Roche

(dissenting).

I believe mandate should be denied. The trial judge ruled on the sufficiency of the pleas in abatement. Not only did he rule; I think he ruled correctly.

The grand jury minutes, as set out in the pleas, affirmatively state that the investigation of the canned and evaporated milk industry was begun February 27, 1941, that is to say, during the term in which the jury were impaneled. The general allegation to the contrary, contained in the pleas, is substantially negatived by all evidentiary matters pleaded in support thereof, namely the minutes and the statements of the United States attorney who was in charge of the investigation. Pleas of this kind are strictly construed; and there were compelling reasons for scanning fhe pleas narrowly in this instance. Without at all questioning the motive of the petitioners, it is to be noted that their pleas in abatement contemplate nothing more nor less than a fishing expedition into the proceedings had before the grand jury relative to their case. Thus the accused, in advance of trial, may on purely speculative grounds obtain access to wholly privileged material. The trial judge committed no error in striking the pleas for…

The petitioners, having been indicted by a grand jury for a violation of the Sherman Anti-Trust Law, 15 U.S.C.A. § 1 et seq., pleaded in abatement that the grand jury returning the indictment was drawn in the term previous to that in which they returned the indictment, and that the hearing before the grand jury upon which the indictment was based was not begun until after the expiration of the term in which the jury was impaneled.

The trial court struck out the pleas in abatement -and was about to proceed with the trial of the case under plea of not guilty, when the petitioners applied to this court for a writ of mandamus to compel the trial court to hear the issues raised by their pleas in abatement. This court promptly granted a writ. The respondent filed a petition for rehearing, which was granted and ordered heard before the seven Circuit Judges of this circuit sitting en banc.

The law provides that this court can issue a writ of mandamus to the District Court only when such writ is in aid of its appellate jurisdiction. 28 U.S.C.A. § 377 . The respondent insists that inasmuch as the statute expressly provides that there is no right of appeal from a decision of the trial…

(dissenting).

This is a proceeding in mandamus in which the petitioners seek to have vacated an order of the district court, granting, because of failure to allege a defense, a motion to strike petitioners’ pleas in abatement which sought to quash the indictment. The order was rendered after a hearing with argument and deliberation. There was no motion below to amend the pleas and the abatement proceeding was completely terminated.

I. There was no error in striking the pleas in abatement.

This dissent is, in part, to the holding of the majority opinion that the pleas “allege in terms that the investigation by the grand jury of the offenses charged against petitioners was not begun during the term in which they were impaneled.” These “terms” constitute the essence of the matter submitted for Judge Roche’s decision. In a case of such importance that it required our first plenary session, both the litigants and the judge reversed seem entitled to a statement of the allegations ruled upon by that judge, and a reasoned consideration of the character of the error he has committed.

The plea in abatement is. an affirmative defense in a proceeding separate from the trial on the…