In re Osborne

lead it as to the nature of the proceeding before it, and should attempt to mislead it as to the reasons for the desire to discontinue the proceedings.”

This presentment is assailed on the ground that it is untrue, that it is an unwarranted imputation on the integrity and professional conduct of the petitioners, and that, in making it, the grand jury exceeded its powers and acted without authority.

From its ancient prestige, the deliverance of a grand jury, in the form of a presentment, is calculated to impress the public mind, and •a person aggrieved, who has no opportunity to answer or defend, is justified in appealing to the court to rectify a wrong, if committed. The term “presentment” acquires force from its historic association with a legal proceeding which was tantamount to an indictment, and, "because of that, it is commonly regarded as of legal significance. If so, it should have some force and effect and furnish a basis for some action. If it be not of legal significance, it is a mere brutum fulmén, without authority, and where it injuriously affects the individual it should not be accorded even the color of authority.

The petitioners, in support of their contention that this presentment is untrue, submit the minutes of the proceedings before the grand jury and in open court, as well as the charge of the learned justice presiding. But the question of its truth is not of prime importance, for, if that were inquired into, it would be conceding to it a legal character, as on a motion to quash an indictment for insufficient evidence. The ,question of prime importance is: Was the paper filed with the court a presentment by the grand jury under authority of law, using the word “presentment” in its legal sense, without regard to the nomenclature of the paper?

It is needless to enter upon a consideration of the office of a presentment at common law, for it is now but of historical interest, or to discuss the relation between it and an indictment, for that would be academic. On these subjects many judicial opinions showing research and learning have been rendered, and the great weight of authority to-day is—making allowance for special exceptions in some jurisdictions—that, in practice, the office of a presentment is no longer of legal force and effect, and that its one-time function is mergedl in the indictment. A concise definition is found in the American and English Encyclopedia of Law (volume 22, p. 1226):

“A presentment is a notice taken by a grand jury of any offense from the knowledge or observation of the grand jurors, without any bill of indictment laid before them at the suit of the government.”

And, again:

“It is an informal accusation, which is generally regarded in the light of an instruction upon which an indictment can be framed.”

In Mack v. People, 82 N. Y. 235 , a presentment is defined as “an accusation by the .(grand jury) without any bill before it, and after-e wards reduced to a formed indictment.”

Conceding the correctness of these definitions, are they of practical use as applied to our system of procedure, where the Attorney General or district attorney has a right to attend the grand jury, and where,

Thus the law, plainly expressed, is that a grand jury can act only in the manner prescribed by law, that when it so acts a certain definite legal result must follow, and that such result can be expressed only in either one of the two formulas, “ a true bill found” or “charge dismissed.” Whatever office a presentment performed, whether as a. basis for a criminal prosecution or as a direction to the prosecution to frame an indictment, it has been expressly abolished, and the grand jury, in its inquiry as to whether a crime has been committed, is limited to formulating or dismissing the charge, just as a petit jury is-limited to a verdict of “guilty” or “not guilty.” From the law as -it is, no other conclusion can be reached by any process of rational reasoning, and this can only be reached after overthrowing the prepossession inculcated by a reverent regard for institutions and customs which have ceased to exist.

Applying these rules to the case under consideration, what were the powers and duties of the grand jury? To inquire into a charge that

These accusations mainly rest upon a stated cause, that the Deputy Attorney General attempted to take the consideration of the case from the grand jury. An examination of the minutes shows that the Deputy Attorney General expressed an intention to withdraw the case, and gave as his reason that a quorum had not been present at the taking of all the testimony and that, in consequence, an indictment, if found, would be open to attack. The grand jury was not satisfied with the reason so given, and sought the advice of the court. This it had! a right to do. The learned justice presiding evidently did not agree with the Deputy Attorney General, and he directed the inquiry to proceed. It did proceed. Further testimony was taken, and, at its close, the grand jury disregarded the advice of the Deputy Attorney General that sufficient evidence had been given to warrant the finding of an indictment, and voted “to find no bill.” This was the exercise of a power which was exclusively vested in the grand jury, and both legally and morally it must be presumed that that power was wisely and properly exercised. But its -exercise completely exhausted all its power, and when the professional honor and integrity of its legal advisers were assailed it was without legal right or justification. Even if the Deputy Attorney General sought to withdraw the case, it may be that his, reasons were as cogent to him as the, reasons of the grand jury were to it for retention. A criminal charge is instituted by the people of the state through its prosecuting officers. When a grand jury hears testimony concerning the charge, that does not vest in it a right to hold the case for final action against the will of the prosecutor. This expression does not mean that the grand jury is in any wise limited in its power to inquire into all crimes committed or triable in the county, but it is directed to a case similar to the one in hand, where the evidence is voluminous and complex, and where the grand jury must of necessity depend upon the prosecutor and present the testimony. The people repose confidence as well as power in their prosecutor, and] it must not be presumed that he will abuse either. Even after indictment found, he may move the court to dismiss it, or he may decline to prosecute it, and so, surely, by parity of reasoning,

It has become a custom of almost invariable occurrence that the grand jury, at the close of its term, makes a presentment on some subject on which, frequently, no evidence has been heard. This, no doubt, proceeds from the zeal of its members to promote the general welfare by calling attention to certain conditions which they believe should be remedied. So long as they are confined to matters of general interest, they are regarded as harmless, even though a waste of time and effort, and after the ephemeral notice of the day has passed they are allowed a peaceful rest. But it is very different when the motives and conduct of the individual are impugned, ■ and he held to reprobation, without an opportunity to defend or protect his name and reputation, for it must be borne in mind that, if the gentlemen of the grand jury were to meet as an association of individuals and give expression to the sentiments contained in a presentment, little attention would be paid to them, and a healthy regard for the responsibility of utterances injurious to the individual would, in all probability, restrain exaggerated and unfounded statements. The mischief arises from a prevalent belief that a grand jury making the conventional presentment speaks with great authority and acts under the sanction of the court, thereby giving to its deliverance a solemnity which impresses the mind of the public. This is a grave error. The powers and duties of a grand jury are defined by law. No matter how respectable or eminent citizens may be who comprise the grand jury, they are not above the law, and the people have not delegated to them arbitrary or plenary powers to do that, under an ancient form, which they have not a legal right to do.

In the courts of many of the states of the Union there have been expressions of judicial opinion on this subject, and, while they vary as affected by the local jurisdiction and the particular facts andl circumstances, they all agree in holding as reprehensible an attack on private individuals by grand juries under the guise of a presentment. It is unnecessary to cita these numerous authorities; but two of recent date in our own state are worthy of attention. In Matter of Jones, 101 App. Div. 55 , 92 N. Y. Supp. 275 , a divided court refused to expunge a presentment which censured a public official; Jenks, J., writing the prevailing opinion:

“I think that if, under the guise of a presentment, the grand jury simply accuse, thereby compelling the accused to stand mute where the presentment would warrant an indictment so that the accused might answer, the presentment may be expunged; but I do not think that a presentment as a report upon the exercise of inquisitorial powers must be stricken out if it incidentally point out that this or that public official is responsible for omissions or commissions, negligence or defects.”

This is a recognition of the power of the grand jury to present a report, ex mero motu, of its investigation into the willful and corrupt

“All of the old forms of criminal pleading being abolished, the people being limited to an indictment which shall charge the commission of a definite crime and state the acts constituting such crime, and a presentment being the equivalent of an indictment in the common law, as it was understood at the time of making our state Constitution, it follows that any other action on the part of a grand jury, in dealing with a citizen, is without authority of law.”

It can be no detraction from the learned and scholarly prevailing opinion, nor in the slightest degree a diminution of that respect which should be entertained for the judicial action of that tribunal, to express that the dissenting opinion, in the words of Bacon, is founded on the “better reason.”

In Matter of Heffernan (County Court, Kings County, March, 1909) 125 N. Y. Supp. 737 , an application was made to set aside and expunge an indictment by the grand jury which censured by name certain public officers for neglect of duty and of the public interests. In granting the application, Dyke, J., said:

“Presentments should be made use of only where clearly necessary. Their use by a grand jury is more honored in the breach than in the observance, and in the present ease it has done an injustice to public officials which, in fairness, I shall do my part to set aside.”

Some states have abolished the grand jury system. This state yet preserves it, and it may be wise that it does so, for it is an institution that has indelibly impressed upon the pages of history a record for the protection of the citizen against the arrogance and oppression of power and has inspired'in the hearts of the lawless and corrupt a healthy fear of its powers and honesty. But its action should be checked when, from thoughtlessness or misconception of its jurisdiction or an exaggerated idea of its own importance, it arraigns the citizen in phrases accusing him of acts or conduct which in themselves are not criminal, thereby precluding him from the right guaranteed by the Constitution to every man to meet his accusers face to face before a jury of his peers, but which are the more insidious and harmful because they must remain without answer or denial. Such is this case, and in the interests of justice I am constrained to protect the Attorney General and his deputies from an injustice by di