Izer v. State

MoShbrry, J., delivered the opinion of the Court. The appellant was indicted by the grand jury of Alleghany County for perjury. He demurred to the indict ¹¹¹ ment and upon the demurrer being .overruled he pleaded not guilty and was put upon his trial, during the progress of which he reserved five exceptions to rulings of the Court on the admissibility of evidence. Having been convicted by the verdict of a jury, and subsequently sentenced to confinement in the penitentiary, he entered an appeal, which has brought the case here under the Act of 1892, c/i. 506.

The indictment alleges in substance that Izer had been regularly summoned and duly sworn to testify before the grand jury of Alleghany County, and that when interrogated by them he corruptly, knowingly, wilfully and maliciously swore falsely in reference to a subject-matter fully set forth in the indictment and then being investigated by the grand jury, and that he then and there committed the crime of perjury. The single question raised by the demurrer and also sought to be presented by two of the exceptions is this: Can a person who has corruptly, knowingly, wilfully and maliciously sworn falsely in giving testimony before a grand jury be indicted and tried for perjury? The appellant insists that he cannot, and his counsel bases that contention on the ground of public policy. The argument briefly stated is: To convict a witness of perjury for testifying falsely before the grand jury, the jurors must disclose what transpired in the jury room; but it is against public policy to allow a grand juror to disclose what transpired in the grand jury room; therefore, no matter how clear the perjury may be, no member of the grand jury is competent to give evidence of it, and consequently, as no one else can be cognizant of it, no presentment can be found and no prosecution can be maintained at all.

But this is obviously fallacious. The authority which, to promote the public welfare, has imposed upon grand jurors the obligation of secrecy may, when the same public Welfare requires it, dispense with ¹¹² its observance. The law, for wise reasons, has imposed upon grand jurors the obligation of secrecy, and for equally wise reasons, it has in certain cases, but only upon its own express command, and within clearly defined limits, dispensed with the literal observance of the obligation. The oath of the grand juror undoubtedly precludes him for all time from voluntarily, and of his own motion, or at his own instance, divulging the counsels of the State, his fellows or his own; but there is in the very nature of things a tacit condition implied that, in the furtherance of justice, the juror shall, in some instances, speak when the law through its constituted tribunals, explicitly commands him to do so.

As a consequence, notwithstanding his oath of secrecy, he may, with a view of contradicting a witness, be required to disclose in open Court what the witness testified to before the grand jury; and it is neither a violation of his oath nor against public policy for him, when thus called on, to repeat the witness’ testimony. So, also, he may testify as to whether a particular person gave any evidence or was examined at all before the grand jury. Commonwealth vs. Hill, 11 Cush., 137 . To give no further illustrations it is sufficiently apparent from those just alluded to that the proposition, that it is against public policy for a grand juror to disclose what transpired in the jury room, is stated too broadly in the argument, and of course the conclusion deduced therefrom is unsound.

Both upon principle and authority it is clear that an indictment for perjury committed before the grand jury may be found and supported upon the testimony of members of that body. If this were not so, it would, in many instances, be but an idle form to swear witnesses to testify to the truth before the grand jury. The guilty would often escape,indictment by the deliberate utterance of falsehood by witnesses, and the unoffending might, by the same means, be subjected to wanton pros- ¹¹³ editions if the perjurer were by the law of the land shielded from all punishment. Investigations by grand juries would be without value.

The secrecy of the proceeding and the guaranteed immunity from punishment would stimulate perjury aud multiply false witnesses. If witnesses who testify falsely before the grand jury are free from all the penalties of perjury, merely because of the juror’s oath of secrecy, the object designed to be effected by that clause of his oath would be perverted, and a measure intended to promote the public welfare would be transformed into a means to defeat the ends of justice. The law does not permit the obligation of secrecy which has been imposed for one purpose to be availed of for a totally different one. The grand juror’s oath of secrecy cannot, therefore, be interposed to obstruct the administration of justice — it cannot be made the means to defeat the punishment of crime.

Christian, in his note on page 12(5, 4th Black. Com,., says: A few years ago, at York, a gentleman of the grand jury heard a witness swear in