Wilson v. State

Indictment. Attorney before grand jury. Improper influence. Where an attorney, who, though not employed to prosecute, goes before the grand jury, and, as a private prosecutor — not a witness — uses his influence in furtherance of a presentment, which is made, the indictment will be held invalid. Durr v. State, 53 JVIiss., 425; Welch v. State, 68 lb., 341.

From the circuit court of Lee county. Hon. Newnan Gayce, Judge. Appellant was convicted' of forgery. The indictment alleged that the forgery was committed for the purpose of defrauding the Postal Telegraph-Cable Company. The defendant filed a plea in abatement, alleging that J. L. Finley, the attorney for said telegraph' company, who had been employed to aid in the prosecution, went before the grand jury with witnesses, and acted for the district attorney in preparing the indictment, and procured the same to be found and presented; that the district attorney was not present in the grand jury room when said indictment was found; that Finley had not been selected as assistant district attorney or district attorney pro tem., and was in nowise connected with the case, except that he was the attorney of the telegraph company, and, as such, assisted in the prosecution of defendant. On the trial of the issue presented by the plea in abatement, the main allegations thereof were proved. J. L. Finley testified that he was assisting the district attorney in the prosecution of the case, but was not employed to do so by the telegraph company; that he was employed by said company to defend certain civil suits for damages growing out of prosecutions against the defendant; that he was not sworn as a witness, and did not testify before the grand jury, but told one of the grand jurors what witnesses to summon ; that he prepared the indictment in this ease, and another against the defendant for perjury, but was not employed by any one to prosecute; that he conferred with the district attorney, and was in the grand jury room in reference to the case at his request; that he used no undue influence to induce the grand jury to return the bill. Two of the grand jurors testified to the fact of Finley’s presence in the jury-room. Each of them testified that he was not influenced in his action by Finley’s statement, and one of them stated that he did not think the grand jury was so influenced. Under the instruction of the court, the jury found against the defendant upon this issue. Being finally convicted, he prosecuted this appeal. The opinion contains a further statement of the case; Without argument of the facts in respect to the trial of the issue raised by the plea in abatement, and without discussion as to the propriety of a peremptory instruction- against the accused at any stage of the prosecution, we submit that the action of the court as to this was improper, and that, for this error alone, the judgment must be reversed. Durr v. State, 58 Miss., 425.