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COMMONWEALTH v. JUDGE SMART (12/06/51)

December 6, 1951

COMMONWEALTH
v.
JUDGE SMART



Original jurisdiction, No. 1811 Miscellaneous Docket, in re Petition of Commonwealth of Pennsylvania for Writ of Prohibition v. Honorable Walter P. Smart, Honorable A. Marshall Thompson, Judges of Court of Quarter Sessions of Allegheny County et al., intervenors. Petition granted.

COUNSEL

Clair V. Duff, Assistant Deputy Attorney General, with him Earle T. Adair, Special Deputy Attorney General and Robert A. Doyle, Assistant Deputy Attorney General, for Commonwealth.

Earl F. Reed, with him Kenneth G. Jackson, Charles H. Sachs, Herbert B. Sachs and Thorp, Reed & Armstrong, for defendants, intervenors.

Before Drew, C.j., Stern, Stearne, Bell, Ladner and Chidsey, JJ.

Author: Stern

[ 368 Pa. Page 631]

OPINION BY MR. JUSTICE HORACE STERN

The petition here presented is for a writ of prohibition to restrain the Court of Quarter Sessions of Allegheny County from enforcing orders made by it permitting certain defendants who had been indicted by the Grand Jury to take testimony in regard to matters that allegedly occurred during the course of the proceedings of that body.

[ 368 Pa. Page 632]

A regular Grand Jury returned true bills of indictment against two individuals and two corporations, charging bribery. Their counsel filed motions to quash the indictments on the ground that the Deputy Attorneys General who attended the jury read to them a presentment which had been returned by a Special or Investigating Grand Jury and which was said to contain unfair statements concerning the defendants; also on the ground that the Grand Jury's action in finding true bills was influenced by coercive and improper conduct on the part of the Deputy Attorneys General in that they told the jurors that they must act in accordance with instructions given them by the Deputy Attorneys General as to the law; that the instructions they did give were incorrect; that they advised the Grand Jury that the Attorney General was desirous of securing indictments of the defendants; that they made derogatory remarks concerning the defendants; that they themselves testified and gave evidence against the defendants although their names were not endorsed on the bills of indictment as witnesses. On the same day that the motions to quash the indictments were filed counsel for defendants also presented petitions that the court should permit testimony to be taken in support of those motions and should direct the official reporters who took notes of and transcribed the proceedings before the Grand Jury to make available to the defendants a complete copy of that portion of the proceedings which set forth in full all statements, directions, comments or instructions made or given to the Grand Jury by any of the Deputy Attorneys General who attended its deliberations. The motions to quash the indictments, as well as the petitions to take testimony, were sworn to by one of the defendants on information and belief. Later the motions to quash the indictments were amended by adding to each a statement that the averments contained therein were "based upon information

[ 368 Pa. Page 633]

    received in an interview with one of the members of the said Grand Jury which returned said indictment, said interview having been held with said former grand juror subsequent to the dates on which said indictment was returned, the defendants appeared voluntarily and posted their recognizances as aforesaid and the said Grand Jury was discharged." The Commonwealth moved to dismiss the motions and the petitions on the ground that matters alleged to have occurred in the Grand Jury room ought not be investigated by either a public or a private examination of the members of the Grand Jury, and that the court had no right to inquire into their proceedings. The court, one of the three judges dissenting, filed orders granting the defendants' petitions to take testimony and refusing the Commonwealth's motions to dismiss them. There followed the present petition of the Commonwealth to this court for a writ of prohibition to prevent the court below from enforcing or carrying its orders into effect and from inquiring, or permitting defense counsel to inquire, into the proceedings before the Grand Jury. We gave leave to the defendants to intervene and they accordingly filed an answer to the petition.

In view of the large amount of literature that has been written concerning the origin and history of the Grand Jury as one of the administrative agencies of the criminal law employed for centuries throughout the Anglo-Saxon world it is wholly unnecessary to attempt to elaborate upon those themes. Likewise there is no need to stress the vital importance of the maintenance of secrecy in regard to the deliberations and proceedings of Grand Juries, for the policy of the law in that respect has been so long established that it is familiar to every student of the law. The form of the oath of ...


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