UNITED STATES V.
UNITED STATES V. SIMMONS.,
(CiTcuit Court, S. D. New York. January 17,1891.)
INDICTMENT-FINDING-MoTION TO QUASH.
The fact that the grand jury, after voting not to find an indictment, but, before reporting to the court,' reconsidered their decision, and voted to find one without hearing any new evidence, is no ground for quashing the indictment.
SAME-STENOGRAPHER IN GRAND JURY
The fact that a stenographer who was in the employ of the district attorney at the latter's request attended before the grand jury, and took notes of the testimony of a witness, is no for quashing an indictment, as such stenographer was an assistant to the district attorney.
Motion to quash indictment. Edward Mitchell, U. S. Atty., and John 1. Mott, Asst. U. S. Atty. Chas. A. Hess, Edward H. Murphy, and S. S. Joyce, for defendant.
BENEDICT, J. In this case the indictment against the accused was filed on the 7th day of October of last year. The accused appeared in court, and entered a plea of not guilty, but leave was given to withdraw such plea on or before the 20th of October. During that period the plea of not guilty was not withdrawn, nor was any motion made to quash the indictment. On the 10th of December following, the question of fixing a day for the trial on the indictment was presented to the court, and, after hearing counsel for the defendant, it was arranged that the case be set down to be tried on the first day of the January term; no intimation haVing been given of an intention to move to quash the indictment. Now on the day fixed for trial the defendant presents a motion to quash the indictment. This motion, it appears, was originally noticed to be beard at a stated term of the circuit court to be held by the Honorable WILLIAM J. WALLACE on the 12th day of January, two days before the opening of the present term. The motion was not heard by Judge W AU.ACE, and is now presented to the court at the regular January term., Inasmuch as a motion to quash an indictment after plea can only be made on leave of'the court, reason for refusing such leave in this case could be found in the delay to make this application until the day fixed f?r trial, and after the lapse of several months since the finding of the indictment. The proceeding savors too much of an effort for delay to receive the countenance of the court, but the grounds upon which it is sought to have the indictment quashed upon examination prove insufficient, and I am of the opinion that the motion, if it had been made in time, must have been denied. The grounds of the application are stated in the moving papers by the following language: "Wherefore, ,deponentasks that-the indictment may be dismissedupon the That the same was improperly found. The grand jury, if it reconsid'ered its determination not to lind a true bill, did so imptoperIy and illegally, if no fnrther evidence was furnished to the said grand jury between tim(lof UI1,.dllcisiqn not to find a true bill and its t.Q find a true bill, anifitsp'nisentment to' the court. 'Secondly. The presence of a v.46F.no.1-5 . .
FEDERAL REPOll.'fER I
stenographer in the grand jury room, taking the testimony of witnesses for the purpose of transcribing the same, was improper, illegal, and contrary to law." In support of the first ground, the moving papers show that the grand jury, at some time during their determination, voted not to find a bill after having so voted,reconsidered their neteragainst the accused, mination;and voted to find a bill. This was done, so far as appears, without any new evidence being presented to the grand jury subsequent to their vote not to find a bill. These facts, in my opinion, furnish no ground for quashing the indictment.. It was the right of the grand jury to reconsider their vote without taking additional testimony, certainly before any report by the jury to the court, and while the matter was still before them. There are many authorities that sustain this proposition. The facts in support o£the second ground of objection, which are before the court by the admission of the district attorney, are. these: On one occasion Edmund T. Davis, a stenographer, who is one of the employes of the district attorney, attended before the grand jury at the request of the district attorney, by virtue of his employment in the office of the district attorney, and took stenographic notes of the testimony of one witness, and then retired. He was Dot present at any deliberation of the grand jury, nor on the day upon which the indictment was found. In this there was nothing illegal or irregular. By the settled practice of the courts of the United States, the district attorney and his assistants are permitted to attend before the grand jury. The practice has been stated as follows: ." It is: a settled practice for the clerk and assistant.!l of the district attorney to attend the grand. jury, to assist in ing the. accusations presented before them." See note in Digest, . p.:,209. See, .also, U. S.v. Kilpatrick, 16 Fed. Rep. 765, C. 1883,}cited here by the defense. Mr. Davis, hebe(Dist.. Ct.· ing one of the. staff of .the district attorney, employed by authority of the .government for the purpose of taking notes for the use of the district attorney, in the dischllrge of his offic.ial duties was permitted, by the practice of thecourtj to attend as he did before the grand jury. He comes .within the. d signation of an assistant to the. district attorney, as understood in practice, and the mere fact thathe waS present, and took notes of thetestimouy of one witness; afford!,! no ground on which to quash the indictment. .'rhis case differs from the case' decided in the state court in Louisial1ll.; t9 which reference has been made by the defense. In the case of Sta,te v. Natali,! an indictment seems to have been reporter quaahed because of thepresenc£j before the jury of the who was.$J;lotficial having no copnc:letionwith the district of the not under his control. '. That is not this case. attorney's office, . stenographer a duly-appointed of the district .attorney ,acting 88 such by' direction of the district attorbey . I may add that the laws of the state of New York (Laws 1885, c. 348) expressly
I A deotston of Judlle Buo, of the criminal district court tor the parish of Orleans, La.. and not . '. . .
67 provide for the &PPQintlDentofa;;tenographertoiake the testimony given before grand juries,in,the pountyof New York; and, while a statute of the state does not control the practice of the courts of the United. States in the e:)(istence of such a, provision in the laws of the, state indicates that the presence of a stenograpf16r: before a grand jury, is, uqt inconsistent with a due administration of justice in Griminltl qaSe6., , ,]1or these reasons, the motion to quash the is
U.sITED STATES V. CLAASEN.
(Circuit Court, S. D. New York. April 23, IS!}1.)
, Where toe defendant in a criminal case presents to thejudge niinutes onhe ..trial, in, some of his exceptions are omitted, and the same is signed by th<! judge, and used in moving for arrest of judgment and for a new trial, nofurther 'bill of' exceptions should be given alte" issuance '(Jf a writ of error, since the de'fen04nt Alts:thereby waived the exceptions omitted frol!! the minutes.
EXCEPTIOlifS-W AIVER-CRIMlXAL LAW.
At Law. ,Edward Mit<;hcll, for the United ·States. Hector 1.1'1. Hitchings, for defendant.
BENEDICT, J. This is an application on the part of the defendant for a pill of ex,ceptions. A state,mpnt of the proceedings had in the case is nece",sary to an understanding of the questions involved. The defendant, having ,been indicted for embezzling and misapplying the funds of a national bank, of which he was president, was on the 28th day of May, 1890,Jound guilty by the jury. During the trial many exceptions were taken by the defendant, which were duly noted. At that time there was no law providing for a writ of error in criminal cases tried in the circuit courts of the United States. By the rules of the circuit court of the southern district of New York, however, adopted March 12, 1879, provision was made for the correction of any error committed in the trial of a,criminal case by means of a motion for a new trial and in arrest of judgment, to be heard before the three judges authorized by section 613 of the Revised Statutes to hold the criminal terms of that court, the, same to be made upon minutes of the trial to be settled by the judge who tried the case, and before the first day of the term next subsequent to the term at which the trial is had. In the present case, after the verdict, and before judgment, minutes of the trial, conat the trial and omitting taining some exceptions that had been others, were presented by the defendant for settlement, and the same were by consent settled and signed by the judge. On the 9th day of July, 1890, a printed copy of the minutes as settled and signed was filed, and thereupon becallle. part of the record. Thereafter, and on the 24th day of October, 1890, the cause carne on to be heard before Judges