Gordon v. Commonwealth

Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

This was a prosecution for seduction, fornication and bastardy. The prosecutrix testified that the plaintiff in error had criminal connection with her on the 2d, 5th and 6th respectively, of September 1877. On cross-examination she answered that she was a witness before the grand jury at the January Sessions 1878, on a charge of rape against him, and then testified that the rape was committed on the 29th of September 1877. She was further questioned whether, on that hearing she' was not asked by the foreman of the grand jury, if prior to the 29th September, the time of the alleged rape, Mr. Gordon ever had criminal connection with her, and whether in answer thereto she did not say “No. He had frequently insisted upon it, but I had always refused him. That was the first, last and only time.” She swore she was not asked that question, and made no such answer. With a view of casting discredit on her testimony, and impairing her character as a witness, the plaintiff in error called the foreman of that grand jury, and proposed to prove by him that he did then ask her that question, and that she so answered. The question put to the grand juror was objected to, principally on the ground that it was against the policy of the law to permit a grand juror to disclose what was sworn to in the grand jury room. The court sustained the objection. This constitutes the sole ground of alleged error.

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 v. Dunbar, 2 Wheat. Selw. N. P. 1072, 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 *220 bound not to disclose. This case was cited with approbation in Huidekoper v. Cotton, 3 Watts 56 , and the competency of a grand juror to testify as to who was the prosecutor, affirmed. In this case that 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 were 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 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. 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 which 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 Whart. Am. Crim. Law, sect. 508. It is said in 1 Whart. Law of Ev., sect. 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 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 v. Commonwealth, 2 Robinson (Va.) 795 ; State v. Offnutt, 4 Blackf. 355 ; State v. Fassett, 16 Conn. 457 ; Commonwealth v. Hill, 11 Cush. 137 ; State v. Broughton, 7 Ired. 96 ; Commonwealth v. Mead, 12 Gray 167 ; Way v. Butterworth, 106 Mass. 75 . The case of Commonwealth v. 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 witnesses on the ground that it was against public policy and established practice to permit grand jurors to detail the evidence given before them, for the purpose of impeaching the witness on the trial of the indictment. On exceptions taken the case was reversed. The court *221 holding that when the case was reached for triaFall useful purposes of secrecy had been accomplished. The necessity and expediency of retaining the seal of secrecy were at an end, and the jurors were held competent for the purpose of proving the facts.

The indictment for the rape in which the prosecutrix testified was found in January 1878. In the present case the indictment was found in January 1879. The district attorney elected to try the latter first. The offer in contention is not to prove what the witness testified to before the grand jury in the prosecution for rape with a view of contradicting it, or of casting discredit on its accuracy. Its purpose is to impair her testimony now by proving-that she swore to a different state of facts on another occasion, in conflict with her present evidence. It is not in conflict with the oath of a grand juror, to prove by him her previous testimony. It is material evidence of which the plaintiff in error should not be deprived unless demanded by public policy. We tjiink it is solely a question of public policy. The reasons given at an early day for excluding the kind of'evidence offered, and for holding a grand juror incompetent to testify to such facts, have lost their force.

The knowledge by a witness, who is examined before a grand jury, that the jurors may testify to what he has there sworn, will tend to advance the cause of truth and justice. A wise -public policy, and the rights of person and of property, require us to hold the foreman of the grand jury to be a competent witness for the purpose offered.

Judgment reversed and a venire facias de novo awarded.