An indictment duly found by the federal grand jury, while in
session in a room adjoining the court room with a door opening into
the court room, and which is presented in the manner prescribed by
the law of the state to the presiding judge in open court while the
jurors are still in session and able to see the actions of the
foreman, is not void because the grand jury did not in a body
accompany the foreman into the court room.
An objection that an indictment was not, under such
circumstances, duly presented and publicly delivered, should be
taken at the first opportunity, and is lost by failure to do so;
nor is it saved by permission given, when pleading not guilty, to
take advantage upon motion in arrest of judgment of all matters
that can be availed of on motion to quash or demurrer.
An order of the court saving rights to one pleading to an
indictment does not create new rights.
Section 1025, Rev.Stat., indicates a policy that technical
objections to an indictment not presented at the first opportunity
are waived and should be construed as extending to the objection
raised in this case, the same not being based on a constitutional
right.
The facts, which involve the validity of an indictment for
conspiracy under § 5440, Rev.Stat., are stated in the opinion.
Page 226 U. S. 7
MR. JUSTICE HOLMES delivered the opinion of the Court.
This case comes here on a certificate which may be summed up as
follows: the defendants were indicted in 1897 under Rev.Stat. §
5440 for a conspiracy to embezzle funds of a national bank. In the
following term, on November 6, 1897, they were ordered to plead,
and pleaded not guilty, but the order provided that the plea should
not
"prevent their taking advantage, upon motion in arrest of
judgment or on motion for a new trial of all matters and things
which could be taken advantage of by motion to quash or demurrer;
upon motion in arrest of
Page 226 U. S. 8
judgment or for a new trial, all such matters and things shall
be heard and determined as if the same were being heard upon motion
to quash or demurrer."
After the trial of another case, this one was called for trial
at the May term, 1908. The defendants then pleaded in abatement and
moved to quash on the ground of the disqualification of three grand
jurors, but the plea and motion were not maintained by the facts.
172 F. 761. The case was put down for trial again on June 21, 1909.
The defendants again pleaded in abatement and moved to quash on the
ground that the foreman of the grand jury delivered the indictment
to the judge during the session of the court, but in the absence of
the other grand jurors. The court denied the plea and overruled the
motion. A jury was sworn, the defendants were tried and found
guilty, and after a motion for a new trial had been made on the
same ground as above, and overruled, they were sentenced. 172 F.
768. The question is whether the last-mentioned plea and motions
should have been sustained.
The facts are
"that more than twelve grand jurors voted to find the indictment
a true bill. That when this action had been taken, the grand jury
was in session in a room adjoining the court room, on the same
floor, with a door opening into the court room. The foreman left
the grand jury, went into the court room with the bill of
indictment, and handed it to Judge Purnell, the presiding judge, in
person, the judge being then on the bench and the court open, and
that the judge looked over the indictment and handed it to the
clerk in open court, and that the foreman then returned to the
grand jury room and proceeded with the business of the grand jury
there assembled; that the grand jury did not accompany him when he
brought the bill of indictment into the court room and handed it to
the court."
The mode of proceeding was the same as that prescribed by the
laws of North Carolina. The clerk filed
Page 226 U. S. 9
the indictment and made the following entry:
"
United States v. W. E. Breese, W. H. Penland, and J. E.
Dickerson, Indct.: Conspiracy and embezzlement, Oct. Term.
1897. 'A true bill. J. M. Allen, foreman.' In the above-entitled
cause, it is ordered by the court, upon motion of the district
attorney, that the said cause, together with all the papers
therein, be transferred to Asheville, to be there tried at the next
term of the said court, to be held on the 1st Monday in November
next."
Six questions are certified, which are intended to present in
detail whether, in the circumstances stated, the indictment should
have been quashed.
* It is enough
to
Page 226 U. S. 10
say that we are of opinion that the indictment was not void, and
that, if there ever was anything in the objection to it, the plea
and motion came too late.
We do not think it necessary to discuss the contention that the
Fifth Amendment to the Constitution requires the indictment to be
presented by the grand jury in a body, or that their failure so to
present it goes to the jurisdiction of the court.
See Kaizo v.
Henry, 211 U. S. 146,
211 U. S. 149;
Harlan v.McGourin, 218 U. S. 442,
218 U. S. 451;
United States v. McKee, 4 Dillon 1, 9. The reasons for the
requirement, if they ever were very strong, have disappeared at
least in part, and we have no doubt that Congress, like the State
of North Carolina, could have done away with it if it had seen fit
to do so, instead of remaining silent.
See Danforth v.
Georgia, 75 Ga. 614, 620-621;
United States v.
Butler, 1 Hughes, 457, 461;
Frisbie v. United States,
157 U. S. 160,
157 U. S. 163.
But it would be going far to say that the record does not import an
indictment duly presented and "publicly delivered into court," 4
Bl.Comm. 306, or that, on the findings the indictment was not duly
presented in fact even according to the supposed rule requiring the
presence of all the grand jurors. It appears by a certified plan
that they could have seen the foreman's actions, if they desired,
from at least a part of the room where they were. It fairly is
implied that they knew what the foreman was about. We may compare
the decisions as to the witnessing of wills.
Riggs v.
Riggs,
Page 226 U. S. 11
135 Mass. 238;
Mendell v. Dunbar, 169 Mass. 74.
At all events, objections of this sort are not to be favored
when no prejudice to the defendants is shown, and, on the contrary,
the fact that the indictment was found and presented to the court
is not disputed. As the defendants had no constitutional right to
the presence of the grand jury, they were bound to take the first
opportunity in their power to object to its absence, and, by their
failure to do so, as heretofore set forth, they lost whatever
rights they may have had.
United States v. Gale,
109 U. S. 65;
Agnew v. United States, 165 U. S. 36,
165 U. S. 44;
Hyde v. United States, 225 U. S. 347,
225 U. S. 373.
The rule is implied in
Crowley v. United States,
194 U. S. 461,
194 U. S. 474,
cited by the defendants.
See also Rodriguez v. United
States, 198 U. S. 156,
198 U. S. 164.
The order made by the court, saving rights, created no new ones,
and the right to this plea was lost irrespective of the plea of not
guilty, entered in pursuance of the order of the court. In the
first plea, it was admitted that the grand jury "returned the said
bill of indictment into court as a true bill."
The same result follows from Rev.Stat. § 1025, providing that no
indictment presented by a grand jury shall be deemed insufficient
nor the trial, judgment, or other proceeding thereon be affected by
any defect in matter of form only, which shall not tend to the
prejudice of the defendant. As we already have intimated, this
indictment was presented in fact by the grand jury, and the defect,
if any, was a defect in the matter of form only. The section should
be construed to apply to the case (
see Crowley v. United
States, 194 U. S. 461,
194 U. S. 474;
Rodriguez v. United States, 198 U.
S. 156,
198 U. S. 165;
United States v. Molloy, 31 Fed.19, 23), and, even if it
did not, it indicates a policy favoring the conclusion previously
expressed that the objection had been waived. We answer the first
and sixth questions, "No."
*
"1. Is such an indictment absolutely void?"
"2. Should such indictment be quashed on motion of the
defendants, first made after the expiration of the term at which
the indictment was found, and after the final discharge of the
grand jury which found it, the defendants not having at or before
the time of moving to quash, pleaded to said indictment?"
"3. Should such indictment be quashed on motion of the
defendants, first made after the expiration of the term at which
the indictment was found, and after the final discharge of the
grand jury which found it, and after the overruling of an earlier
verified motion to quash, made by the defendants on other grounds,
in which said earlier motion to quash they had alleged that said
indictment had been duly returned into open court by the grand
jury, said second motion to quash having been made before the
defendants had otherwise pleaded to the indictment?"
"4. Should such indictment be quashed on motion of the
defendants, first made after the expiration of the term at which
the indictment was found, and after the final discharge of the
grand jury which found it, and after the defendants had pleaded not
guilty to such indictment, but before a jury was sworn upon the
issue joined upon such plea?"
"5. Would the defendants be entitled to have judgment arrested
upon a verdict of guilty, returned upon such indictment?"
"6. Would defendants, who had pleaded not guilty to such an
indictment under an order of court, by the terms of which such plea
of not guilty should not operate or have the effect to prevent
their taking advantage, upon motion in arrest of judgment or on
motion for a new trial, of all matters and things which could be
taken advantage of by motion to quash or demurrer, be entitled to
have such indictment quashed on motion made by them after the
expiration of the term at which the indictment had been found, and
after the final discharge of the grand jury which found it, and
after the denial by the court of a previous motion to quash, made
by the defendants on other grounds, in which first motion to quash
they had alleged that said indictment had been duly returned into
open court by the grand jury? "