THE WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY, INCORPORATED, Appellant, v. GEORGE DOYLE, ED. MILLARD, and E. C. HAIR, Respondents
William J. Burns International Detective Agency, Inc. v. Doyle
Ducker, J.: I concur.
THE WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY, INCORPORATED, Appellant, v. GEORGE DOYLE, ED. MILLARD, and E. C. HAIR, Respondents.
[No. 2523]
THE WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY, INCORPORATED, Appellant, v. GEORGE DOYLE, ED. MILLARD, and E. C. HAIR, Respondents.
[208 Pac. 427]
1. Grand Jury — Statute Authorizing Challenge to Jurors Was Intended to Secure Unbiased Investigation.
Rev. Laws, 7005, permitting a challenge to an individual grand juror for personal bias, and section 7009, providing that, if such challenge is allowed, the grand juror cannot be present during or take part In the consideration of a charge against the individual, were intended to insure persons under investigation the consideration of their case so far as possible by those who are in no way biased, and definitely establishes that as the public policy of the state.
2. Grand Jury — Objection Must Be Made at Time of Impaneling if Facts Are Known.
Objections to qualifications of a grand juror under Rev. Laws, 7005, must be interposed at the time the grand juror is impaneled, though one indicted by a grand jury, who has not had a previous opportunity to do so, or did not learn of the fact till it is too late, may move to set aside the indictment upon a ground for which a challenge might have been interposed.
3. Contracts — Tendency to Situation Contrary to Public Policy Invalidates.
A contract which tends to produce a situation contrary to public policy is void whether or not in a particular case it has produced that result.
4. Grand .7ury — Employment by Members op Detectives to Investigate Particular Crimes Is Contrary to Public Policy.
A contract whereby members of the grand jury employed a detective agency to produce evidence regarding particular crimes which wore to be investigated by the grand jury is contrary to public policy, since the grand jury employing the detectives are thereby biased or prejudiced in favor of the evidence procured by their employees.
Appeal from Ninth Judicial District Court, White Pine County; E. J. L. Taber, Judge.
Action by The William J. Burns International Detective Agency, Incorporated, against George Doyle and others. Judgment for defendants when plaintiff declined to amend after demurrer to the complaint was sustained, and plaintiff appeals.
Affirmed.
G. F. Foreman, for Appellant:
Admitting the expenditure of money or the incurrence of the obligation, there may or may not exist in the mind of the juror a state of bias in reference to the case under consideration by him; or it may exist in the mind of one and not in that of another; or it might be of such slight a nature as should properly be disregarded. A person shall not be disqualified as a grand juror by reason of such opinion, if it satisfactorily appear to the court, upon his declaration under oath, or otherwise, that he will, notwithstanding such opinion, act impartially and fairly. Rev. Laws, 7005. Grand jurors are under solemn pbligation, imposed by their oath, diligently to inquire into all infractions of the criminal law which may be given to them in the charge or may come to the knowledge of any of the members, or of which they can obtain legal evidence. Rev. Laws, 7012, 7020, 7027, 7028.
The contract as pleaded is complete and independent, and if its validity be upheld it discloses under the allegations a clear and indisputable liability upon the part of the respondents. They should not be permitted to hide behind the legal curtain of “public policy” in order to escape liability for their just obligation. The contract should not be lightly set aside, unless for fraud or upon considerations of public policy of the gravest nature. “Public policy is a very unruly horse, and when you once get astride it you never know where it will carry you.” Richardson v. Mellish, 2 Bingham, 229. “If there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that contracts when entered into freely and voluntarily shall be held good and shall be enforced by courts of justice.” Printing Co. v. Sampson, 19 Eq. Cas. L. R. 462; Diamond Match Co. v. Roeber, 106 N. Y. 473.
It is not contrary to public policy for grand juries or prosecuting officers to avail themselves of the services of detectives who are not officers of the law, or of the evidence thereby secured, in the detection and prosecution of offenders. At the present day hardly a criminal case of note is brought to trial without the assistance of such operatives, and many states, by statutory enactment, permit their employment, even by the district attorney who files the information. Thiel Detective Co. v. Tuolumne County, 173 Pac. 1120.
Chandler & Quayle, for Respondents:
The alleged agreement is contrary to public policy, and is therefore void. It is a part of the public policy of this state, as expressed in its statutes, that a grand juror shall be impartial. Rev. Laws, 7005; Parus v. District Court, 42 Nev. 229; State v. Williams, 35 Nev. 276. The statute requires the same state of mind on the part of a grand juror as of a trial juror. Rev. Laws, 7009, 7150. A grand juror is required to make oath that he “will present no persons through malice, hatred, or ill will.” Rev. Laws, 7012, 7013. The right of an accused person to challenge an individual grand juror is a substantial right. State v. Bachman, 41 Nev. 197.
“It is the duty of the judiciary to refuse to sustain that which is against the public policy of the state, when such public policy is manifested by the legislation or fundamental law of the state.” 6 R. C. L. 709; People v. Chicago Co., 130 111. 268.
A grand jury .has no authority to employ detectives, even when the regularly constituted peace officers fail to cooperate with the grand jury. Aside from the question of public policy, the grand jury itself has no power to make such a contract or to bind the county thereon. Woody v. Peairs, 170 Pac. 660. The complaint does not allege any express contract with the grand jury, and such contract cannot be implied. Burns v. Holt, 164 N. W. 590. The complaint fails to allege an obligation binding on the county, or with an authorized county official, and shows no approval of the claim by the board of county commissioners. Rev. Laws, 1508-1510, 1523-1525.
By the Court,
Coleman, J.:
This action was instituted to recover an amount alleged to be due and owing the plaintiff from the defendants under a contract claimed to have been entered into for the performance of certain services in the procuring of evidence for submission to the grand jury of White Pine County, of which the defendants were members. The complaint alleges, among other things:
"That the grand jury was desirous of procuring the aid and services of plaintiff for the purpose of assisting said grand jury in 'obtaining evidence of certain alleged criminal offenses and requested plaintiff to furnish its aid to said grand jury for the purpose of making investigation of certain alleged criminal matters and offenses alleged to have occurred within said county, and of aiding said grand jury in obtaining proofs or evidence in respect thereof."
To the complaint a general demurrer was filed, and, after consideration thereof, the trial court sustained the same. Plaintiff declined to amend, judgment was rendered in favor of the defendants, and plaintiff has appealed.
Two points are presented in support of the contention that the complaint does not state a cause of action: First, that the contract pleaded in the complaint is. against public policy, and hence void. We need not consider the other contention.
Is the contract pleaded against public policy? Section 7005 of the Revised Laws of 1912 provides that a challenge may be interposed to an individual grand juror where a state of mind exists on his part in reference to the case which will prevent his acting impartially and without prejudice to the substantial rights of a party. By section 7009 it is provided that, if a challenge to an individual grand juror is allowed he cannot be present during, or take part in, the consideration of a charge against an individual. The rights thus secured to one under investigation are substantial in their nature. State v. Bachman, 41 Nev. 197, 168 Pac. 733. If we can accurately divine the purpose of these provisions of our statute, it is to assure persons under investigation the consideration of their case, as far as possible, by those who are in no way biased. Such is the public policy of the state, as definitely established by statute.
Counsel for appellant has presented the case very strongly, but we think the sounder view is opposed to his contention. It is urged that bias is a state of mind to be shown and made to appear as any other fact. In this connection it is also urged that, even where a juror is biased, if it appears to the court that notwithstanding such bias the juror can act impartially and fairly, the court will not disqualify him. Rev. Laws, 7005. Basing the contention upon the foregoing assertions, it is insisted that, if an indictment should be returned, based upon evidence unearthed by a detective who pursued his investigation pursuant to such a contract as the one pleaded, it must be set aside, if the position of respondents is sound, because of the mean's employed in ferreting out the facts. We think counsel's premise is an erroneous one. It was long ago settled that our statute fixes the disqualifications of a grand juror (State v. Millain, 3 Nev. 409, 424); it has also been decided that objections to the qualifications of a grand juror can be made only at the time and in the manner contemplated by statute (McComb v. District Court, 36 Nev. 417, 136 Pac. 563); and our statute clearly contemplates that a person held to answer to the grand jury must interpose his challenge to a grand juror at the time it is impaneled.
It is true that one indicted by a grand jury, who has not had previous opportunity to do so, may move to set aside the indictment upon the ground for which a challenge might have been interposed. Conceding the correctness of the contention that bias is a state of mind to be shown, and that the court must determine if such bias exists as to disqualify a grand juror, we are still of the opinion that the contention of counsel cannot be sustained. One who is indicted by a grand j ury composed of persons who have financed the building up of a case against him, and who are biased, might not learn of the facts until it is too late to raise the question of bias in any manner or at any time.
We think, since it is the public policy of this state, as declared by statute, that one whose conduct is being investigated by a grand jury is entitled to have the investigation made by unbiased grand jurors, the sole question for us to determine is the force and effect of the contract pleaded. In this connection we may well direct attention to the thought expressed. in King v. Randall, 44 Nev. 118, 190 Pac. 979, 13 L. R. A. 730, to the effect that a contract which tends to produce a situation contrary to public policy, whether or not in a particular case it produces that result, is void.
Would such a contract as that pleaded tend to defeat the general purpose of our statute to afford every person whose conduct is being inquired into an inquisitorial body free from bias and prejudice? As will appear by reference to the quotation from the complaint, it is charged that the plaintiff was employed to investigate "certain alleged criminal offenses. " The allegation negatives the idea that plaintiff was employed to investigate the commission of crimes generally, but that its activities were limited to particular offenses. The inference deducible from this language is that it was especially desirable to fix the liability for certain offenses. That purpose was so earnestly desired that the defendants were willing to obligate themselves for a large outlay. Is it possible for frail human nature to lend its support to the ferreting out a crime without being influenced in reaching a conclusion as to the guilt or innocence of the party? We think not. Would any one be so audacious as to say that a detective who has been active in investigating an alleged crime could be an impartial grand or petit juror? The inquiry suggests the answer. One who furnishes the money to induce the activity of a detective in such an inquiry is but slightly, if any, less liable to be prejudiced. In fact, the detective is working for the reward, and is paid for his services, regardless of results, whereas the one who puts up the money to induce the activity of the detective is in a position to use his influence to get the results he hopes for. His only reward is in finding a victim. Is he likely to be impartial toward the one who is the fruit of his own activity ? A knowledge of human nature answers, "No." The experiences of the ages answer, "N'o." The words of St. Luke, "Where your treasure is, there will your heart be also," state a truism. An agreement on the part of grand jurors to finance an investigation of a particular offense inexorably prejudices them as impartial and unbiased members of the grand jury. Such a contract no't only tends to create prejudice, but, unless the persons so agreeing are superhuman, it is safe to say that it in fact has that effect.
In the case of Wm. J. Burns I. D. Agency v. Holt, 138 Minn. 165, 164 N. W. 590, the point here under consideration was urged, and, though not squarely decided, the intimation of the court is strongly in accord with the view we have taken. Said the court:
"We shall not now stop to inquire and determine whether a contract made by a grand juror or grand jury to finance an investigation of crimes through detective agencies is void as against public policy. It is enough to suggest that for grand jurors to personally finance criminal investigations is so at variance with the evident purpose of their work, under the theory of our criminal procedure and the practice of modern jurisprudence, that no contract so to do should be implied from the fact that reports were received and made use of by the grand jury, or from the fact that its foreman requested the same or any other service from outsiders. The foreman has no express or implied authority to incur expense for which the j ury or the individual members will be liable. Moreover, the finding of an indictment calls for the .judgment of fair-minded, unprejudiced men. It is against the general consensus of opinion that ordinary men can act fairly and impartially when their purse has been placed on one side of the scale."
Holding the views expressed, the judgment must be affirmed.
It is so ordered.
Ducker, J.: I concur.