CHAPTER III

THE DISTRICT COURT (Continued)-CRIMINAL JURISDICTION AND PRACTICE (Continued)

20. Indictment by a grand jury is the most formal mode of criminal procedure, and is required by law in ali cases of capital or infamous offenses.

The general rules of criminal procedure and practice in the federal courts are based upon those of the common law, though the rigor and technicality of the common law have been much modified by statute.1 The fourth, fifth, sixth, seventh, and eighth amendments to the Constitution are practically a bill of rights, and show the solicitude of our ancestors to protect the citizen in every way from unjust prosecutions. In fact, these amendments are practically parts of the original Constitution, for the only way in which some of the states were induced to adopt the Constitution in their state conventions was the assurance of its advocates that it should at once be amended by these additions.

The fifth amendment provides, among other things, that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of

1 Howard v. U. S., 75 Fed. 986, 21 C. C. A. 586, 34 L. R. A. 509. See "Courts," Dec. Dig. (Key-No.) § 337; Cent. Dig. § 908.

a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger. This renders an indictment necessary in all cases of capital or infamous offenses. The question, what constitutes an infamous offense was long unsettled, but recent decisions of the Supreme Court have laid down as the test the punishment which can be inflicted. Any offense which may be punishable by confinement in a state prison or penitentiary for a term of years, either with or without hard labor, is an infamous offense, in the sense of this provision. The test is not the punishment that is actually inflicted in the special case, but the punishment that might be inflicted on the crime charged in the indictment, whether that punishment, as a matter of fact, is inflicted in the special case or not; and the Supreme Court in these cases has repudiated the test of infamous offenses based upon the question of its effect on the prisoner in regard to his competency as a witness thereafter, and applies simply the test as to the character of the punishment. The question whether a given act is a felony or not did not affect the question whether the offense is infamous. If the punishment was as defined above, the offense was infamous, though only a misdemeanor; and, if not as defined above, it might not have been infamous, though a felony.

With these decisions in view, the committee, in drafting the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1088 [U. S. Comp. St. Supp. 1911, p. 1588]), provided by section 335 that all offenses which may be punished by death or imprisonment for a term exceeding one year shall be deemed felonies; and all other offenses, misdemeanors.

The provisions as to hard labor were omitted because the

2 Ex parte WILSON, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; Mackin v. U. S., 117 U. S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909; In re Claasen, 140 U. S. 200, 11 Sup. Ct. 735, 35 L. Ed. 409. See "Indictment and Information," Dec. Dig. (Key-No.) § 2; Cent. Dig. §§ 4-8.

United States frequently use state prisons, whose discipline is controlled by the state, which may inflict hard labor.3

But section 338 of the Penal Code provides that the omission of the words "hard labor" shall not prevent the court from imposing it. This provision makes felonies and infamous offenses practically the same.

Independent of statute, a felony means those offenses punishable by forfeiture of lands or goods with capital or other punishment superadded.*

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Under section 1021 of the Revised Statutes, no indictment shall be found, nor shall any presentment be made, without the concurrence of at least twelve grand jurors. It is not, however, necessary for the indictment to show upon its face that it was found by twelve grand jurors.

The Court to Try Indictments

Sections 1037, 1038 and 1039 of the Revised Statutes? provided for the transfer of cases from the circuit courts to the district courts of the same district for trial in certain cases, and vice versa. These sections are not specifically repealed by the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087 [U. S. Comp. St. Supp. 1911, p. 128]), but the grant of all criminal jurisdiction to the district court by section 24, paragraph 2, of that act, and the abolition of the circuit court by section 289, render the above sections obsolete. All criminal cases are now tried in the district court.

3 In re Karstendick, 93 U. S. 396, 23 L. Ed. 889. See "Indictment and Information," Dec. Dig. (Key-No.) § 2; Cent. Dig. §§ 4-8.

Bannon v. U. S., 156 U. S. 464, 15 Sup. Ct. 467, 39 L. Ed. 494. See "Indictment and Information," Dec. Dig. (Key-No.) §§ 2, 3; Cent. Dig. §§ 4-23.

U. S. Comp. St. 1901, p. 719.

* U. S. v. Laws, 2 Low. 115, Fed. Cas. No. 15,579; Caha v. U. S., 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415. See "Indictment and Information," Dec. Dig. (Key-No.) §§ 56, 57; Cent. Dig. §§ 175-179. 7 U. S. Comp. St. 1901, p. 723.

SAME-FORM OF INDICTMENT

21. An indictment in the federal courts, though defective in matter of form, is sufficient if the necessary facts of time, place, and circumstance are so stated as to enable the accused to concert his defense and protect himself from a second prosecution, and so as to enable the court to decide whether it is legally sufficient to support a conviction.

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Section 1025, Rev. St. U. S., provides that no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.

Under this federal statute of jeofails, indictments in the federal courts are simple and devoid of archaic terms or cumbrous forms. At the same time they must be so definite as to give the accused notice of the crime charged against him, enable him to concert his defense, and enable him also to plead former acquittal or conviction in the event of a second trial for the same offense. The general requisites of an indictment are well defined in U. S. v. Cruikshank as follows: "In criminal cases prosecuted under the laws of the United States, the accused has the constitutional right 'to be informed of the nature and cause of the accusation.' Amend. 6. In United States v. Mills, 7 Pet. 142 [8 L. Ed. 636], this was construed to mean that the indictment must set forth the offense 'with clearness and all necessary certainty, to apprise the accused

8 U. S. Comp. St. 1901, p. 720.

992 U. S. 542, 23 L. Ed. 588. See "Indictment and Information," Dec. Dig. (Key-No.) § 71; Cent. Dig. §§ 193, 194.

of the crime with which he stands charged'; and in United States v. Cook, 17 Wall. 174 [21 L. Ed. 538], that 'every ingredient of which the offense is composed must be accurately and clearly alleged.' It is an elementary principle of criminal pleading that where the definition of an offense, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species-it must descend to particulars. 1 Archb. Cr. Pr. & Pl. 291. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent, and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances." In statutory offenses the language of the statute may be followed, but this does not dispense with the necessity of setting out the specific elements of the offense itself with sufficient definiteness to put the prisoner on his defense, and to enable him to protect himself from a second prosecution.10 It must charge the time and place, though a blank as to the exact date is not always fatal, and naming the county instead of the town is at least not fatal on a motion in arrest of judgment.11 As to offenses on the high seas, it is

10 U. S. v. Fero (D. C.) 18 Fed. 901; U. S. v. Brazeau (C. C.) 78 Fed. 464; Peters v. U. S., 94 Fed. 127, 36 C. C. A. 105; Cochran v. U. S., 157 U. S. 286, 15 Sup. Ct. 628, 39 L. Ed. 704; Harper v. U. S., 170 Fed. 385, 95 C. C. A. 555; Hauger v. U. S., 173 Fed. 54, 97 C. C. A. 372; U. S. v. Raley (D. C.) 173 Fed. 159. See "Indictment and Information," Dec. Dig. (Key-No.) § 110; Cent. Dig. §§ 289-194.

11 Ball v. U. S., 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377; Id.,