Irwin v. Murphy

This is an appeal from a judgment made upon an order sustaining, without leave to amend, a demurrer to plaintiff’s amended complaint in an action to recover damages for libel and slander.

We summarize the complaint. It is alleged that in the year 1929 defendant, together with eighteen other persons, constituted the grand jury in and for the city and county of San Francisco, regularly drawn, impaneled and sworn; that on or about September 26, 1930, the said persons, acting under order of official authority as a grand jury, did make and publish openly and publicly, and cause to be circulated, a certain written report. This written report set forth that the grand jury had made an investigation into the details connected with a certain boxing contest theretofore held in the city and county of San Francisco and that the evidence presented to the grand jury did not permit the return of indictments against any of the principals involved. The report then continued and stated that' the evidence presented did justify certain conclusions. These conclusions referred to the manner in which boxing matches were conducted, and the conduct and character of those connected with the promotion and management of such contests. Among other things it is said in the report that professional boxing has become a “racket” not cleanly conducted; that gambling cliques and other evil influences dominate the boxing clubs; also that certain referees are selected as a money-getting scheme; that the boxing commissioner for the bay district is unfit; that the referee in

A second count in said complaint is based upon an alleged slander. The basis thereof is an alleged oral statement made by defendant in referring to said report, wherein he 'stated the plaintiff had been lucky to get off so easily and had been rather lightly dealt with by the grand jury in view of the conflicting testimony presented.

The main question presented upon this appeal is that of privilege. The character of the alleged publication, whether libelous or not, is not argued, and for all purposes here might be conceded. However, if it were essential to a decision, we would not readily make such a concession. The nicer points of pleading are likewise not discussed. Here again a concession might be made on the point that privilege is a defense, and lack of privilege need not be specifically pleaded. Yet, on this point, it needs no citation of authority that where a complaint in libel shows on its face

Preliminary to any discussion of the powers, rights and duties of a grand jury or its members, it may be well to ascertain just what manner of organization a grand jury may be. Section 192 of the Code of Civil Procedure defines a grand jury as follows: “A grand jury is a body of persons, nineteen in number, returned in pursuance of law, from the citizens of a county, or a city and county, before a court. of competent jurisdiction, and sworn to inquire of public offense committed or triable within the county or city and county.” Section 8 of article I of the Constitution provides that a grand jury shall be drawn and summoned at least once a year in each county. These provisions demonstrate that a grand jury is not a nondescript gathering of local celebrities enthused with zeal for civic betterment, but rather a body of citizens forming a part of the government, and are essential under the organic law. A grand jury is a judicial body and grand jurors are officers of the court. (Ex parte Sternes, 82 Cal. 245 [ 23 Pac. 38 ]; Turpen v. Booth, 56 Cal. 65 [ 38 Am. Rep. 48 ]; In re Gannon, 69 Cal. 541 [ 11 Pac. 240 ].) In the code definition we find the outline of at least a part of the function of a grand jury, namely, to inquire of public offense. (Code Civ. Proc., sec. 192; also, Pen. Code, sec. 915, to the same effect.)

In the Matter of Tyler, 64 Cal. 434 , 437 [ 1 Pac. 884 , 887], it was said: “A grand jury should never forget that it sits as the great inquest between the State and the citizen.” From the foregoing it is manifest that a grand jury is inherently a body of inquisition empowered to make full and diligent inquiry into public offenses triable within the county. This idea is carried out in the provisions of the Penal Code. Section 920 places the duty of investigation with the grand jury, and demands that this body not only hear and weigh incriminating evidence, but that it shall hear evidence which it may have reason to believe will explain

The appellant concedes, as he must, the foregoing. Thus conceding, he would limit any report of the grand jury to an indictment, presentment, accusation or an express report ignoring the charge. In other words, appellant argues that when the commission of a public offense is being inquired into or investigated the power of the grand jury is limited to a definite charge, whether by indictment or otherwise, against the person being investigated; that if the grand jury does not find sufficient evidence to indict, the power of the body terminates and any act thereafter is in excess of jurisdiction. We think this too narrow a construction to be placed upon the powers of a grand jury. As a matter of routine, if nothing further, the power to investigate includes as an integral part thereof the right and duty to report the result of such investigation. The duty of a grand jury is to protect the citizen against unfounded accusation. (Matter of Tyler, supra.) Such a duty, coupled with the power of investigation, almost demands completeness of disclosure on matters investigated. It seems futile tp attempt demonstration of the obvious. Law and common sense combine to compel the conclusion that, if a grand jury is authorized and bounden to inquire of public offense, a necessary element of this power must be the power and duty to disclose the result of the inquiry.

Coming then to the instant case as disclosed by 'the complaint: a human being had been killed. Murder is the highest offense known to the law and every killing may disclose facts going to constitute a crime. The man had been killed in a boxing contest, which contest was held under sanction of the statute. It is conceded that the grand jury was empowered to investigate the killing. Given a death in a boxing contest, it became of primary importance to inquire. the conditions under which the contest was held. The Penal Code declares that all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present, have advised and encouraged its commission, are

The first question as stated by appellant is as follows: Did the grand jury in making the statements against appellant act in excess of its powers and beyond its jurisdiction? Our answer is in the negative and the reasons therefor appear hereinbefore. The second question follows: Is the report of a grand jury, upon matters properly cognizable by it, privileged ? The answer must be in the affirmative. Whatever the rule may be elsewhere, and regardless of the- persuasive force of contrary contention, the rule in this jurisdiction is well settled. (Turpen v. Booth, supra; Pickett v. Wallace, 57 Cal. 555 ; Going v. Dinwiddie, 86 Cal. 633 [ 25 Pac. 129 ] ; Pen. Code, sec. 927.) Indeed, the authorities seem to go further than it is necessary for us to go here. There is abundant support in precedent and authority for the principle that the privilege of a grand jury and a grand juror is absolute, while here we simply hold that the privilege exists where the alleged libelous matter is pertinent to the matters or persons under investigation. We do not pass upon the question of absolute privilege, but we do expressly refrain from limiting the privilege. Without extended quotation, reference may be had to the following authorities: Houghton v. Humphries, 85 Wash. 50 [ 147 Pac. 641 , L. R. A. 1915E, 1051]; Sidener v. Russell, 34 Ill. App. 446 ; Hunter v. Mathis, 40 Ind. 356 . In the last-

The announced principle behind the doctrine of privilege is that such a rule is not for the protection or benefit of any individual but for the benefit of the public, to whose interest it is that judicial functions should be exercised with independence and without fear of consequences. Appellant has submitted his appeal limited to the two questions noted.

The judgment is affirmed.

Tyler, P. J., and Knight, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 20, 1933.