#### Havenor, Plaintiff in error, vs. The State, Defendant in error.

*May 9*

June *23, 1905.*

*<Criminal law and practice: Trial: Misconduct of judge: Communication with jury in absence of accused and his counsel: Prejudicial error: Immunity from punishment: Records of grand jury: Inspection: Evidence.*

1. In a criminal prosecution, communications liad between tbe jury and tbe trial judge after tbe jury bad retired to deliberate upon tbe verdict and in tbe absence of accused and bis counsel, tbougb not prompted by improper motives or influencing tbe jury in arriving at tbeir verdict, are prejudicial and sufficient to warrant a reversal.

■2. Under sec. *4078,*Stats. 1898, as amended by eh. 85, Laws of 1901, if otherwise unobjectionable, the minutes of the testimony of an accused given before a grand jury, and the testimony of grand jurors to prove what an accused testified to before them pertaining to the transactions for which he is on trial, are admissible as evidence to establish the accused’s immunity from prosecution.

:3. The minutes of the clerk of a grand jury of their proceedings, kept under the provisions of ch. 90, Laws of 1903, are not a .public record open to the inspection of all persons.

■4. The record of the proceedings of a grand jury is secret, and such secrecy must be maintained and kept inviolate within the bounds prescribed by the statutes and the decisions of the supreme court.

5. One accused of a crime is not entitled to an inspection of the records of a grand jury, in so far as they relate to the testimony given by him before the grand jury concerning the transaction involved upon his trial.

■6. One accused of a crime is not entitled to the inspection of the records of a grand jury, either before or at his trial, for the purpose of preparation for trial, or for-laying the foundation for the impeachment of immune witnesses, whose testimony may have been different on the trial from that given before the grand jury.

7. The records of a grand jury’s proceedings as kept by the official stenographic reporter are not official statements which in themselves constitute proof of the acts thus reported, but are mem-oranda made by the official in the course of his official duties, and can only be used in evidence when the official can testify *445that at or about the time the records were made he knew their contents and the accuracy thereof.

8. Such records may, however, when proper, he used either to aid. the witness in his present recollection or in his past recollection. of their contents.

Ebeoe to review a judgment of tbe circuit court for Milwaukee county;: OrreN T. Williams, Circuit Judge.

*Reversed.*

Tbe plaintiff in error stands charged with tbe offense of' bribery as defined in tbe statutes of tbis state. He was arrested, brought before tbe court, and prosecuted to conviction and judgment in tbe circuit court for Milwaukee county. To tbis judgment be prosecutes tbe writ of error from tbis court. Plaintiff in error was duly elected and was serving as aider-man of tbe city of Milwaukee in tbe month of June, 1898, tbe time of tbe commission of tbe alleged offense. Tbe facts-material to and involved in tbe consideration of tbe errors, assigned and argued will be stated in tbe opinion.

Eor tbe plaintiff in error there was a brief by Turner,. *Pease & Turner*and O'Connor, *Schmitz & Wild,*attorneys, and *J. L. O'Connor*and *W. J.*Turner, of counsel, and oral, argument by *Mr. O'Connor*and *Mr. Turner.*

Eor tbe defendant in error there was a brief by tbe *Attorney General*and *F. F.*McGovern, district attorney, and *Walter D. Corrigan*and *Guy D.*Goff, of counsel, and oral argument by *Mr. Corrigan.*

Siebecker, J.

After tbe jury bad retired for deliberation as to their verdict in tbe case they sent a communication to-tbe presiding judge, through tbe bailiff having them in charge,, requesting him to come before them for tbe purpose of answering some inquiries concerning tbe case. Tbe judge responded by stepping into tbe doorway of tbe room where they were deliberating, whereupon a juror propounded some questions to him as to tbe right of immunity of persons who bad. *446appeared and testified before a grand jury in transactions involving tbe offense of bribery. In reply tbe court informed them that be could not answer tbe questions, but that tbe instructions given them fully covered tbe subject of 'tbeir inquiry, and that some of tbe matters inquired about were excluded from tbeir consideration by these instructions. The court also offered to read part of tbe instructions or to submit to them tbe charge given. Tbe record is not clear as to whether or not tbe written charge, as given, was thereafter submitted to tbe jury. According to tbe statements of some jurors they received it with some paragraphs stricken out by tbe court, but still legible, and they were read by them. According to tbe statement of tbe judge, instead of these paragraphs being obliterated they were covered by paper pasted over them. This proceeding occurred in tbe absence of the plaintiff in error, bis counsel, and tbe court officers, and is alleged to constitute reversible error. Tbe result of tbe adjudications on this subject is to tbe effect, that all proceedings in a case should be open and public and in tbe presence of tbe parties, whenever practicable, so as to afford them all reasonable opportunity to participate in tbe proceedings, and, if they are dissatisfied, to take such exception as tbe law allows. Tbe due observance of this rule has led to a disapproval by tbe courts of any act by tbe judge, counsel, party, or stranger whereby communication is bad with tbe jury after tbe case is submitted to them and they have retired for deliberation on tbeir verdict, except it be in open court and with a due regard to tbe rights and privileges of tbe parties. Whenever such communications were bad, though they were not prompted by improper motives, and though they may not have influenced tbe jury in arriving at tbeir verdict, still they are generally treated as in themselves sufficient ground for setting aside tbe verdict rendei’ed, for tbe reason that no party should be subjected to tbe burden of an inquiry before tbe court, regardless of whether or not its conduct in this re*447spect, or that of its officers or that of tbe opposing party, has tended to bis injury. Tbe case of *Sargent v.*Roberts, 1 Pick. 337, where a similar question arose, has been, much quoted and referred to as a leading authority on this subject. The court, speaking through Paeeee, C. J., says:

> “As it is impossible, we think, to complain of the substance of the communication, the only question is whether any communication at all is proper; and, if it was not, the party against whom the verdict was, is entitled to a new trial.” “No communication whatever ought to take place between the judge and the jury, after the cause has been submitted to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel of the cause.” “It is not sufficient to say that this power is in hands highly responsible for the proper exercise of it. The only sure way to prevent all je.alousies and suspicions is to consider the judge as having no control over the case, except in open court, in the presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the inconvenience of jurors is of small consideration compared with this great object.”

These rights are clearly of an important nature and affect the substance of a jury trial and the right of a party to be heard and to bring in review every transaction of the court’s proceeding. Eor the attainment of the best administration of justice, the law requiring that all proceedings of courts be open and public and in the presence of the parties or their representatives must be strictly enforced; and, in case of any infringement of-this policy, parties are not to be put to the burden of showing that it in fact injured them, even though it be manifest that no improper motives prompted the acts •complained of. We are constrained to hold that the communications had between the jury and the judge in the case after 'the jury had retired to deliberate upon the verdict were prejudicial and constitute reversible error. *Watertown B. & L. Co. v. Mix,*51 N. Y. 558; *Read v. Cambridge,*124 Mass. *448567; *Crabtree v. Hagenbaugh,*23 Ill. 349; *Chicago & A. R. Co. v. Robbins,*159 Ill. 598, 43 N. E. 332; *State v. Patterson,*45 Vt. 308; *McBean v. State,*83 Wis. 206, 53 N. W. 497; *Smith v. State,*51 Wis. 615, 8 N. W. 410; *Barnard v. State,*88 Wis. 656, 60 N. W. 1058.

Error is assigned upon, tbe rulings of tbe court refusing to-compel tbe district attorney to produce tbe record of tbe clerk of tbe grand jury, containing minutes of tbe testimony of tbe plaintiff in error given before tbe grand jury, and in excluding tbe testimony of grand jurors to prove wbat be testified to before tbem pertaining to tbe transaction for wbicb be-is on trial. Plaintiff in error claims tbe benefit and immunity from prosecution and punishment of sec. 4078, Stats. 1898, as amended by cb. 85, Laws of 1901, upon tbe ground that be is now being prosecuted for and on account of a transaction concerning wbicb be theretofore gave testimony before a grand jury of-Milwaukee county. Upon tbe trial be offered evidence tending to show that tbe clerk of tbe grand jury kept minutes of its proceedings, including minutes of bis testimony given before tbem, and that such minutes were then in-tbe custody of tbe district attorney for Milwaukee county; and be demanded that they be produced for tbe purpose of using tbem to show that be gave testimony before tbe grand' jury concerning tbe transaction for wbicb be is now being prosecuted. Tbe court ruled that upon tbe trial of plaintiff in error tbe proceedings before a grand jury are privileged from being adduced as evidence to show bis immunity under-these statutes. This presents, tbe same question recently passed upon by this court in tbe case of *Murphy v. State,*124 Wis. 635, 102 N. W. 1087, where it was held that, if otherwise unobjectionable, such evidence is admissible as evidence to establish tbe defendant’s immunity from prosecution. This case must be held to be ruled by that case on this question. Tbe record shows that tbe decision on appeal in that case was rendered subsequent to tbe trial of this case, wbicb explains-*449why tbe rale there established was not applied to this case. Ia addition to the question then presented before this court upon this subject, it is now contended that the minutes of the clerk of the grand jury of their proceedings are a public record, and that every person is entitled to inspect them as such, and to offer them as evidence upon the trial of causes. By ch. 90, Laws of 1903, additional provision is made for keeping a record of grand jury proceedings by providing that, if the trial judge deems it necessary, he may order that the grand jury employ a stenographic reporter to take down a complete report of their proceedings, transcribe them into longhand, and deposit them with the district attorney of the county or with the attorney general, or both, as the grand jury may direct. The act also provides that such reporter, before assuming such duties, shall take and file an oath obligating himself to a faithful performance of these duties, “and to keep inviolate the secrecy required by law to be kept relative to such proceedings.” This language in the statute' strongly indicates that the legislature intended that nothing: in this act should be construed to remove any of the obligations of secrecy concerning grand jury proceedings. The claim now presented, that the obligation of secrecy does not extend to such records, is in no way affected by this legislative action, and such obligation must be held to exist as it did before this legislation. The rule of secrecy as to such proceedings, its purposes, and the statutes declaratory thereof were considered and applied to the *Murphy*Gase, and the conclusions .there reached must be adhered to. We find no ground for the claim that the record, of such proceedings is to be treated as a public record, open to the inspection of all persons. To so hold would not only conflict with every purpose for keeping secret such proceedings, but would result in a total abrogation of the rule. Such is clearly not the law, and such secrecy must be maintained and kept inviolate within the bounds prescribed by the statutes and the decisions.

*450It is urged that the plaintiff in error was entitled to inspection of such, records in so far as they relate to the testimony given by plaintiff in err of before the grand jury concerning the transaction involved upon this trial, and that such inspection should be awarded both before the trial and at the trial, for the purpose of preparing for trial and for laying the foundation for the impeachment of immune witnesses, whose testimony may be different on the trial from that given before the grand jury. No rules, either at the common law or by the statutes governing criminal procedure, award such a right. It was held in *Cornell v.*State, 104 Wis. 527, 80 N. W. 745, that a defendant in a criminal prosecution was not entitled to be informed of the names of the witnesses for the prosecution before trial, to enable him to prepare his case on the defense. We can see no distinction in the claim now made from the one made in that case. Thé reason for the request in both cases is that such information is necessary to ^enable the defendant to prepare for trial áñd to apprise him what evidence will be material to his defense. We do not see how the defendant can be prejudiced by withholding such information until the evidence is offered upon the trial, nor is it suggested in what respect this practice prevents him rfrom procuring and adducing all the evidence at hand to es-táblish the facts of his defense. The charge preferred in the indictment, information,'or complaint fully informs him as to what facts the prosecution expects to establish by the evidence upon the trial, and this meets all the necessary requirements of the right which the accused has in criminal cases to be informed of the nature and cause of the accusation against him.

It is urged that proof of the defendant’s testimony given before the grand jury may be made by offering the records of the grand jury’s proceedings as kept by the stenographic reporter, upon the ground that they are statements made by officials in pursuance of official duty. Such reports and min*451utes of proceedings are not classed as official statements wbicb in themselves constitute proof of the facts thus reported, but are treated as memoranda made by the official in the course of bis official duties, and can only be used in evidence when the official can testify that at or about the time the- records were made be knew tbeir contents and tbe accuracy thereof. This is upon the theory that such records are not to be treated as independent evidentiary instruments, but are to be treated as memoranda to be used by these officials when they are called as witnesses to the facts therein reported. Eor this purpose the memoranda may be used in two ways — either to aid the witness in his present recollection or in his past recollection of their contents. *Zitske v. Goldberg,*38 Wis. 216; *Jackson v. State,*81 Wis. 127, 51 N. W. 89; *Eggett v. Allen,*119 Wis. 625, 96 N. W. 803; 1 Greenl. Evidence (16th ed.) § 166; *Hair v. State,*16 Neb. 601, 21 N. W. 464. The distinction of these uses is clearly stated in 1 Greenleaf, Evidence (16th ed.) § 439a:

> .“It is to-day generally understood that' there are two sorts of recollection which are properly available for a witness — • past recollection and present recollection. In the latter and usual sort the witness either has a sufficiently clear recollection, or can summon it and make it distinct and actual if he can stimulate and refresh it, and the chief question is as to the propriety of certain means of stimulating it — in particular, of using written or printed notes, memoranda, or other things as refreshing it. In the former sort [past recollection] the witness is totally lacking in present recollection and cannot revive it by stimulation; but there was a time when he' did have a sufficient recollection and when it was recorded, so that he can adopt this record of his then existing recollection and use it as sufficiently representing the tenor of his knowledge on the subject.”

This is the basis of the rule upheld in *Nehrling v. Herold Co.*112 Wis. 558, 88 N. W. 614, namely:

> “The statement of the witness and the contents of the paper together are equivalent to the present positive statement of *452tbe witness affirming tbe truth of tbe facts stated in tbe memorandum.” *Manning v. School Dist.*124 Wis. 84, 102 N. W. 356; *Hazer v. Streich,*92 Wis. 505, 66 N. W. 720; *Philadelphia & R. R. Co. v. Spearen,*47 Pa. St. 300; *People*v. *Murphy,*45 Cal. 137.

Access to tbe records of these minutes and stenographic reports of grand jury proceedings by counsel of tbe accused are controlled by tbe rule of secrecy pertaining to grand jury proceedings, and tbe usual practice of permitting inspection of records or memoranda, by limiting it to such portions as are actually used in tbe evidence, and in such manner and at such times during tbe progress of tbe trial as tbe trial court may direct.

*By the Gourt.*— Tbe judgment is reversed and tbe cause is remanded for a new trial.