ ”

It is held that the sole purpose for which the inspection can be granted is to enable the defendant to make a motion to set aside the indictment for the reasons assigned in section 313 of the Code of Criminal Procedure, and as now settled by People v. Glen, 173 N. Y. 395, 66 N. E. 112; People v. Sexton, 187 N. Y. 495, 80 N. E. 396, 116 Am. St. Rep. 621. To the same effect are the cases of Matter of Baldwin, 24 N. Y. Cr. R. 137, 121 N. Y. Supp. 86; People v. Guenther, 24 N. Y. Cr. R. 133, 121 N. Y. Supp. 89; People v. Coney Island Jockey Club, 24 N. Y. Cr. R. 522, 123 N. Y. Supp. 669.

In the case at bar the defendant claims that he believes that incompetent evidence was offered before the grand jurjq but fails to state facts sufficient in the moving papers to warrant the order asked for. He does not state wherein any of the proceedings of the grand jury were irregular, so that the court can judge whether it is a matter competent for the defendant at this time to challenge or investigate, but mainly relies on the fact that the case was presented to a former grand jury which failed to find an indictment, and, the case subsequently having been presented to a second grand jury with the same witnesses, that there must necessarily have been insufficient evidence on which to base an indictment the second time. There is no force in that contention to my mind, for even with the same witnesses much additional evidence might be brought out on a second investigation that was not brought out on the first one, additional facts might have come to the knowledge of the district attorney that could be proven by the same witnesses and which he was not aware of on the first presentation, and a mere supposition or surmise that such was not the case is insufficient on which to grant the order asked for.

Motion to inspect the minutes of the grand jury' is denied.  