Commonwealth v. Bannon

Bigelow, C. J.

Assuming that the question which the defendant seeks to raise in this case, is rightly before us, we are all of opinion that there has been no irregularity in the proceedings of the grand jury, and that the indictment against the defendant has been duly found and presented.

It is true, as the defendant contends, that the grand jury is a constituent part or branch of the court, and that it can be organized and empowered to discharge the legal functions imposed on it only by virtue of the authority which it derives as a body of men sworn and impanelled in open court in the mode prescribed by law, (Gen. Sts. c. 171, §§ 1-6,) and that the exercise of their functions is limited to the time during which the term of the court at which they are summoned to attend continues. But it is also true, that after they are duly organized, the larger part of their legitimate functions is to be performed by them as a separate and independent body acting by themselves apart from the court, and that in their deliberations and action they are subject to no control or direction other than that which they may receive in the charge of the court before they proceed to enter on their duties, (Gen. Sts. c. 171, §§ 7-10,) or by instructions subsequently given to them in open court. No doubt they may, if they see fit, invoke the powers of the court to assist or protect them in the performance of their duties. Heard v. Pierce, 8 Cush. 388. This is a right which appertains to the body as an “ appendage ” or branch of the court, and is essential to enable it to perform its legal duties with efficiency and without interruption or molestation. But the existence of such right does not lead to the inference which the counsel for the defendant seeks to draw from it. It does not follow that the grand jury can properly exercise none of their functions without the actual presence or aid of the court, because they cannot issue process to compel the attendance of witnesses or to punish disorderly and contemptuous behavior. In all matters within the scope of their authority, on which it is their legal duty to deliberate and to act by themselves, their power is plenary. Its exercise cannot be controlled or interfered with by the court. If the jury are duly summoned and impanelled; if all their proceedings are regular, and their presentments are duly made to the court, we are at a loss to see on what ground it can be plausibly maintained that any legal formality is wanting which is necessary to give validity to their action. Certainly no essential right or privilege of an accused party can be said to be in any degree violated or infringed. No part of the proceeding would have been different, if the court had continued in actual session during the entire time while the jury were engaged in the transaction of the business before them. The temporary absence of the judge from the city and county, while the term of the court was held, can have had no possible effect on the proceedings.

But it is said that on the facts stated in the defendant’s plea the term of the court had lapsed, and that no further valid act could be done after the time when the judge returned and resumed the transaction of business in open court. Such a result would certainly be contrary to the intent with which the course adopted by the judge was taken. It is not a case of neglect or omission to hold a term of the court at the time appointed by law. The court was duly opened for the transaction of business, and it was allowed to continue without adjournment from day to day for the very purpose of enabling the grand jury to perform that portion of their duty which did not require the presence and action of the judge, while he was absent exercising judicial functions in another county. We know of no rule of law which requires during a continuance of a term, after it has been properly begun, either that there should be daily adjournments of the court, or that the judge should remain in the town or county where the court is holden during the whole time that juries, either grand or petit, are engaged in deliberating and acting on matters properly submitted to their consideration. Such has never been the practice in this Commonwealth, and to require it would cause serious inconvenience, while it would produce no practical benefit in the administration of justice.

It has never been supposed that the verdict of a jury was invalid, because it was found and signed at a time when the court was not in actual session, or that it was essential to the due and orderly discharge of the duties of traverse jurors that the judge should be always at hand during their deliberations, so that he might at any moment be called into court. All that has ever been deemed necessary is, that the court should be opened and the judge should be present whenever it is. necessary that any proceeding should take place which the law requires to be had In the presence and with the concurrence or sanction of the court. We can see no reason why the same rule is not applicable to the proceedings of the grand jury. See Heard v. Pierce, ubi supra. The facts of that case, as they existed at the time the assault took place, are not fully stated. But it is well known to some of us, that the grand jury were conducting the business before them at that time under circumstances substantially the same as existed when the present indictments were found.

Exceptions overruled.