INFORMATION

22. Information by the district attorney is a method of criminal procedure less formal than the indict

ment, and an information lies in any cases not capital or infamous.

SAME-FORM OF INFORMATION

23. Information must conform substantially to the rules stated above in relation to indictments.

The requisites of an indictment apply to informations. An information lies in any cases not capital or infamous, as above defined. Section 1022, Rev. St. U. S.,37 which provides that all crimes and offenses committed against the provisions of chapter 7, tit. "Crimes" (this chapter defining offenses against the elective franchise), which are not infamous, may be prosecuted by indictment or by information filed by a district attorney, must be construed in conjunction with the fifth amendment of the Constitution, and was not intended to mean that only those special offenses could be proceeded against by information.38 An information must be by leave of court, and the judge may give the accused an opportunity to show cause against its filing. A complaint, to justify an information, must show personal knowledge and probable cause.40

39

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

38 In re WILSON, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89. See "Indictment and Information," Dec. Dig. (Key-No.) §§ 2, 3; Cent. Dig. §§ 4-23.

39 U. S. v. Smith (C. C.) 40 Fed. 755. See "Indictment and Information," Dec. Dig. (Key-No.) § 40; Cent. Dig. § 151.

40 Johnston v. U. S., 87 Fed. 187, 30 C C. A. 612; U. S. v. Tureaud (C. C.) 20 Fed. 621. See "Indictment and Information," Dec.

HUGHES FED.PR.(2D ED.)-4

THE DEFENSE

24. The method of defense is substantially the same as in the state courts, i. e. by motions to quash, demur

rers, or pleas, dilatory or peremptory, according to the character of the defense.

Prisoner Entitled to Copy of Indictment and Lists of Jurors and Witnesses Before Trial

Section 1033 of the Revised Statutes 1 provides that, when any person is indicted of treason, a copy of the indictment and a list of the jury, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each juror and witness, shall be delivered to him at least three entire days before he is tried for the same. When any person is indicted of any other capital offense, such copy of the indictment and list of the jurors and witnesses shall be delivered to him at least two entire days before the trial. This requirement, as is obvious from its language, applies only to capital offenses. The prisoner must ask for it before pleading or the commencement of the trial, or he will be held to have waived it.42 If a witness is offered whose name is not on the list furnished, the defendant must object at once, and not wait until the witness has been examined in chief, as such action also will be a waiver.48

Dig. (Key-No.) § 41; Cent. Dig. §§ 152-169; "Criminal Law," Cent. Dig. $8 415-434, 460-477.

41 U. S. Comp. St. 1901, p. 722.

42 U. S. v. Cornell, Fed. Cas. No. 14,868; U. S. v. Curtis, Fed. Cas. No. 14,905. See "Criminal Law," Dec. Dig. (Key-No.) § 628; Cent. Dig. §§ 1409-1419.

43 Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170. See, in general, Van Duzee v. U. S. (D. C.) 41 Fed. 571; U. S. v. Van Duzee, 140 U. S. 169, 11 Sup. Ct. 758, 35 L. Ed. 399; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429. See "Criminal Law," Dec. Dig. (Key-No.) § 628; Cent. Dig. §§ 1409–1419.

General Defenses

The method of defense in criminal cases in the federal courts is practically the same that prevails in the courts of the different states, and the general rules of criminal procedure are applicable. Dilatory defenses must be made first and promptly. Defenses of this sort are usually made either by motion to quash or by plea in abatement. A motion to quash may be made although dependent on facts not appearing on the face of the record, and evidence may be adduced on the hearing of the motion. In fact, the mere affidavit to a written motion to quash, setting out facts not admitted, and accompanied by no evidence, is not sufficient proof to sustain it. For instance, a motion to quash an indictment on the ground that negroes were improperly excluded from the jury was held to have been properly denied when the only proof of the fact alleged was the affidavit to the written motion.* 44 A motion to quash is addressed to the discretion of the court, and therefore the action of the court upon it is not usually a ground of error. An exception to the make-up of a grand jury may be made by a plea in abatement or by motion to quash, and, if it depends upon facts not shown by the record, evidence is admissible in support of it, but it must be made before pleading in bar.46 A plea in abatement is also the proper way to raise questions of this character dependent on outside facts, but any objection to the composition of a grand jury must be offered at the earliest oppor

45

44 Smith v. Mississippi, 162 U. S. 592, 16 Sup. Ct. 900, 40 L. Ed. 1082. See "Indictment and Information," Dec. Dig. (Key-No.) § 140; Cent. Dig. § 475.

45 Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; Durland v. U. S., 161 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709. See "Criminal Law," Dec. Dig. (Key-No.) § 1149; Cent. Dig. §§ 3039– 3043, 3058.

46 Carter v. Texas, 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839; Burchett v. U. S., 194 Fed. 821, 114 C. C. A. 525. See "Criminal Law," Dec. Dig. (Key-No.) § 279; Cent. Dig. §§ 643, 644; "Indictment and Information," Dec. Dig. (Key-No.) § 139; Cent. Dig. § 473.

tunity; and the plea in abatement is too late, if the prisoner had any earlier opportunity in court to question the manner in which the grand jury was formed.*

A plea in abatement is waived by pleading in bar.48 Defenses of law going to the substance are raised by demurrer, but under section 1025, heretofore discussed, special demurrers to mere matters of form are practically superseded. If a demurrer is overruled, the proper judgment is respondeat ouster.50

In Hillegass v. U. S.51 it was held that when a demurrer is overruled and the accused is allowed to plead over, and does so, he cannot assign the ruling of the court on his demurrer as error, as pleading over is a waiver. The court must have had in mind demurrers in matters of form.

Under the act of March 2, 1907,52 jurisdiction is conferred on the Supreme Court to review at the instance of the government certain rulings on demurrers involving the construction of statutes in criminal cases. This act is not mentioned in the repealing sections of either the Judicial or Penal Codes; so it is still in force.53

After dilatory defenses are disposed of, and the prisoner is arraigned, section 1032, Rev. St. U. S.,5 provides that when any person indicted for any offense against the United States, whether capital or otherwise, upon his arraignment stands mute, or refuses to plead or answer

47 Agnew v. U. S., 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624. See "Criminal Law," Dec. Dig. (Key-No.) § 279; Cent. Dig. §§ 643, 644.

48 U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. 1, 27 L. Ed. 857. See "Criminal Law," Dec. Dig. (Key-No.) § 279; Cent. Dig. §§ 643, 644. 49 U. S. v. Kilpatrick (D. C.) 16 Fed. 765. See "Indictment and Information," Dec. Dig. (Key-No.) § 147; Cent. Dig. §§ 490–494.

50 Section 1026, Rev. St. U. S. (U. S. Comp. St. 1901, p. 720). 51 183 Fed. 199, 105 C. C. A. 631. See "Indictment and Informa tion," Dec. Dig. (Key-No.) § 197; Cent. Dig. § 636.

52 34 Stat. 1246, c. 2564.

53 U. S. v. Winslow, 227 U. S. 202, 33 Sup. Ct. 253, 57 L. Ed. See "Courts," Dec. Dig. (Key-No.) § 385.

54 U. S. Comp. St. 1901, p. 722.

thereto, it shall be the duty of the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto, and when the party pleads not guilty, or such plea is entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by a jury. This section applies to informations as well as indictments."

55

The record in a criminal case must show both an arraignment and a plea; otherwise there is no issue for the jury to try, and a verdict and judgment following would be fatally defective.56 Nearly all defenses going to the merits may be made under a plea of not guilty, but there is one which, in its very nature, should be pleaded specially. Under amendment 5 of the Constitution, it is provided that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb. A defense of once in jeopardy, therefore, could hardly be proved under a plea of not guilty, for the prisoner might be actually guilty, and yet entitled to set up this defense. In some cases, in fact, such a plea might be interposed in conjunction with a plea of not guilty without its being inconsistent. For instance, in Thompson v. U. S.,57 the judge discovered during the trial of the case that one of the members of the jury had been on the grand jury which found the indictment. He, thereupon, against the prisoner's objection, discharged the jury and continued the case over for a new trial. On the second trial the prisoner pleaded that the proceedings on the first trial entitled him to raise

55 U. S. v. Borger (C. C.) 7 Fed. 193; In re Smith (C. C.) 13 Fed. 25. See "Criminal Law," Dec. Dig. (Key-No.) § 266; Cent. Dig. §§ 619, 620.

56 Shelp v. U. S., 81 Fed. 694, 26 C. C. A. 570; Crain v. U. S., 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; Johnson v. U. S., 225 U. S. 405, 32 Sup. Ct. 748, 56 L. Ed. 1142; Beck v. U. S., 145 Fed. 625, 76 C. C. A. 417. See "Criminal Law," Dec. Dig. (Key-No.) §§ 261, 1086; Cent. Dig. §§ 612, 613, 2753, 2754.

57 155 U. S. 271, 15 Sup. Ct. 73, 39 L. Ed. 146. See "Criminal Law," Dec. Dig. (Key-No.) §§ 270, 291; Cent. Dig. §§ 624-628, 667.