#### The People of the State of New York, Plaintiff, *v.*Roland B. Molineux, Defendant.

(Court of General Sessions of the Peace, New York County,

March, 1899.)

Crimes — Inspection, of minutes of grand jury — Absence of preliminary examination.

A motion upon thé part of one indicted for murder in the first degree .to inspect the minutes of the grand jury upon which the indictment was found and to procure a copy thereof may be entertained by the court, and is addressed to its discretion.

Where it appears that the defendant was indicted without having had a preliminary examination before a magistrate, and it is charged by affidavit that the indictment was found upon evidence insufficient in law to sustain it, the motion will be granted.

Application for au inspection of the stenographer’s minutes of the testimony before the grand jury upon which the indictment was found, and for a copy of the said minutes.

Asa Bird Gardiner, district attorney, for People.

Weeks, Battle & Marshall (Bartow S. Weeks and George Gordon Battle, of counsel), for defendant.

Blanchard, J.

The defendant is charged by indictment filed March 1, 1899, with the crime of murder in the first degree in having, on December 28, 1898, feloniously caused the death of one Katharine ,J. Adams, by administering to- her a deádly poison, and this is a motion for amorder allowing the defendant and his counsel to inspect the minutés of the grand jury upon which the indictment was found, and requiring the district attorney to furnish a copy of the minutes to the defendant.

*61A brief statement of the facts preceding the finding of the indictment, as shown by the moving papers, is as follows:

Katharine J. Adams died in the city of' Hew York on the 28th day of December, 1898, under circumstances which required investigation by a coroner’s jury. At the inquest the defendant, having been subpoenaed by the coroner as a witness, appeared and testified. His counsel was present but was not permitted to examine him, or to examine or cross-examine other witnesses, or to take any active part as such counsel in the proceedings. The coroner’s jury found a verdict to the effect that the death of the said Katharine J. Adams was caused by poison administered to her by one Harry S. Cornish, to whom it had been sent through the mail by the defendant. Thereupon, the coroner held the defendant for examination and committed him to the city prison. The examination was set down for March 1, 1899. On that day, on motion of the district attorney, the examination was adjourned to March 3, 1899. In the meantime, on the presentment of the district attorney, the grand jury had entered upon an investigation of the circumstances surrounding the death of said Katharine J. Adams, and, as a result, on March 1, 1899, found said indictment against the defendant. On motion of the district attorney, the examination before the coroner was discontinued, the defendant, by his counsel, protesting against and objecting to such discontinuance, and demanding that the examination proceed. The defendant was called upon to plead to the indictment in this court, and thereupon makes this motion, in advance of pleading.

It is within the power of the court to entertain a motion to inspect the minutes of the grand jury, and it is addressed to its discretion. People v. Naughton, 38 How. Pr. 430; Eighmy v. People, 79 N. Y. 546 (560) ; People v. Bellows, 1 How. Pr. (N. S.) 149. And the fact that the defendant was indicted without having had a preliminary examination before a magistrate furnishes a strong inducement to the court to look upon the application with favor. People v. Naughton; People v. Bellows, *supra.*

In the very recent case of People v. Willis, County Court, Kings county, Aspinwall, J., on the defendant’s motion for inspection of the minutes of the grand jury, inquired: “Was there any examination before a magistrate?” and receiving a negative answer, the judge said: “It is the practice of this court to grant a motion of this kind where there has been no preliminary examination.” See motion papers *62in People v. Kane, Supreme Court, Second Dept., filed February 22, 1:899. In opinion of Jenks, J., in People v. Kane, *supra,*it is stated: “For the most part, criminal proceedings are begun by the issue of a warrant, whereupon there follows, an examination before a magistrate. Then the defendant may face the witnesses, may cross-examine them, and may give evidence on his own part, all before he can be held for the action of the grand jury. Where a prosecution is begun in the grand jury room, these privileges are withheld from the defendant, and he must proceed or stand trial, apprised .only by the accusation, of the indictment and by the names of the witnesses indorsed upon it. A defendant who seeks inspection of the grand jury minutes on the sole plea that he has been deprived of á preliminary examination should have the ear of the court.” ■

In People v. Harris, the defendant was indicted for com-. mitting a murder by the administration of poison. He had no preliminary examination before a magistrate, and the circumstances in that case were in all essential features similar to those existing in this case. The counsellor Harris moved for an inspection of the minutes of the grand jury. Cowing, J., in an opinion, dated June 30, 1891, filed in this court, held: “ In my judgment, the defendant, under the circumstances disclosed on this motion, is fairly entitled to inspect the evidence given by the People’s witnesses before the grand jury, and I fail to see how the People will suffer any prejudice by allowing such inspection.”

It is contended by the district attorney that this is a motion for an unusual and extraordinary privilege, and that the defendant should not be permitted to inspect the minutes of the grand jury without first showing the court extraordinary cause or necessity therefor. I cannot sustain such contention. There are many precedents for. an application like this, and the .rule is that the defendant must show cause which shall be sufficient in the judgment of the court. I find no authority for the proposition that he must show extraordinary cause.

Among the reasons pointed out by the defendant why this application should be granted, it appears that at the inquest tbe district attorney insisted that the testimony given by the defendant and other witnesses indicated that the defendant had committed the alleged murder, but it does not appear but that the defendant, had he béen permitted to do so, might have furnished testimony in his:own behalf which would have tended to explain or nullify *63the testimony adverse to him. And the defendant’s counsel, in his moving affidavit, makes allegations which, in effect, charge that the indictment in question was found upon evidence that is insufficient in law to sustain it, and insists that the defendant should _ not be put to the expense, notoriety and ignominy of a public trial without first being allowed an opportunity to ascertain whether the testimony before the grand jury was sufficient to establish a *prima facie*case against him in the eyes of the law, upon which he can be legally put to his defense. This contention of the defendant is sustained' by abundant authority. If the indictment was found without sufficient legal evidence to sustain it, it is not an ' indictment in contemplation of law, and cannot stand. Code Grim. Pro., §§• 256, 258; People v. Clark, 8 N. Y. Crim. 169; People v. Brickner, id. 221; People v. Met. Trac. Co., 12 id. 405.

People v. Clark, *supra,*appears to clearly establish the proposition that this court has, independent of statute, an inherent power over the proceedings upon which the indictment is based, and that it should exercise such inherent and independent power when a proper case is presented and in furtherance of justice. The grand jury is a part of the court, and it cannot be maintained for a moment that all its proceedings upon which an indictment is found are not open to inspection by the court. To hold otherwise might result, in particular cases, in changing what it meant to be a fair and impartial investigation, by a part of the court, for the protection of society, into a star chamber inquisition.

The presumption of innocence always attends the accused, and that wise and ancient rule of law should be as much respected and enforced in the preliminary investigations of an alleged crime as at any other stage of criminal proceedings. Indeed, this presumption should then and there be most strenuously insisted upon. Every step in a proceeding which may result in depriving a human being of life or liberty should be taken with the most jealous care for the rights of the accused, and the zeal of a prosecuting officer can never be a justification for the punishment of the innocent Too many safeguards cannot be devised to protect the innocent in that most valuable of all earthly possessions, a good name and an unblemished reputation, and we cannot ignore the fact if we would that serious injury in greater or less degrees is sustained by every person accused of committing a crime, even though his complete innocence may thereafter be fully established.

A humane interpretation of the law, therefore, is that the grand *64jury is forbidden to find an indictment without sufficient legal evidence.

We find nothing in the record before us upon this application to indicate that the learned district attorney has not fully performed his duty as a public prosecutor in a faithful and efficient' manner; but it has not been shown that the inspection by the defendant of the. minutes of the proceedings of the grand jury, upon which the indictment against him was found, will in any way be detrimental to the People’s case, or to the due administration qf justice, or against public policy; and after a careful consideration of the arguments of counsel, and of the facts as presented by the motion papers, I am of the opinion that, in the interest of' a proper administration of justice and in fairness to the defendant, his motion for an inspection of the minutes of the grand jury should be granted,

Motion granted.