Coblentz v. State

The appellant was indicted by a grand jury of Howard County, and tried and convicted in Allegany County, under article 11, section 58, of the Code, on a charge that, as president of a banking institution, the Central Trust Company of Maryland, he had accepted a deposit of money when the institution was, to his knowledge, insolvent. Before any pleading on his behalf the case was, upon his application, removed from Howard County to Allegany County; and all pleadings were filed in the latter jurisdiction. On the appeal, a number of questions have been presented for decision, the most important, as this court views them, being three: That of the effect on an indictment of the presence with the grand jury, during their inquiry prior to taking their vote, of an attorney who represented plaintiffs in civil litigation against the banking institution; that of the effect of membership on the grand jury of persons hostile to the defendant; and, a third, that of the meaning of acceptance of deposits under the statute. These are questions of general bearing, the first two involving the composition and methods of the state's machinery for enforcement of the criminal law, and, the third, the principles which under the statute law of the state must determine the criminal liability of any bank officer in the state whose institution passes into the control of the bank commissioner and fails to pay its depositors in full.

Actions taken or methods followed in one bank cannot, of course, be allowed to settle the law for all in order to suit the case of that one bank, and, therefore, the court is first to ascertain the principles as they must be applied for any one who may come before the courts now or hereafter, and then to make application of them to rulings brought up for review in the one case. The question of the effect of the admission of the attorney into the grand jury proceedings was raised by a plea in abatement to the indictment found, and a demurrer to the sufficiency of it on the grounds that the presence of the attorney under the circumstances described in the plea would not be sufficient to invalidate the indictment, and that the plea was *Page 562 filed too late to present the question whether it would be. The demurrer was sustained. The second ground is considered first, because, if the plea was filed too late for consideration, there is no necessity of discussing the merits of the objection.

That it was too late is a conclusion based on the decision in Hooker v. State, 98 Md. 145 , 56 A. 390 , 392, that, after removal of a criminal case from the county of indictment to another county, although before any pleas were filed, the court of the second county could not entertain a motion to quash the indictment on the ground that a majority of the grand jury had not concurred in finding it. The opinion and reported arguments in that case disclose that the court was brought to its conclusion upon reasoning that the attack in that instance amounted to a falsification of the record recital that an indictment had been found. The court quoted, as the rule of law applicable, that "the record of a court as to the impaneling and proceedings of a grand jury and the finding of an indictment, like other records, proves itself, and is of such validity that, as a general rule, no fact can be averred against it." But the court added that thus to impeach the record in the second county, Howard, "would not be in accord with the principle of law that requires one court to respect the records of another, which had acted within its jurisdiction, and if in any instance an indictment is to be impeached by grand jurors, it should at least be done in the court where it was found. The provision in the Constitution that the court to which the record is transmitted shall hear and determine the same in like manner as if such indictment had been originally instituted therein, ought not to be construed to give the court to which the case is removed such power over the record of the other court as is sought in this case, and we are of opinion that even if it could be conceded that the Circuit Court of Frederick County could properly have inquired into the matters attempted to be raised by the motion to quash, the court for Howard County was right in refusing to do so." It is upon the last-quoted statement that the argument in this case is rested. *Page 563 This court is of opinion, however, that the beneficient purpose of the Constitution (article 4, section 8) to secure for persons accused of crime fair trials on charges against them so far as removal can accomplish it does not permit a construction that a defendant must file in the court, from which it seems fair to remove his case, any pleas that question the propriety of proceedings in the grand jury room.

Such a construction would seem to be opposed to the purpose of the constitutional privilege, and it would be opposed to the practice, for pleas of that kind are commonly withheld until after removal. State v. Scarborough, 55 Md. 345 ; Cooper v. State, 64 Md. 40 , 20 A. 986 ; Miller v. State, 76 Md. 264 ; State v. Keating, 85 Md. 188 , 36 A. 840 . In those cases attacks on indictments because of the constitution of the grand jury, or of defects in its proceedings, were overruled in courts to which the cases had been removed, in most instances because made after pleading to the merits, but it was in each case assumed that the trial court could entertain the plea or motion in the absence of the difficulty pointed out. A distinction between the grounds of attack in those cases, and that in Hooker v. State, would seem difficult to draw, obscure, without practical advantage, and likely to confuse.

The statement quoted from Hooker v. State was not necessary to the decision in that case, and in the opinion of this court should not be permitted to control the decision on the demurrer in this case; and, so far as it might tend to do so, it is now overruled. Giving it the effect contended for, it would require that a defendant must, before removing a case, present, and have tried out, all pleas or motions denying the valid finding of the indictment against him, even when the charge is murder and the Constitution gives him an unqualified privilege of removal; and that is a result which we think cannot be sustained. We conclude, therefore, that the court below was required to decide upon the validity of the plea in this case, and that it was error to sustain the demurrer to it. On the merits of the objection raised in the plea, this court is of opinion that the presence of an attorney as stated must have the consequence of invalidating the indictment upon a *Page 564 plea seasonably filed.

The plea alleged these facts. The Central Trust Company had purchased on June 30th, 1931, assets of the Washington Trust Company, situated in Ellicott City, and had assumed the liabilities to its depositors. On November 28th, 1931, after the Central Company had been taken in charge by the bank commissioner as receiver, a proceeding was filed by Jerome A. Loughran and others, as attorneys for the Washington Company and certain of its depositors and stockholders, seeking to have the transaction set aside and annulled upon a charge of fraud; that on March 2d 1932, a bill of complaint in equity was filed by Mr. Loughran and others, making charges substantially the same as those contained in the indictments returned on February 29th, 1932, two days earlier; that Mr. Loughran was private attorney of the Washington Company, and not a member of the grand jury, but was permitted to be with the grand jury, while it was conducting its inquiry and investigation, by an illegal order of court appointing him (Mr. Loughran) "special assistant counsel for the State of Maryland," to aid in the inquiry and examination into the subject-matter of the indictments; and, finally, that Mr. Loughran, privately employed as stated, did hear, see, and ascertain the proceedings of the grand jury in connection with the indictments, except at the time of the grand jury's vote, all to the prejudice and detriment of the defendant. The following statutory provisions determine the legality and effect of an order of court such as is outlined in the plea, for except under their authority no attorney other than the state's attorney or his regular official assistants could be permitted to attend in the grand jury room.

Under section 27 of article 10 of the Code, a court may appoint an attorney to take the place of a state's attorney when necessary because of absence, sickness, resignation, or death of the state's attorney, the appointee to qualify and be compensated as a regular state's attorney; but this section cannot be involved in the present case, because there was no absence, death, or disability of the state's attorney regularly serving, and it does not fit the description of the order passed. State v. Heaton, 21 Wn. 59 , 56 P. 843 ; Sayles v. Genesee *Page 565 Circuit Judge, 82 Mich. 84 , 46 N.W. 29 . It is section 7 of article 26 that provides for the appointment of "assistant counsel for the State, to aid in the trial of criminal or other State cases in said courts, whenever in the judgment of the court in which any such case is pending public interest requires it." The section last quoted would make it legal for the court to appoint assistant counsel in a pending case to aid in the trial; but in our opinion appointment under its authority could give the appointee none of the power of a state's attorney to enter and be present in the room with the grand jury while they are investigating a case with a view to possible indictment. So it was held with respect to a federal statute empowering the Attorney General of the United States to appoint an attorney "to assist in the trial of any case in which the Government is interested." (Rev. St. sec. 363 and 34 Stat. 816 [5 U.S.C. Ann., secs. 310, 312]).

The entry of an appointee under that statute into a grand jury room was unauthorized and unlawful. United States v. Rosenthal (C.C.), 121 Fed. 862 ; United States v. Virginia-Carolina Chemical Co . (C.C.), 163 Fed. 66 ; United States v. Heinze (C.C.), 177 Fed. 770 ; United States v. Rubin (D.C.), 218 Fed. 245 . See Act of Cong.

June 30th, 1906, ch. 3935 (5 U.S.C. Ann., sec. 310); and United States v. Huston (D.C.), 28 F.2d 451 , 453. Aid in a trial might well be construed to include preparation for the trial by collecting evidence and otherwise, but to include attendance at the grand jury proceedings would require a liberality of construction that seems opposed to the rigorous policy of exclusion followed in the effort to insure against publicity and interference in grand jury proceedings; in that respect no liberality is allowed. Even to make an exception for the admission of stenographers to aid grand juries in this state special statutory provisions have been exacted. Acts 1900, ch. 164, Baltimore City Charter, sec. 604C.

Acts 1920, ch. 151, Baltimore County Code, art. 3, P.L.L., sec. 104. And the greatest degree of secrecy is enjoined by these statutes in express terms. To construe attendance at grand jury sessions of attorneys appointed to aid would *Page 566 also be opposed to the letter of the statute under consideration, for the attorney is by the letter to be appointed only when the case is pending in the court, and according to the ordinary acceptation none is pending as yet when the grand jury is investigating a charge. The present plea does not set forth the relationship, if there was any, between the charge of fraud on which the attorney's civil proceeding was first based and the charge in the indictment, but it does allege that the second bill filed by him contained substantially the same charges as those in the indictment, which resulted two days before, from the grand jury investigation which he attended.

There is alleged, therefore, a degree of identity between interests and grounds of action of private persons whom Mr. Loughran represented as attorney, and those involved in prosecution under the indictment found. It would, according to the allegations, be in furtherance of the interests of the clients to have these charges maintained. Actual effort on Mr. Loughran's part to influence action by the grand jury is not alleged, and there is no allegation of actual injury, except the general one that his presence in the grand jury room was to the prejudice and detriment of the defendant. The grand jury is an accusing body, and not a judicial tribunal; and it acts upon knowledge possessed by its members from any source, whether from witnesses brought before it, or from information gained before its sessions.

"In this state they have plenary inquisitorial powers, and may lawfully themselves, and upon their own motion, originate charges against offenders, though no preliminary proceedings have been had before a magistrate, and though neither the court nor the state's attorney has laid the matter before them." Blaney v. State, 74 Md. 153 , 21 A. 547, 548 ; In re Grand Jury Report, 152 Md. 616 , 137 A. 370 . And their oath requires them to present all things truly as they come to their knowledge, according to the best of their understanding. But it is an inflexible requirement that their investigations shall be carried on secretly and free from outside interference or influence; and great care is taken that they shall be so carried *Page 567 on. The purposes of this are many.

Freedom of inquiry is to be preserved, and at the same time individuals whose conduct may be investigated, but against whom no indictment may be found, are to be protected from disrepute, and all individuals are to be protected from one-sided presentations of unfavorable evidence, without opportunity to reply, before any one present unnecessarily. See In re Grand Jury Report, 152 Md. 616 , 631, 137 A. 370 . This protection from one-sided hearings has, indeed, been regarded as demanded in constitutional provisions for inauguration of criminal proceedings by indictment. Comm. v. Harris, 231 Mass. 584 , 121 N.E. 409 .

It is, moreover, "inherent in the grand jury system with all the force of a statutory enactment." United States v. Edgerton (D.C.), 80 Fed. 374, 375 . And it is found embodied in the familiar grand jury oath that the members sworn shall keep secret the counsel of the state, their fellows, and their own, and shall not present any one for envy, hatred, or malice, nor leave any one unpresented for fear, favor, or affection, or hope of reward. The rule is not merely a remedial one, that injury shown to have been sustained by the accused in a particular case shall be remedied, but also a preventive one, which interposes in advance for private benefit and public benefit as well. Discriminations between degrees of departure from it are difficult to manage, and, unless the bar is maintained in all cases, it can hardly have any effective existence.

Therefore the law must act upon the existence of opportunity rather than await proof of abuse, as in cases of communications with petit jurors, and also in civil cases of conflicts of interests of agents, attorneys, or trustees. Mason v. Martin, 4 Md. 124 ; Gaither v. Myrick, 9 Md. 118 , 143; Derlin v. Derlin, 142 Md. 352 , 121 A. 27 . "Their findings must be their own, uninfluenced by the promptings or suggestions of others, or the opportunity thereof." Lewis v. Board of Commrs. of Wake County, 74 N.C. 194 . Some cases of accidental departure may perhaps be ignored, but we have no occasion now to consider those.

An objection to an indictment on such grounds has been made in only one case in this court before the present one. *Page 568 Cochran v. State, 119 Md. 539 , 556, 87 A. 400 . In that, for investigation of charges of miscounting election ballots, the president of the board of police commissioners was brought before the grand jury to produce the ballot box in his custody, and a member of the board of election supervisors was present to produce the keys, returns, and talley sheets of the precinct and ward concerned. Both testified in the trial court that they did not participate in the grand jury's counting of the ballots, and that the grand jury did not deliberate upon any questions during their presence. The custodians of evidence merely came with the evidence; and that was found unobjectionable.

The case is cited elsewhere as an illustration of an exception made of necessity and without danger; and it does not reach the ground of the objection here. Lebowitch v. Commonwealth, 235 Mass. 357 , 126 N.E. 831 . But there are many decisions by courts of other states and of the United States on the same objection. Differences of opinion have been expressed, but the weight of authority now seems in accord with the view we have stated.

"The right of the citizen to an investigation by a grand jury pursuant to the law of the land is invaded by the participation of an unauthorized person in such proceedings, be that participation great or small. It is not necessary that participation should be corrupt, or that unfair means were used. If the person participating was unauthorized, it was unlawful." Latham v. United States (C.C.A.), 226 Fed. 420, 424 . "If the presence of an unauthorized person in the grand jury room may be excused, who will set bounds to the abuse to follow such a breach of the safeguards which surround the grand jury. * * * It is beyond question that no person, other than a witness undergoing examination, and the attorney for the government, can be present during the sessions of the grand jury.

The rule is inherent in the grand jury system with all the force of a statutory enactment. The cases where bailiffs and stenographers have on occasions been temporarily present in the grand jury room are only apparent exceptions. The rule, in its spirit and purpose, admits of no exception." *Page 569 United States v. Edgerton (D.C.), 80 Fed. 374, 375 . In a case previously cited, United States v. Rosenthal (C.C.), 121 Fed. 862 , the court held an indictment void because of the presence in the grand jury room of an attorney appointed by the Department of Justice under the supposed authority of a statute like that in this state for appointment of an assistant for the trial, and said, page 873 of 121 Fed.: "Every citizen is amenable to the secret inquisition of the grand jury, and he may demand justly that his essential rights be guarded by the wholesome preservation of settled systems and policies, that give greater certainty to legal proceedings, and fix on the designated prosecuting officer of the locality inevitable accountability for what is done or omitted.

The inconvenience of resubmitting the matter to the grand jury is temporary; the injustice of denying the defendants investigation pursuant to the law of the land would be perpetual." And supporting the same conclusion are the cases of United States v. Virginia Carolina Chemical Co . (C.C.), 163 Fed. 66 ; United States v. Heinze (C.C.), 177 Fed. 770 ; Hartgraves v. State, 5 Okla. Cr. 266 , 114 P. 343 ; Wilson v. State, 70 Miss. 595 , 13 So. 225 ; State v. Wetzel, 75 W. Va. 7 , 83 S.E. 68 ; Lewis v. Board of Commrs. of Wake County, 74 N.C. 194 ; Durr v. State, 53 Miss. 425 ; Comm. v. Harris, 231 Mass. 584 , 121 N.E. 409 ; and Lebowitch v. Comm., 235 Mass. 357 , 126 N.E. 831 . And see notes, 33 L.R.A.

(N.S.) 568; Ann. Cas. 1912d 184; Ann. Cas. 1918A, 1080. In some of the cases cited, there was a more clearly marked conflict of interest of an attorney in attendance than is alleged in this plea; in some of them attempts to influence the decision of the grand jury were made evident, and none is expressly pleaded here; but the same fact of unlawful