The declaration of Article V of the Amendments to the
Constitution, that "No person shall be held to answer for a capital
or otherwise infamous crime, unless on a presentment or indictment
of a grand jury" is jurisdictional, and no court of the United
states has authority to try a prisoner without indictment or
presentment in such cases.
The indictment here referred to is the presentation to the
proper court, under oath, by a grand jury, duly impaneled, of a
charge describing an offense against the law for which the party
charged may be punished.
When this indictment is filed with the court, no change can be
made in the body of the instrument by order of the court or by the
prosecuting attorney without a resubmission of the case to the
grand jury. And the fact that the court may deem the change
immaterial, as striking out of surplus words, makes no difference.
The instrument, as thus changed, is no longer the indictment of the
grand jury which presented it.
This was the doctrine of the English courts under the common
law. It is the uniform ruling of the American courts except where
statutes prescribe a different rule, and it is the imperative
requirement of the provision of the Constitution above recited,
which would be of little avail if an indictment once found can be
changed by the prosecuting officer, with consent of the court, to
conform to their views of the necessity of the case.
Upon an indictment so changed the court can proceed no farther.
There is nothing (in the language of the Constitution) which the
prisoner can "be held to answer." A trial on such indictment is
void. There is nothing to try.
Page 121 U. S. 2
According to principles long settled in this Court, the prisoner
who stands sentenced to the penitentiary on such trial is entitled
to his discharge by writ of habeas corpus.
This was a petition for a writ of habeas corpus. The case is
stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an application to this Court for a writ of habeas corpus
to relieve the petitioner, George M. Bain, Jr., from the custody of
Thomas W. Scott, United States Marshal for the Eastern District of
Virginia. The original petition set out with particularity
proceedings in the circuit court of the United States for that
district, in which the petitioner was convicted, under § 5209 of
the Revised Statutes, of having made a false report or statement as
cashier of the Exchange National Bank of Norfolk, Virginia. The
petition has annexed to it as an exhibit all the proceedings, so
far as they are necessary in the case, from the order for the
impaneling of a grand jury to the final judgment of the court
sentencing the prisoner to imprisonment for five years in the
Albany penitentiary. Upon this application, the court directed a
rule to be served upon the marshal to show cause why the writ
should not issue, to which that officer made the following
return:
"Comes the said Scott, as marshal aforesaid, and states that
there is no sufficient showing made by the said Bain that he is
illegally held and confined in custody of respondent; but, on the
contrary, his confinement is under the judgment and sentence of a
court having competent jurisdiction to indict and try him, and he
should not be released, and respondent prays the judgment of this
Court, that the rule entered herein against him be discharged, and
the prayer of the petition be denied."
The Attorney General of the United States and the District
Page 121 U. S. 3
Attorney for the Eastern District of Virginia appeared in
opposition to the motion, and thus the merits of the case were
fully presented upon the application for the issue of the writ.
Upon principles which may be considered to be well settled in
this Court, it can have no right to issue this writ as a means of
reviewing the judgment of the circuit court simply upon the ground
of error in its proceedings; but if it shall appear that the court
had no jurisdiction to render the judgment which it gave, and under
which the petitioner is held a prisoner, it is within the power and
it will be the duty of this Court to order his discharge. The
jurisdiction of that court is denied in this case upon two
principal grounds. The first of these relates to matters connected
with the impaneling of the grand jury and its competency to find
the indictment under which the petitioner was convicted; the second
refers to a change made in the indictment, after it was found, by
striking out some words in it and then proceeding to try the
prisoner upon the indictment as thus changed. We will proceed to
examine the latter ground first.
Section 5209 of the Revised Statutes of the United States, under
which this indictment is found, reads as follows:
"Every president, director, cashier, teller, clerk, or agent of
any association who embezzles, abstracts, or willfully misapplies
any of the moneys, funds, or credits of the association or who,
without authority from the directors, issues or puts in circulation
any of the notes of the association or who, without such authority,
issues or puts forth any certificate of deposit, draws and order or
bill of exchange, makes any acceptance, assigns any note, bond,
draft, bill of exchange, mortgage, judgment, or decree, or who
makes any false entry in any book, report, or statement of the
association, with intent, in either case, to injure or defraud the
association or any other company, body politic or corporate, or any
individual person, or to deceive any officer of the association, or
any agent appointed to examine the affairs of any such association,
and every person who with like intent aids or abets any officer,
clerk, or agent in any violation of this section, shall be deemed
guilty of a misdemeanor and shall be imprisoned not less than five
years nor more than ten. "
Page 121 U. S. 4
Section 5211 requires every banking association organized under
this act of Congress to
"make to the Comptroller of the Currency not less than five
reports during each year, verified by the oath or affirmation of
the president or cashier of such association, and attested by the
signatures of at least three of the directors."
The indictment in this case, which contains but a single count
and is very long, sets out one of these reports, made on the 17th
day of March, 1885, by the petitioner, as cashier, and Charles E.
Jenkins, John B. Whitehead, and Orlando Windsor, as directors, of
the Exchange National Bank of Norfolk, a national banking
association. The indictment also points out numerous false
statements in this report which, it is alleged in the early part of
it, were made
"with intent to injure and defraud the said association, and
other companies, bodies politic and corporate, and individual
persons to the jurors aforesaid unknown, and with the intent then
and there to deceive any agent appointed by the Comptroller of the
Currency to examine the affairs of said association."
Following this allegation come the specifications of the
particulars in which the report is false, and the concluding part
charges that the defendants,
"and each of them did then and there well know and believe the
said report and statement to be false to the extent and in the mode
and manner above set forth, and that they and each of them made
said false statement and report in manner and form as above set
forth with intent to deceive
the Comptroller of the Currency
and the agent appointed to examine the affairs of said
association, and to injure, deceive, and defraud the United States
and said association and the depositors thereof, and other banks
and national banking associations and divers other persons and
associations to the jurors aforesaid unknown, against the peace of
the United States and their dignity, and contrary to the form of
the statute of the said United States in such case made and
provided."
The defendants, having been permitted to withdraw the pleas of
not guilty which they had entered, were then allowed to demur to
the indictment, and, as it is important to be accurate in stating
what was done about this demurrer, the transcript of the record on
that subject is here inserted:
Page 121 U. S. 5
"United States"
"v."
"Geo. M. Bain, Jr., John B. Whitehead,"
"Orlando Windsor, and C. E. Jenkins"
"
I
ndictment for making false entries, etc."
"This day came the parties, by their attorneys, pursuant to the
adjournment order entered herein on the 13th day of November, 1886,
and thereupon the defendants, by their counsel, asked leave to
withdraw the pleas heretofore entered, which being granted, they
submitted their demurrer to the indictment, which, after argument,
was sustained, and thereupon, on motion of the United States by
counsel, the court orders that the indictment be amended by
striking out the words '
the Comptroller of the Currency
and' therein contained. "
"Thereupon, on motion of John B. Whitehead and C. E. Jenkins, by
their counsel, for a severance of trial, it was ordered by the
court that the case be so severed that George M. Bain, Jr., cashier
and director, be tried separately from John B. Whitehead, Orlando
Windsor, and C. E. Jenkins, directors."
"Thereupon the trial of George M. Bain, Jr., was taken up, and
the said defendant, George M. Bain, Jr., entered his plea of not
guilty."
This was done December 13, 1886, thirteen months after the
presentment of the indictment by the grand jury and probably long
after it had been discharged. A verdict of guilty was found against
Bain, a motion for a new trial was made and then a motion in arrest
of judgment, both of which were overruled. The opinion of the
circuit judge on the question which we are about to consider,
delivered in overruling that motion, is found in the record.
The proposition, that in the courts of the United States any
part of the body of an indictment can be amended after it has been
found and presented by a grand jury, either by order of the court
or on the request of the prosecuting attorney, without being
resubmitted to them for their approval is one requiring serious
consideration. Whatever judicial precedents there may have been for
such action in other courts, we are at once confronted with the
fifth of those articles of amendment,
Page 121 U. S. 6
adopted early after the Constitution itself was formed, and
which were manifestly intended mainly for the security of personal
rights. This article begins its enumeration of these rights by
declaring that "no person shall be held to answer for a capital, or
otherwise infamous, crime, unless on a presentment or indictment of
a grand jury," except in a class of cases of which this is not
one.
We are thus not left to the requirements of the common law in
regard to the necessity of a grand jury or a trial jury, but there
is the positive and restrictive language of the great fundamental
instrument by which the national government is organized, that "no
person shall be held to answer" for such a crime, "unless on a
presentment or indictment of a grand jury." But even at common law
it is beyond question that in the English courts, indictments could
not be amended. The authorities upon this subject are numerous and
unambiguous. In the great case of
Rex v. Wilkes, 4 Burrow
2527, tried in 1770, which attracted an immense deal of public
attention, Wilkes, after being convicted by a jury of having
printed and caused to be published a seditious and scandalous
libel, was brought up before the Court of King's Bench on a motion
to set aside the verdict on the ground that an amendment had been
made in the language of the information on which he was tried. In
the course of an opinion delivered by Lord Mansfield overruling the
motion, he remarks on this subject (page 2569) that
"There is a great difference between amending indictments and
amending informations. Indictments are found upon the oaths of a
jury, and ought only to be amended by themselves, but informations
are as declarations in the King's suit. An officer of the Crown has
the right of framing them originally; he may, with leave, amend in
like manner as any plaintiff may do."
Mr. Justice Yates, on the same occasion, said that indictments,
being upon oath, cannot be amended.
Hawkins, in his Pleas of the Crown, Book 2, c. 25, § 97,
says:
"I take it to be settled that no criminal prosecution is
Page 121 U. S. 7
within the benefit of any of the statutes of amendments, from
whence it follows that no amendment can be admitted in any such
prosecution but such only as is allowed by the common law. And
agreeably hereto, I find it laid down as a principle in some books
that the body of an indictment removed into the King's Bench from
any inferior court whatsoever, except only those of London, can in
no case be amended. But it is said that the body of an indictment
from London may be amended because, by the city charter, a tenor of
the record only can be removed from thence."
He further says, § 98:
"It seems to have been anciently the common practice, where an
indictment appeared to be insufficient either for its uncertainty
or the want of proper legal words, not to put the defendant to
answer it, but if it were found in the same county in which the
court sat, to award process against the grand jury to come into
court and amend it. And it seems to be the common practice at this
day, while the grand jury who found a bill is before the court, to
amend it, by their consent, in a matter of form, as the name or
addition of the party."
This language is repeated in Starkie's Criminal Pleading p. 287.
There are, however, several cases in which it has been decided that
the caption of an indictment may be amended, and we therefore give
here the language of Starkie, p. 258, as describing what is meant
by the phrase "caption of an indictment."
"Where an inferior court," he says,
"in obedience to a writ of certiorari from the King's Bench,
transmits the indictment to the Crown office, it is accompanied
with a formal history of the proceeding, describing the court
before which the indictment was found, the jurors by whom it was
found, and the time and place where it was found. This instrument,
termed a schedule, is annexed to the indictment, and both are sent
to the Crown office. The history of the proceedings, as copied or
extracted from the schedule, is called the
caption, and is
entered of record immediately before the indictment."
It will be seen that, as thus explained, the caption is no part
of the instrument found by the grand jury.
Wharton, in his work on Criminal Pleading and Practice,
Page 121 U. S. 8
§ 90, says:
"No inconsiderable portion of the difficulties in the way of the
criminal pleader at common law have been removed in England by 7
Geo. IV. c. 64, §§ 20, 21; 11 & 12 Vict. c. 46, and 14 & 15
Vict. c. 100, and in most of the states of the American union by
statutes containing similar provisions."
He also cites cases in the English courts where amendments have
been made under those statutes, but they can have no force as
authority in this country, even if they permitted such amendments
as the one under consideration.
No authority has been cited to us in the American courts which
sustains the right of a court to amend any part of the body of an
indictment without reassembling the grand jury, unless by virtue of
a statute. On the contrary, in the case of
Commonwealth v.
Child, 13 Pick. 198, 200, Chief Justice Shaw says:
"It is a well settled rule of law that the statute respecting
amendments does not extend to indictments; that a defective
indictment cannot be aided by a verdict, and that an indictment bad
on demurrer must be held insufficient upon a motion in arrest of
judgment."
In the case of
Commonwealth v. Mahar, 16 Pick. 120, the
court having held, upon the arraignment of the defendant, that the
indictment was defective, the Attorney General moved to amend it,
and the prisoner's counsel consented that the name of William
Hayden, as the owner of the house in which the offense had been
committed, should be inserted, not intending, however, to admit
that Hayden was in fact the owner. "But the court was of opinion
that this was a case in which an amendment could not be allowed,
even with the consent of the prisoner."
In the case of
Commonwealth v. Drew, 3 Cush. 279, Chief
Justice Shaw said:
"Where it is found that there is some mistake in an indictment,
as a wrong name or addition or the like, and the grand jury can be
again appealed to, as there can be no amendment of an indictment by
the court, the proper course is for the grand jury to return a new
indictment avoiding the defects of the first."
In the case of
State v. Sexton, 3 Hawks 184, the
Page 121 U. S. 9
supreme court of that state said:
"It is a familiar rule that the indictment should state that the
defendant committed the offense on a specific day and year, but it
is unnecessary to prove in any case the precise day and year,
except where the time enters into the nature of the offense. But if
the indictment lay the offense to have been committed on an
impossible day, or on a future day, the objection is as fatal as if
no time at all had been inserted. Nor are indictments within the
operation of the statutes of jeofails, and cannot therefore be
amended. Being the finding of a jury upon oath, the court cannot
amend without the concurrence of the grand jury by whom the bill is
found. These rules are too plain to require authority, and show
that the judgment of the court was right and must be affirmed."
It will be perceived that the amendment in that case had
reference to a matter which the law did not require to be proved as
it was alleged, and which to that extent was not material. The same
proposition was held in the New York Court of General Sessions in
the case of
People v. Campbell, 4 Parker's Cr.Cas. 387,
where it was laid down that the averments in an indictment could
not be changed even by consent of the defendant.
The learned judge who presided in the circuit court at the time
the change was made in this indictment says that the court allowed
the words, "Comptroller of the Currency and" to be stricken out as
surplusage, and required the defendant to plead to the indictment
as it then read. The opinion which he rendered on the motion in
arrest of judgment, referring to this branch of the case, rests the
validity of the court's action in permitting the change in the
indictment upon the ground that the words stricken out were
surplusage, and were not at all material to it, and that no injury
was done to the prisoner by allowing such change to be made. He
goes on to argue that the grand jury would have found the
indictment without this language. But it is not for the court to
say whether they would or not. The party can only be tried upon the
indictment as found by such grand jury, and especially upon all
Page 121 U. S. 10
its language found in the charging part of that instrument.
While it may seem to the court, with its better instructed mind in
regard to what the statute requires to be found as to the intent to
deceive, that it was neither necessary nor reasonable that the
grand jury should attach importance to the fact that it was the
Comptroller who was to be deceived, yet it is not impossible nor
very improbable that the grand jury looked mainly to that officer
as the party whom the prisoner intended to deceive by a report
which was made upon his requisition and returned directly to him.
As we have already seen, the statute requires these reports to be
made to the Comptroller at least five times a year, and the
averment of the indictment is that this report was made and
returned to that officer in response to his requisition for it. How
can the court say that there may not have been more than one of the
jurors who found this indictment who was satisfied that the false
report was made to deceive the Comptroller, but was not convinced
that it was made to deceive anybody else? And how can it be said
that, with these words stricken out, it is the indictment which was
found by the grand jury? If it lies within the province of a court
to change the charging part of an indictment to suit its own
notions of what it ought to have been, or what the grand jury would
probably have made it if their attention had been called to
suggested changes, the great importance which the common law
attaches to an indictment by a grand jury as a prerequisite to a
prisoner's trial for a crime, and without which the Constitution
says "no person shall be held to answer," may be frittered away
until its value is almost destroyed.
The importance of the part played by the grand jury in England
cannot be better illustrated than by the language of Justice Field
in a charge to a grand jury reported in 2 Sawyer 667.
"The institution of the grand jury," he says,
"is of very ancient origin in the history of England -- it goes
back many centuries. For a long period, its powers were not clearly
defined, and it would seem from the accounts of commentators on the
laws of that country that it was at first a body which
Page 121 U. S. 11
not only accused, but which also tried, public offenders.
However this may have been in its origin, it was at the time of the
settlement of this country an informing and accusing tribunal only,
without whose previous action no person charged with a felony
could, except in certain special cases, be put upon his trial. And
in the struggles which at time arose in England between the powers
of the King and the rights of the subject, it often stood as a
barrier against persecution in his name, until at length it came to
be regarded as an institution by which the subject was rendered
secure against oppression from unfounded prosecutions of the Crown.
In this country, from the popular character of our institutions,
there has seldom been any contest between the government and the
citizen which required the existence of the grand jury as a
protection against oppressive action of the government. Yet the
institution was adopted in this country, and is continued from
considerations similar to those which give to it its chief value in
England, and is designed as means not only of bringing to trial
persons accused of public offenses upon just grounds, but also as a
means of protecting the citizen against unfounded accusation,
whether it comes from government or be prompted by partisan passion
or private enmity. No person shall be required, according to the
fundamental law of the country, except in the cases mentioned, to
answer for any of the higher crimes unless this body, consisting of
not less than sixteen nor more than twenty-three good and lawful
men, selected from the body of the district, shall declare, upon
careful deliberation, under the solemnity of an oath, that there is
good reason for his accusation and trial."
The case of
Hurtado v. People of California,
110 U. S. 516, was
a writ of error to the supreme court of that state by a party who
had been convicted of the crime of murder in the state court upon
an information instead of an indictment. The writ of error from
this Court was founded on the proposition that the provision of the
Fourteenth Amendment to the Constitution of the United States that
no state shall "deprive any person of life, liberty, or property
without due process of law" required an indictment as necessary to
due process of
Page 121 U. S. 12
law. This Court held otherwise, and that it was within the power
of the states to provide punishment of all manner of crimes without
indictment by a grand jury. The nature and value of a grand jury,
both in this country and in the English system of law, were much
discussed in that case, with references to Coke, Magna Charta, and
to other sources of information on that subject, both in the
opinion of the Court and in an exhaustive review of that question
by MR. JUSTICE HARLAN in a dissenting opinion.
It has been said that since there is no danger to the citizen
from the oppressions of a monarch or of any form of executive
power, there is no longer need of a grand jury. But whatever force
may be given to this argument, it remains true that the grand jury
is as valuable as ever in securing, in the language of Chief
Justice Shaw in the case of
Jones v. Robbins, 8 Gray
329,
"individual citizens from an open and public accusation of crime
and from the trouble, expense, and anxiety of a public trial before
a probable cause is established by the presentment and indictment
of such a jury, and in case of high offenses it is justly regarded
as one of the securities to the innocent against hasty, malicious,
and oppressive public prosecutions."
It is never to be forgotten that in the construction of the
language of the Constitution here relied on, as indeed in all other
instances where construction becomes necessary, we are to place
ourselves as nearly as possible in the condition of the men who
framed that instrument. Undoubtedly the framers of this article had
for a long time been absorbed in considering the arbitrary
encroachments of the Crown on the liberty of the subject, and were
imbued with the common law estimate of the value of the grand jury
as part of its system of criminal jurisprudence. They therefore
must be understood to have used the language which they did in
declaring that no person should be called to answer for any capital
or otherwise infamous crime except upon an indictment or
presentment of a grand jury in the full sense of its necessity and
of its value. We are of the opinion that an indictment found by a
grand jury was indispensable to the power of the court to
Page 121 U. S. 13
try the petitioner for the crime with which he was charged. The
sentence of the court was that he should be imprisoned in the
penitentiary at Albany. The case of
Ex Parte Wilson,
114 U. S. 418,
and the later one of
Mackin v. United States, 117 U.
S. 348, establish the proposition that this prosecution
was for an infamous crime within the meaning of the constitutional
provision.
It only remains to consider whether this change in the
indictment deprived the court of the power of proceeding to try the
petitioner and sentence him to the imprisonment provided for in the
statute. We have no difficulty in holding that the indictment on
which he was tried was no indictment of a grand jury. The decisions
which we have already referred to, as well as sound principle,
require us to hold that after the indictment was changed, it was no
longer the indictment of the grand jury who presented it. Any other
doctrine would place the rights of the citizen, which were intended
to be protected by the constitutional provision at the mercy or
control of the court or prosecuting attorney, for if it be once
held that changes can be made by the consent or the order of the
court in the body of the indictment as presented by the grand jury,
and the prisoner can be called upon to answer to the indictment as
thus changed, the restriction which the Constitution places upon
the power of the court in regard to the prerequisite of an
indictment in reality no longer exists. It is of no avail under
such circumstances to say that the court still has jurisdiction of
the person and of the crime, for though it has possession of the
person, and would have jurisdiction of the crime if it were
properly presented by indictment, the jurisdiction of the offense
is gone, and the court has no right to proceed any further in the
progress of the case for want of an indictment. If there is nothing
before the court which the prisoner, in the language of the
Constitution, can be "held to answer," he is then entitled to be
discharged so far as the offense originally presented to the court
by the indictment is concerned. The power of the court to proceed
to try the prisoner is as much arrested as if the indictment had
been dismissed or a
nolle prosequi had been entered. There
was
Page 121 U. S. 14
nothing before the court on which it could hear evidence or
pronounce sentence. The case comes within the principles laid down
by this Court in
Ex Parte
Lange, 18 Wall. 163;
Ex Parte Parks,
93 U. S. 18;
Ex
Parte Wilson, 114 U. S. 418,
and other cases.
These views dispense with the necessity of examining into the
questions argued before us concerning the formation of the grand
jury and its removal from place to place within the district. We
are of opinion that
The petitioner is entitled to the writ of habeas corpus, and
it is accordingly granted.