Commonwealth v. Mead

Bigelow, J.

1. Evidence tending to prove the great muscular vigor and strength of the deceased was clearly incompetent. It did not show provocation or that the homicidal act was committed in selfdefence, or was otherwise excusable or justifiable. The issue was not as to the degree of strength and violence which the deceased was capable of exerting, but how severe and aggravated was the assault which he actually committed on the prisoner. Commonwealth v. Hilliard, 2 Gray, 294. For a like reason evidence that the deceased was in the habit of seizing persons in a peculiar manner by the throat was inadmissible. The defendant was allowed to prove the manner in which the deceased actually assaulted him at the time of the homicide, and this was the only evidence on that point which was relevant or material to the issue.

2. The only other question arising in the case is, whether the testimony of grand jurors is admissible to prove that one of the witnesses in behalf of the prosecution testified differently on his examination before them from the testimony given by him before the jury of trials. As to the competency of such evidence the authorities are not uniform. The weight of them is in favor of its admissibility. On principle it seems to us to be competent.

The reasons on which the sanction of secrecy which the common law gives to proceedings before grand juries is founded are said in the books to be threefold. One is that the utmost freedom of disclosure of alleged crimes and offences by prosecutors may be secured. A second is that perjury and subornation of perjury may be prevented by withholding the knowledge of facts testified to before the grand jury, which, if known, it would be for the interest of the accused or their confederates to attempt to disprove by procuring false testimony. The third is to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape and elude arrest upon it, ■before the presentment is made. To accomplish these purposes, the rule excluding evidence, to the extent stated in Commonwealth v. Hill, 11 Cush. 140, seems to be well established, and it is embodied substantially in the words of the oath of office which each grand juror takes on entering on the discharge of bis duties.

But when these purposes are accomplished, the necessity and expediency of retaining the seal of secrecy are at an end. Cessante ratione, cessat regula. After the indictment is found and presented, and the accused is held to answer and the trial before the traverse jury is begun, all the facts relative to the crime charged and its prosecution are necessarily opened, and no harm can arise to the cause of public justice by no longer withholding facts material and relevant to the issue, merely because their disclosure may lead to the development o,f some part of the proceedings before the grand jury. On the contrary, great hardship and injustice might often be occasioned by depriving a party of important evidence, essential to his defence, by enforcing a rule of exclusion, having its origin and foundation in public policy, after the reasons on which this rule is based have ceased to exist. The case at bar furnishes a good illustration of the truth of this remark. No possible injury to the interests or rights of the government that we can see could happen by a disclosure of the testimony given by the witness before the grand jury, which was excluded by the ruling of the court. Certainly none has been suggested by the learned attorney for the Commonwealth. On the other hand, it is clear that the rights of the accused might be greatly affected and his peril much increased, if he can be shut out from showing the fact that an important witness against him is unworthy of credit, or that his testimony before the jury of trials is to be taken with great caution and doubt, because on a previous occasion, when called to testify on oath, he had given a different account of the same transaction from that which he has stated in his evidence at the trial. In the absence of a binding authority on this point, we think the exclusion of such evidence is not sanctioned by any rule of law or sound principle of public policy.

Exceptions sustained.