People ex rel. Lemon v. Supreme Court

The grand jury of Orange county indicted Lucy Earley on October 7, 1926, for the murder of her husband by poisoning his food. The effect of this indictment was to supersede an information, filed by the District Attorney with the Recorder of the city of New-burgh, charging the same crime. The minutes of the grand jury have been inspected by the defendant under an order of the court. Qne Wegley, an accomplice, gave testimony

The common-law courts, till aided by statute, professed a lack of power, even in civil causes, to order the inspection of documents in advance of a trial, unless indeed the document to be examined was the very subject of the cause (Denslow v. Fowler, 2 Cow. 593 , note; McQuigan v. D., L. & W. R. R. Co., 129 N. Y. 50 , 55; Carpenter v. Winn, 221 U. S. 533 ). To give relief from these defects, the remedy of discovery and inspection was framed by courts of equity (2 Story, Eq. Juris. § 1484). The remedy as framed involved a separate, if ancillary, suit, and in that respect as well as others was awkward and unwieldy. Statutes, long in force in this State, have made a like remedy available in the primary cause itself by motion or petition. This borrowing of equitable remedies began with the Revised Statutes of 1830 (2 R. S. 199, part III, ch. 1, title 3, §§ 21, 22; King v. Leighton, 58 N. Y. 383 , • 384, 385). A party to a suit in the Supreme Court might be compelled “ to produce and discover books, papers and documents in his possession or power, relating to the merits of any such suit, or of any defence therein ” (§ 21). The successive Codes of Procedure and the Civil Practice Act, extending the same remedy to other courts of record, have carried it down, unchanged in substance, to our day (Code Civ. Pro. § 342; Code Civ. Pro. § 803; Civ. Prac. Act, § 324; also L. 1841, ch. 38). So familiar in civil causes has the remedy become that many who invoke it have forgotten in all likelihood its origin in history as the creature of a statute. Yet even in civil causes, with all the statutory reinforcement of the sparse and narrow remedy, itself “ in the nature of a usurpation ” (McQuigan v. D., L. & W. R. R. Co., supra, at p. 55), that had grown

When we turn to criminal causes, we find a jurisdiction that is even more restricted. There are expressions of opinion that deny the jurisdiction altogether. There are others that seem to limit the disclosure to documents that are the subject of the charge, thus assimilating the practice to the jurisdiction in civil causes that was known at common law. Others concede or assume a broader jurisdiction, one adequate to prevent a failure of justice, yet narrower than discovery in equity or under the statutory substitute. Nowhere has there been a suggestion that the jurisdiction can properly be extended to notes or memoranda in the possession of the prosecutor, but inadmissible as evidence either for prosecution or for defense.

The point of departure in any discussion of the subject is the decision of the King’s Bench in Rex v. Holland (4 T. R. [Durnford & East], 691), decided in 1792. An information had been filed by the Attorney-General against an officer of the East India Company upon charges of peculation and corruption. A Board of Inquiry had examined witnesses in India and had made a report upon the matter which was transmitted to England. The defendant applied for an order that he be permitted to examine this report. The court refused the order upon the ground of want of power. “ I am extremely clear,” said Lord Kenyon, Ch. J., “ that we ought not to grant

The report to be examined in that case would have been inadmissible as evidence for prosecution or defense. Later cases exhibit a more conciliatory tendency where the document is one that may be received as an exhibit. Discovery will be ordered if the exhibit is the basis of the charge, as, e. g., where the indictment is for sending a threatening letter (Rex v. Harrie, 6 Car. & P. 105; cf. People v. Bellows, 1 How. Pr. [N. S.] 149). There is some authority for the view that it will be ordered in other cases where the thing to be inspected is admissible in evidence and a failure of justice may result from its suppression. Thus, in Regina v. Dorr (3 Cox C. C. 221) an inspection of the contents of the stomach was permitted in a prosecution for homicide. In People v. Gerold ( 265 Ill. 448 ) a county treasurer charged with defalcation was held to have the right to inspect official books and documents. In Commonwealth v. Jordan ( 207 Mass. 259 ), a prosecution for murder, there was recognition of the power to permit an inspection of portions of the body taken at the time of the autopsy by the medical examiner and also weapons and other exhibits in the possession of the public prosecutor, though the court refused the order in the exercise of discretion. Other cases point the same way with more or less distinctness (See, e. g., Newton v. State, 21 Fla. 53 ; Daly v. Dimock, 55 Conn. 579 ; State v. Howland, 100 Kan. 181 ). The power frequently asserted to compel the return of property illegally impounded is based upon the assumption of a supervisory jurisdiction over the acts of public prose

Little aid can come to the defendant from the decisions in our own State, much relied upon by counsel, which maintain an inherent jurisdiction to permit an inspection of the minutes of the grand jury returning an indictment. The object of such inspection is not to supply the accused with evidence in advance of trial. The object is to lay the basis for a motion to dismiss the indictment where there is reason to believe that the evidence before the grand jury is insufficient or illegal (Matter of Montgomery, 126 App. Div. 72 ). Little aid can come from the decisions which maintain an inherent jurisdiction to compel the service of a bill of particulars explaining or defining an indictment that is general or indefinite (People v. Williams, 243 N. Y. 162 ; Commonwealth v. Jordan, supra). Remedial devices for the correction of uncertainties in pleadings were worked out by the courts, without resort to statute, in aid of civil remedies. There was no greater need of statute when the same remedy was conceded to one accused of crime. What was done was within an acknowledged head of common-law jurisdiction as shaped by precedent and practice. The power to correct a pleading has a genesis in history that has little, if any, relation to the power to compel a disclosure of the proofs. The development of the latter power was due almost wholly to the activities of the Chancellor, who was care

We have traced'the lines of battle, the terrain of the opposing forces. The survey may help in the future to a solution of the conflict. For the moment,, the clash may be confined to outlying portions of the field. The decision of this case does not require us to affirm or deny the existence of an inherent power in courts of criminal jurisdiction to compel the discovery .of documents in furtherance of justice. The beginnings or at least the glimmerings of such a doctrine are to be found, as we have seen, in courts other than our own. A search of precedents in this State yields results that are largely negative, if our scrutiny is confined to criminal prosecutions. On the other hand, the tendency is unmistakable in the field of civil causes to limit the power strictly within the statutory schedules (McQuigan v. D., L. & W. R. R. Co., supra). Whether apart from statute and beyond it there is a supervisory jurisdiction, as yet unplumbed and unexhausted, in respect of criminal prosecutions, is something that can best be determined at the call of particular exigencies in the setting of the concrete instance. The courts are properly reluctant to abjure the power in advance, or to confine in predetermined formulas the occasions of its exercise. We have a

We leave the question open, for if the power exists at all, this case is not within it. The most that can be argued with any show of reason in behalf of the defendant is that the remedy of inspection in civil causes as now prescribed by statute is to be applied in consimili casu to criminal prosecutions. The power in criminal prosecutions may not improbably be less. It surely can be no greater. But the defendant, if subjected to that test, fails to make out her title to the remedy. She does not ask, as did the defendant in Commonwealth v. Jordan (supra), that the body of the dead man or any part of it be submitted to her scrutiny or to that of her advisers. Her demand is that a prosecutor who has gathered statements from prospective witnesses shall place the statements in her hands that she may study and repel them. She does not ask that she inspect any confession made in her name and admissible against her. Conceivably such inspection may be necessary at times, as, for instance, to enable a defendant to prove the forgery of a signature. She asks that she examine the incriminating statements of a conspirator whose confessions will not be evidence except against himself. So far as the record shows, he has not even been indicted. If indicted, his trial will be separate

If the statute governing inspection were extended in so many words to criminal prosecutions, the defendant would be unable on such a showing to make good her title to relief. We have no occasion at this time to consider to what extent inspection might be directed at the trial as an aid to cross-examination after the witnesses had testified (4 Wigmore, Evidence, § 2224). What concerns us at the moment is the scope of the remedy available in advance. At such a stage of the contest, a remedy so drastic is within the condemnation of the rule that inspection may not be had for the sole purpose of prying into the case of one’s opponent. The documents to be exhibited must be evidence in support of the cause of action or defense of the party seeldng the discovery (1 Pomeroy’s Eq. Juris. § 201; Wigram on Discovery, § 342; Hare on Discovery, pp. 183, 189). But here the objection is even deeper, more incurable. The documents to be exhibited to this defendant are not evidence for any one. They are merely mnemonic instruments whereby the prosecutor may be better able to elicit evidence hereafter. A mandate giving them publicity is something more than error in the exercise of power. It is an assumption of power where none has been confided (Matter of Sawyer, 124 U. S. 200 , 221; Quimbo Appo v. People, 20 N. Y. 531 ; St. Louis R. R. Co. v. Wear, 135 Mo. 230 , 256).

The order should be affirmed without costs to either party.

Pound, Crane, Andrews, Lehman, Kellogg and O'Brien, JJ., concur.

Order affirmed, etc.