Ex parte Sontag

McKinstry, J. The petitioner was committed to prison by the Superior Court, as being guilty of contempt in refusing to answer the question (upon motion to set aside an indictment) whether he as grand juror voted for finding the indictment.

The form of the oath, in general use for centuries, binds the grand juror to preserve inviolate the secrets of the grand jury room. Public policy would seem to forbid vain disclosures made to gratify idle curiosity. “ But,” say Thompson and Merriam, “ when, for the purposes of public justice, or for the protection of private rights, it becomes necessary, in a court of justice, to disclose the proceedings of the grand jury, the better authorities now hold that this may be done. It is obvious that there are certain transactions of the grand jury room which it can never be for the interests of justice to disclose; for example, what particular jurors concurred in or opposed the finding of • the indictment; what opinions were expressed by various members of the body. In respect to such matters the injunction of secrecy may well be perpetual.” (Thom. & Mer. on Juries, § 703.)

The furthest any of the cases cited by the text writers, from whom we have quoted, have gone towards permitting an inquiry by means of the testimony of grand jurors themselves into the mode of finding an indictment, is to allow the question, did twelve grand jurors concur in finding the indictment? Thus in Low’s Case, 4 Me. 439, that question was permitted, but both the,judges who delivered opinions in that case were careful to exclude any inference that it would be proper to inquire how a particular juror voted. Weston, J., said : “The oath of the grand juror requires him to keep secret the State’s counsel, his fellows’ and his own. Of this character may be, what particular jurors agreed or dissented upon the question whether a true bill or not.....But the fact whether twelve or more concurred or not in the bill is not a secret. It is a result which they are required, through their organ, the foreman, to make known.” And Preble, J., added: “Sow any juror voted is a secret no juror is permitted to disclose; but whether twelve of their number concurred in finding a bill is not a secret of the State, their fellows, or their own. It is a fact they of necessity profess to disclose every time they pro[527]mulgaté their decision upon any bill laid before them.” The Supreme Court of Maine in effect held that the fact whether twelve concurred in finding an indictment could be inquired into by the testimony of the grand jurors, on motion, but that in pursuing such inquiry the grand juror could not be required to state whether he voted for or against the indictment.