whether he would be able to have a bench warrant issue. His view of it was that he could do so as of course. He very courteously brought the question to the attention of the court. It was arranged for what was in effect a case stated. He presented an indictment upon which the court was willing to issue a bench warrant if assured that probable cause existed. He contended that all required of him was to present the indictment. The question was argued before the court in banc. The court was in doubt respecting its power to refuse a warrant. The question could only be taken to the appellate court after a refusal so the warrant was pro forma refused, accompanied with an opinion expressive of what it was thought would result under the proposed new practice. The United States attorney found or thought the indictment was, for some reason, defective. He thereupon submitted a new bill to the grand jury, and on another true bill a bench warrant was asked for and pro forma refused. A mandamus was applied for and allowed by the Supreme Court, which ruled that the trial court had no control over the issue of the bench warrant, but that it must issue.
We see no escape from the conclusion that the return of a true bill is a finding of probable cause, and that the court has no power to review this finding so as to find otherwise. This, it will be noted, has always been the practice. Before indictment, the courts on habeas corpus heard the evidence, and, if no probable cause appeared, discharged the relator. After indictment found, it was, as we have before pointed out, not the practice to sue out a writ.
An indictment may, of course, be quashed for a defect appearing upon its face or for irregularity. The question here is, as we view it, whether the court can quash an indictment because of a finding by the court of the absence of probable cause and whether the court can inquire into the secrets of the grand jury room as the basis for the finding that a true bill was found without evidence of probable cause.
We answer both questions in the negative.
The questions raised may be restated and summarized as follows:
(1) Where on its face an indictment is not open to attack, and there is no charge of irregularity, may a court inquire into the question of probable cause and make its own finding thereon? We hold it cannot.
(2) Where a motion to quash is grounded upon the averment (as here) that a true bill was found without any evidence to support the finding of probable cause, may the court inquire into the truth of the averment, and, if the fact is found, quash the indictment? We hold that it can, but in making the inquiry the court is bound to observe the other doctrine of the law or rule of policy that the transactions before the grand jury cannot be disclosed or be inquired into.
The real question in the instant case is thus seen to be a very narrow one. A grand jury has the lawful power to return a true bill only upon evidence of probable cause. If a true bill is returned in the absence of any evidence, the indictment should be quashed. If again, however, the fact of no evidence cannot be shwn otherwise than by a disclosure of what transpired before the grand jury, the door of inquiry is shut as the fact cannot be thus made to appear.
The motions are all denied, with exceptions allowed to defendants.
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