The People agt. Briggs. In Com. agt. Knapp (9 Pick., 497), WILDE, J., said: "A list of the witnesses has never been refused in a case of this kind" (See, also, People agt. Naughton, 7 Abb. Pr. [N. S.], 428). Third. When the proceeding is to attack the record directly by motion to set it aside, instead of collaterally, the evidence of grand jurors is competent to show the irregularity (People agt. Shattuck, 6 Abb. N. C., 35; People agt. Hulbut, 4 Denio, 136). "It was at one time supposed that a grand juror was required by his oath of secrecy to be silent as to what transpired in the grand jury room; but it is now held that such disclosure, wherever it is material to explain what was in issue before the grand jury, or what was the testimony of particular witnesses, will be required" (Wharton's Crim. Ev. [8th ed.], sec. 510). "The oath of the grand juror does not prohibit his testifying to what was done before the grand jury when the evidence is required for the purposes of public justice or the establishment of private rights" (Burnam agt. Hatfield, 5 Blackford [Ind.], 21). "The, oath of the grand juror is no legal or moral impediment to his solemn examination, under the direction of a court as to evidence before him, whenever it becomes material to the administration of justice' (State agt. Broughton, 7 Iredell [N. C.], 96, 100). In People agt. Shattuck (6 Abb. N. C., 34-36) the court, on motion to set aside the indictment because not found by twelve grand jurors, said: "The motion was opposed upon the grounds that parol testimony could not be given to impeach the action of the grand jury; that the indictment was a record and imported absolute verity, and that no member of the grand jury could be sworn to disclose their deliberations. These objections apply to a case where it is sought to impeach the record in some collateral proceeding; but this is a direct motion before the court, in which the record remains, to have it set aside as void or erroneous. The accused is protected by the bill of rights and cannot be held to answer for a capital, or otherwise infamous crime, unless on presentment The People agt. Briggs. or indictment of a grand jury. That grand jury must be a legal grand jury, and the vote of twelve at least of the body must concur in the finding of a bill, otherwise one cannot be found. "When it is suggested to the court that an irregularity or error in the respect now urged had occurred, it is consistent with the general superintending power and duty of the court that a proper inquiry should be instituted in order that the evil or wrong may be arrested (Commonwealth agt. Smith, 9 Mass., 110; Low's Case, 4 Greenl., 439; People agt. Strong, 1 Abb. Pr. [N. S.], 244). "Now, of what service would this inquiry be to the accused or to public justice unless grand jurors could be called upon and testify as to the vote, the concurrence, which is of so essential and vital importance? "The inference, from the fact that the grand jury have found and presented an indictment, is that it was so found by the concurrence of at least twelve of the number of that body. It is no state secret, nor is it a part of their counsel, which each member has been sworn not to divulge. If it was, then they could never disclose the fact that an indictment had been found. How each one voted, or what each one said during their deliberations, are matters that can never be disclosed, for upon the inviolable secrecy which the law has imposed as to these particulars depends, in a great degree, the efficiency and independence and integrity of the grand inquest. It is of necessity that some grand juror must be called upon to testify as to whether a vote was taken and the result, else the investigation as to those facts would be futile." In Commonwealth agt. Mead (12 Gray, 170, 171) the court, after considering the rule that whatever affects the action of grand jurors so far as their vote and personal conduct is concerned cannot be disclosed, proceeds: "But when these purposes (the finding of an indictment and arrest of the accused) are accomplished the necessity and expediency of retaining the seal of secrecy are at an end. Cessante ratione, The People agt. Briggs. cessat regula. After the indictment is found and presented and the accused is held to answer, and the trial before the traverse jury is begun, all the facts relative to the crime. charged and its prosecution are necessarily opened, and no harm can arise to the cause of public justice by no longer withholding facts material and relevant to the issue merely because their disclosure may lead to the development of some part of the proceedings before the grand jury. On the contrary, great hardships and injustice might often be occasioned by depriving a party of important evidence essential to his defense by enforcing a rule of exclusion, having its origin and foundation in public policy, after the reasons on which this rule is based have ceased to exist." "The case at bar furnishes a good illustration of the truth of this remark. No possible injury to the interests or rights of the government, that we can see, could happen by a disclosure of the testimony given by the witness before the grand jury which was excluded by the ruling of the court. Certainly none has been suggested by the learned attorney for the commonwealth. On the other hand it is clear that the rights of the accused might be greatly affected and his peril much increased if he can be shut out from showing the fact that an important witness against him is unworthy of credit, or that his testimony before the jury of trials is to be taken with great caution and doubt, because on a previous occasion, when called to testify on oath, he had given a different account of the same transaction from which he has stated in his evidence at the trial. In the absence of a binding authority on this point we think the exclusion of such evidence is not sanctioned by any rule of law or sound principle of public policy." "There is no principle of law or rule of policy which, in such a case, ought to exclude them. It is entirely different from where they are called upon to impeach a.verdict on the ground of their own misbehavior or that of their fellows" (Follansbee agt. Walker, 74 Penn. St. R., 309). The People agt. Briggs. "On no sound principle can it be said that a witness who has testified before a grand jury shall be permitted to claim that his evidence was a privileged communication so that it shall not be shown, under the direction of the court, whenever it becomes material in the administration of justice. It is material when the evidence is necessary to protect public or private rights" (Gordon agt. Commonwealth, 4 Vir. L. J., 464 [Supreme Court, Penn.]). In this case the court (pp. 467-469) said: "If the witness be incompetent for the purpose offered it must be by reason of public policy. The question, to its full extent, does not appear to have been ruled by this court. As the rule was held at an early day he would be incompetent. For a long time, however, the courts have gradually been modifying its strictness and manifesting a determination to distinguish between the character of the evidence offered. The juror may be a competent witness for some purposes and not for others. Thus, in Sykes agt. Dunbar (2 Wheat Selw. N. P., 1091), one of the grand jury, by whom a true bill had been found, was held competent to testify as to who was the prosecutor, although it was contended he could know the fact only from the testimony which had been produced before him in his character as a grand juror, and which it was claimed he was bound not to disclose. This case was cited with approbation in Huydekoper agt. Cotton (3 Watts, 56), and the competency of a grand juror to testify as to who was the prosecutor affirmed. In this case the part of the grand juror's oath, ‘the commonwealth's counsel, your fellows and your own you shall keep secret," was considered and a reasonable construction given to it. Substantially, it was said, the oath and whole proceeding before a grand jury was not intended to protect the innocent witness and juror, but to punish the guilty party. It should not be so construed as to punish the innocent or obstruct the due course of justice. On no sound principle can it be said that a witness who has testified before a grand jury shall be permitted to claim that his evidence was a privVOL. LX 4 The People agt. Briggs. ileged communication, so that it shall not be shown, under the direction of the court, whenever it becomes material in the administration of justice. It is material when the evidence is necessary to protect public or private rights. It must be conceded that the rule shall not be carried so far as to conflict with the juror's oath. He shall not testify how he or any member of the jury voted, nor what opinion any of them expressed in relation thereto, nor to the act of either, which might invalidate the finding of the jury. His action and the action of his fellow-jurors must be shown only by the returns they make to the court. What a witness has testified to before them is quite another matter. A witness may be indicted for perjury for false swearing before a grand jury, and grand jurors are competent witnesses to prove what he swore to before them (1 Whar. Am. Crim. Law, sec. 508)." "It is said in 1 Wharton's Law of Evidence (sec. 601): 'It was at one time supposed that a grand juror was required by his oath of secrecy to be silent as to what transpired in the grand jury room; but it is now held that such evidence, whenever it is as material to explain what was the issue before the grand jury, or what was the testimony of particular witnesses, will be required.' This conclusion appears to be sustained by numerous authorities, among which may be cited Thomas agt. Commonwealth (2 Robinson [Va.], 795); State agt. Offnutt (4 Blackf., 355); State agt. Fassett (16 Conn., 457); Commonwealth agt. Hill (11 Cush., 137); State agt. Broughton(7 Iredell, 96); Commonwealth agt. Mead (12 Gray, 167); Way agt. Butterwith (106 Mass., 75). "The case of Commonwealth agt. Mead (supra) rules the precise case we have before us. It was an indictment for manslaughter. To contradict a witness, who testified in behalf of the commonwealth on the trial, the defendant offered to prove by the grand jurors who found the indictment that he testified differently before them. The court below excluded the witness on the ground that it was against public policy and established practice to permit grand jurors to detail the |
