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Opinion of the Court.

attorney, he “shall not permit any other person to take a copy of the same, or of any portion thereof, nor to read the same nor any portion thereof, except upon a written order of the court duly made after hearing of the said district attorney. All of the said original minutes shall be kept in the custody of said district attorney, and neither the same nor a copy of the same or of any portion of the same shall be taken from the office of said district attorney, excepting as above provided.” This statute is quoted in In re Montgomery, appellate division of supreme court of New York, found in 110 N. Y. Supp., 793. It seems that in the cases where the inferior courts of that state indulged the accused in his motion for inspection, it was as a general rule, for an inspection relating to his contemplated attack on the validity of the indictment, or to aid him in procuring its dismissal; or to obtain names of witnesses for the prosecution, and we find no case where such inspection was ordered by the court on or before the trial, in order to aid the defendant in preparing for trial on the general issue—a plea of not guilty.

Clark, J., in the case last referred to, laid down the following proposition: “An examination of the minutes of the grand jury cannot be had for the purpose of assisting defendant in his preparation for the trial or of putting the state's testimony in the hands of defendant, and the sole purpose for which such examination may be had is to enable defendant to move to set aside the indictment on the ground that it is not properly found, indorsed and presented, or that an improper

Opinion of the Court.

person was present during the session of the grand jury, or where his constitutional rights have been invaded; and such examination is not a matter of right and does not depend upon whether there had been a preliminary examination, but depends in each case upon the determination by the court to which the application is made that such examination is necessary to enable defendant to move to dismiss the indictment upon the grounds provided, and in such case the motion should be granted.” The court there cites and reviews the various decisions in that state and the right to such inspection and confines it to the limit stated. To this extent it is an authority in this case, and it is interesting as giving the rise and progress of the disposition to seek knowledge of what transpired in the grand jury room and how the different inferior courts regarded it.

The case of Eighmy v. The People, 79 N. Y., 546, cited against the exceptions, shows that when the case was moved for trial, the prisoner's counsel, before the jury was empaneled, moved the court to order the district attorney to disclose what evidence was produced before the grand jury, and whether any other evidence was produced, save such as had been furnished the prisoner, with a view of moving to quash the indictment, on the ground that there was not sufficient evidence before the grand jury to justify it. The motion was denied by the trial court and this was affirmed, the reviewing court stating, that granting or refusing the motion was a matter of discretion—discretionary where the

Opinion of the Court.

purpose was the quashing of the indictment. Our canvass of the authorities has been carefully made, and we find no important case where such a motion has been granted in order that the inspection might be used on the trial or in preparation for the same.

In the case at hand, the quashing or dismissing of the indictment was not contemplated in the use of the grand jury testimony, had it been turned over to the defense. No particular purpose or use was disclosed to the trial court in the application for the inspection. Yet the court made the broad order of delivery.

We are not disposed to follow the New York practice even as limited by the decisions of the inferior courts of that state, for it is easily gathered from the various cases in which the question arose, that embarrassing conditions followed the enforcement of such a rule of practice, which it seems, received its particular impetus in the case of People v. Molineux, 27 Misc. Rep., 60. While certain advantages may accrue to a defendant by disclosing the state's testimony, there are higher considerations to be weighed—the public peace and welfare. As said in Thompson & Merriam on Juries, latter part of Section 623: “If the state had a right to a new trial, or any means of vacating verdicts of acquittal obtained by fraud or perjury, the reasons in justification of a rule which exposes the state's evidence to the accused in advance of the trial would be more clear." On page 662 (Section 608) of the same authors, it is said concerning disclosure of the state's evidence in a preliminary examination: "Besides

Opinion of the Court.

the advantages which we have enumerated as accruing to the accused from a preliminary examination, there is another and very considerable advantage which is the necessary result of this proceeding. The prosecution is obliged to disclose the evidence to the accused before he is put on trial for the charge. There is no doubt that the generality of accused persons are justly accused. Persons who have committed grave offenses do not hesitate at subornation of perjury, and serviceable persons are seldom found wanting to counteract the evidence of the prosecution by false swearing.”

In quoting this language, we disclaim any imputation of bad motives or

of bad motives or evil design to either the defendant or his counsel in this case. We are dealing here with principles rather than persons.

Another argument advanced is, that the prosecuting attorney represents the public of which Rhoads is one, and that he acts in a semi-judicial capacity in discharging his duties, and that he should aid the defense when aid is needed. We agree that this officer should not endeavor to convict an innocent person, and he should not suppress or conceal evidence that might tend to acquit the prisoner. But that he should assist in the defense, we deny. The state furnishes counsel to indigent prisoners and pays them. The trial, when the issue is joined, is not a friendly recitation, but a real trial. No morbid sentiment or sympathy for one charged with crime should overshadow the rights of the public. In these days criminals are both skilled and cunning, and it is a contest between

Opinion of the Court.

the people and the criminals for the mastery. Neither the rules of courtesy, or supposed equitable considerations should be allowed to subvert the practice sanctioned by long experience.

The state cannot compel the prisoner at the bar to submit his private papers or memoranda to the state for use or even examination, for he cannot be required to testify in the case, nor to furnish evidence against himself.

Then why should the accused be allowed

allowed to rummage through the private papers of the prosecuting attorney? Neither the sublime teachings of the Golden Rule to which we have been referred, nor the supposed sense of fair play, can be so perverted as to sanction the demands allowed in

this case.

The exceptions are sustained.

SUMMERS, C. J., Crew, SPEAR, DAVIS and SHAUCK, JJ., concur.

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