In Re Report of Grand Jury

Digges, J., delivered the opinion of the Court. The grand jury of Baltimore City for the May Term, 1926, completed its work and made its final report to the Criminal Court on September 10th, 1926. Delivered to the court at that time by the foreman of the grand jury was a report of a special committee of the grand jury composed of six members, designated as tbe report of tbe special committee on the Clifton Park high school. This report was signed by its chairman, who was also' assistant foreman of the grand jury, and five other members of the grand jury.

It contains a criticism of the methods of construction and the material used in the Clifton Park high school, located in Baltimore City, especially in respect to the alleged inefficiency of H G. Per-ring, supervising engineer of the Public Improvement Commission and head of the commission’s bureau of construction, and the allowance of substitution of different material than that called for in the specifications, resulting in a lower cost of construction, for which the city got no credit, but which saving, it is alleged, benefited the contractor; it also inferentially criticising the Public Improvement Commission for entrusting the construction of the public school buildings to the supervision of the supervising engineer, and a lack of proper supervision by the commission. It is urged that on all future buildings of this sort the supervision he entrusted to the architect, in co-operation with the building inspector’s office. The report further states that the special committee feels that the present arrangement results in duplication of effort and lack of efficiency, which is not only extravagant hut dangerous. The General Assembly of Maryland, by chapters 373 and 374 of the Acts of 1920, authorized the issuance by the Mayor and City Council of Baltimore of its stock in the amount of $51,000,000 to he used in making city improve ⁶¹⁸ menta as specified in the acts; chapter 873 authorizing what is known as the general improvement loan, and chapter 374 what is known as the water loan.

These acts of assembly require the Mayor and Oity Council of Baltimore to provide by ordinance for a commission with full power to administer the funds so authorized, to provide for their expenditure, to employ such officers, agents, and servants as may be necessary in connection therewith, and to supervise the entire disposition of the fund so far as the exercise of such power is not inconsistent with the charter of the Mayor and City Council of Baltimore; and said act further provided that the Mayor and City Council should by ordinance provide for such commission before the question of the issue of stock should be submitted to the voters of the city. Pursuant to such acts of the General Assembly, the Mayor and City Council, by Ordinance No. 376, approved July 2nd, 1920, created the Public Improvement Commission, consisting of five citizens and residents of the city, to be appointed by the Mayor with the consent of the City Council, together with the Mayor and chief engineer of Baltimore City, members ex officio. Subsequently the Mayor and City Council by ordinance submitted the question as to the issuance of the stock thus authorized by the General Assembly to the legal voters of Baltimore City, which was duly approved at the election in November, 1920. The then Mayor of Baltimore City appointed five citizens as members of the Public Improvement Commission, who, together with the present Mayor and chief engineer, now constituting said commission, and Henry G. Perring, supervising engineer of the commission, are the appellants.

Subsequent to the filing of the report of the special committee of the grand jury, the appellants filed petitions in the Criminal Court of Baltimore City, alleging among other things that the report of the special committee on the Clifton Park high school is improper and illegal, because: “(a) The grand jury has no authority or power to return such presentments ; (6) the grand jury had no power to authorize a special committee to return such presentments; (e) the charges (or presentments) contained in said report are not such upon ⁶¹⁹ winch any indictment can be drawn; (d) the report violates your petitioners’ rights under the Bill of Rights of the Constitution of the United States and the Declaration of Rights of the Constitution of Maryland, in that it undertakes to make charges (or presentments) and to condemn your petitioners without the privilege of a trial by jury, or any other trial, without being heard in their own defense, and without an opportunity to produce witnesses or other evidence in their behalf; (e) the report (or presentment) in the manner made and published, is subversive of the principles of the government, and is opposed to every recognized rule of fairness and justice; and (/) because of other reasons to be assigned at the hearing. Wherefore your petitioners pray your Honor to pass an order striking from the records of this court said report (or presentment) of the special committee on the Clifton Park high school of the grand jury for the May term, 1926.” Later various motions were made and orders passed, culminating in an order of the court- on November 19, 1926, by which certain portions of the report of the special committee of the grand jury were ordered deleted from the record, but denying the petition of the appellants, to expunge the whole report. From that order this appeal is taken. The single question for decision is: Should the report of the special committee of the grand jury be stricken out ?

And this involves the question of the grand jury’s right and power to make such a report. It is of no concern whether the matter contained in the report be true or false, as our ■conclusion must be based not on the truth or falsity of the report, but upon the right and power of the grand jury to make such a report. The institution known as the grand inquest, or the grand jury, is of ancient origin. An accusing body, not, however, a grand jury, so called, has been known to the law from the time of Henry III.

As first constituted, the present functions and duties of the grand and petit juries were exercised by the same body. Bracton’s account, as stated by Reeves in his “History of the English Law” is that a general summons preceded the coming of the justices into a county, which commanded all persons to attend ⁶²⁰ at a certain time and place. At this assembly of the people the justices evidenced their authority by reading their commissions and explaining the cause of their coming and the commands of the king, enjoining them particularly of the duty incumbent upon them, as subjects of the king, not to harbor any outlaws, murderers, robbers or burglars. The process of procuring an accusing body was then begun by calling the bailiff of each hundred and requiring him under oath to choose out of his hundred four knights; who were to come before the justices and make oath that they would elect twelve other knights, or if knights could not be had, twelve “free and lawful men,” who had no interest in the matter to be investigated, nor were suspected of any offence, and were such as were well qualified to dispatch the king’s business.

The twelve thus selected, after being sworn, were informed that they were to answer in their verdict separately upon every article assigned, and were to return their answer at a certain day. They were also charged that, if they knew of any suspected persons in their hundred, they should instantly apprehend them, if found, and if not, their names were to be privately given to the justices, that they might not have notice to escape. Whereupon the sheriff was commanded to take them and bring them before the justices. Each hundred had its own accusing body; no witnesses were examined, the presentments being made upon the knowledge of the jurors in respect of any violations of law as were the subjects of their inquiry.

These twelve were sworn to speak the truth, and, coming from the vicinage where the facts arose, no one was in a better position to know of infractions of the law than themselves. Later, in the forty-second year of Edward III, at a commission of oyer and terminer, beside the return on an inquest for every hundred by the bailiff, the sheriff of the county was required likewise to return a panel of knights, which the old records designate “Le Graunde Inquest.” 3 Reeves, History of English Law, 133; Forsythe, Trial by Jury, 218; Thompson on Juries, 560-562. After the practice began of returning the grand in ⁶²¹ quest to inquire for the whole body of the county, the business of the hundred-inquest declined, until the whole burden of presenting and finding indictments devolved upon the grand inquest, and the hundredors continued to be summoned merely for trying issues, or exercising the present functions of the petit jury. From that early time to the present, the grand jury has been continued and preserved as an institution necessary for the preservation of the peace, good order, and dignity of the state in bringing to trial those guilty of violations of law, and in protecting people from being put on trial upon frivolous, unfounded, or false accusations.

At common law, just as no man may be convicted and punished of a felony without the unanimous verdict of twelve of his peers, constituting the petit jury, neither can he be put to his trial for any such offense except upon the presentment or indictment by at least twelve of his fellow citizens, constituting the grand jury. This is true in Maryland, in the federal courts, and in most of the states of the Union, there being a few in which by statute a lesser number than twelve may present or indict. So jealously have the people generally regarded this requirement as a safeguard to liberty, that it is embodied in some form in most, if not all, of the constitutions. See the Fifth Amendment to the Federal Constitution, and the 21st article of the Bill of Rights of Maryland.

What are the duties and powers of a grand jury under the laws of this state? There has been much discussion and some discord, as shown by the opinions of courts in other states, upon the question of a grand jury’s inquisitorial powers. However this may be in other jurisdictions, it is settled here that the inquisitorial powers of a Maryland grand jury are of plenary character. In the case of Blaney v. State, 74 Md. 153 , our predecessors, speaking through Judge Alvey, said: “However restricted the functions of grand juries may be elsewhere, we hold that in this state they have plenary inquisitorial powers and may lawfully, them ⁶²² selves, 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.

The peace, the government, and the dignity of the state, the well-being of society, and the security of the individual, demand that this ancient and important attribute of the grand jury should not be narrowed or interfered with when legitimately exerted. That it may in some instances be abused, is no sufficient reason for denying its existence.” While it is true that the grand jury has and should have the fullest inquisitorial power, yet in the exercise of such power they are confined to an investigation of violations of the criminal law, with the single end in view that the accused may be brought to trial in the court whereof the grand jury is a part, to answer and defend the charges preferred against him, and wherein he can obtain a copy of the accusation, be confronted with the witnesses against him, be represented by counsel, and submit the question of his guilt or innocence to a petit jury. This function of the grand jury is accomplished by indictments or presentments, and while there is both a historical and technical difference between an indictment and a presentment, practically they are employed for the same purpose, that of informing the accused of the charges against him and affording him an opportunity to make defense. Technically, an indictment is a formal written accusation made by the public prosecutor, and submitted to the grand jury, in order that they may determine from competent evidence whether the accusation, if proven, would be sufficient to bring about the conviction of the accused.

The grand jury, finding this to be true, endorses upon the indictment, “A True Bill,” attested by its foreman. Presentments are accusations of crime made by the grand jury from their own knowledge or from evidence furnished them by witnesses or one or more of their members. In a presentment the grand jury charges that a specific person has been guilty of specific acts which constitute a violation of the ⁶²³ criminal law; and from this presentment 'the prosecuting attorney prepares an indictment and returns it to the grand jury for the endorsement of “A True Bill.” At common law the function of the grand jury is confined to investigations of violations of the criminal law, and unless such investigations disclose facts which would constitute a recognized violation of the criminal law, they have no power or authority to criticize any particular individual or number of individuals. If the evidence obtained through their investigations warrants a presentment or indictment, under the law and the oath which they are required to take, they are bound to present or indict, and if in their judgment it falls short of showing the commission of a criminal offense, they are bound to refrain from making public the results of their investigation.

There are certain statutory provisions in most of the states requiring grand juries to make an investigation of the penal institutions within their jurisdiction and report their findings to the court; and what we have said in no way conflicts with their duty or authority in this respect as conferred by statute. The grand jury of Baltimore City, under a general provision contained in section 22 of article 51 of the Code of 1924, is required at each term of court to visit the jail and inquire into its condition, the manner in which it is kept, and the treatment of the prisoners, and report the same to the court; and by section 696 of article 27, the grand juries of Baltimore City and Anne Arundel County are required to inquire into the conduct and management of the Maryland Penitentiary and the Maryland House of Correction, “and shall make presentments of all offenses and omissions of any person in or relating to said institutions.” It has long been the custom and practice in this state for grand juries, in making their report to the court, upon asking-for their discharge, to make statements as to general conditions within their jurisdiction. Such reports may have salutary effect and should be permitted so long as they do not point out individuals as subjects of public criticism and opprobrium. ⁶²⁴ In Blaney v. State, supra, in speaking of the inquisitorial power of the grand jury, the Court remarked: “Though far-reaching and seemingly arbitrary, this power is at all times subordinate to the law.” In 28 C. J. 799, it is said: “Grand juries sometimes make a sort of general presentment of evils or evil things, to call attention to them, yet not as instructions for any specific indictment. It has been held that a grand jury has no power to file with the court a report of this nature, charging no crime, but reflecting on the conduct of specified individuals, and the court may expunge such a report from the records where it appears to have been inadvisedly made, or is merely a guise to accuse a public official of laxity in the enforcement of certain laws.” In 22 A. L. R. 1366, in the annotations to the case of Bx parte Jennings, at page 1367, it is said: “In the absence of a statute authorizing a grand jury to make reports which do not amount to indictments or presentments, reports are not privileged, because extra-judicial, and therefore may form a basis for libel.” To the same effect see Poston v. Wash., A. & Mt.

V. R. Co., 36 App. D. C. 359, 32 L. R. A. (N. S.), 785, and Rector v. Smith, 11 Iowa, 302 , where it was held that a grand jury could only present to the court the misconduct of an official by indictment, and that a report imputing misconduct in office to a county judge was beyond its powers. In the case of Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200 , Ann. Cas. 1916E, 223, it was held that where the statutes do not provide for reports by grand juries as to the conduct of public officials, a report reflecting on the official conduct of the prosecuting attorney, not followed by an indictment, should be expunged from the records of the court