CoRNELL UNIVERSITY LAw LIBRARY FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY “Tag 0899 FEDERAL CRIMINAL PROCEDURE with Forms for the Defense A Collection of the Federal Statutes and Decisions Governing Procedure in Criminal Cases, Interstate and National Extradition, Habeas Corpus and Criminal Contempt Proceedings By JOHN ELLIOTT BYRNE of the Chicago Bar, Formerly Special Assistant United States Attorney General, and Assistant United States Attorney Chicago CALLAGHAN AND COMPANY 1916 B13 84h ' Copygieut, 1916 BY / CALLAGHAN & COMPANY PREFACE ‘For a number of years the writer has realized the necessity for a work including in comprehensive yet con- cise manner the law of criminal procedure in the federal courts. Heretofore this law has been ascertainable only by, means of a search through the hundreds of United States statutes and thousands of cases. This volume is intended to contain in permanent form the results of such a search, exhaustively and thoroughly made, and to set them forth in systematic and logical arrangement. Only the acts of Congress and the decisions of the courts are included herein. No attempt has been made by the author to go in advance of these law making agencies, and to state what the law may or shall be in matters on which as yet no rule has been formulated by a source of authority. In other words, nothing is contained herein but the law at the present writing. This fact will account for any appearance of limitation in treatment of some of the subjects covered, as well as for the absence of state decisions, the inclusion of which herein would tend rather to mislead than to enlighten. It is hoped that the book will serve as a convenient and trustworthy guide to the law of'federal procedure in the subjects mentioned on its title page. JOHN ELLIOTT BYRNE. March 20th, 1916. ’ CONTENTS CHAPTER I LAWS GOVERNING FEDERAL PROCEDURE § 1. Comparative Influence of Federal, Common and State Laws on Federal Procedure. CHAPTER II SEARCHES AND SEIZURES § 2. Unreasonable Searches and Seizures Forbidden, ‘ (Amdmt. IV, U. 8S. Const.). Nature of the Right of Immunity. Unreasonable Search and Seizure Defined. Use and Disposition of Property Unlawfully Seized. Affidavits for Search Warrants, Requisites of. Cr COD Cor COD SO Oo CHAPTER IIT ARREST, BAIL AND REMOVAL OF OFFENDERS § 7. Arrest and Removal of Federal Offenders, (Rev. Stats. 1014). § 7a. Prisoners to Be Taken Before Nearest Judicial Officer, (Act, Aug. 18, 1894). Warrants of Arrest, Requisites of. Affidavits for Warrants of Arrest, Requisites of. Necessity for Warrant of Arrest. Tilegal Arrest Not Defense on Trial. Protection of Prisoner in Custody. Reward for Arrest. Exemption from Arrest. v ray CP? COP (Or CO? 40> COP COD Hee Der © $0 ht bt be pa § 15. 16. 17. 18. 19. § 20. COP CO? Cr Or § 22. § 23. § 24. § 25. § 26. § 27. § 28. § 29. § 380. § 31. § 8la. § 32. § 33. § 34. 36. 37. 38. 39. 40. 41. CO> (OG CO C02 COD COD 42, 43. 44, 45. CO CO) CP COD CONTENTS Excessive Bail Not to Be Required, (Amdmt, VIII, U. 8. Const.). Decisions regarding Excessive Bail. Bail in Non-Capital Cases, (Rev. Stats. 1015). Bail in Capital Cases, (Rev. Stats. 1016). Power to Take Bail. Bail in Appellate Court. Surrender of Principal by Sureties, (Rev. Stats. 1018). Decisions regarding Surrender of Principal by Sureties. Forfeiture of Bail Not Dependent on Indictment. Notice to Sureties. Remission of Penalty of Forfeiture, (Rev. Stats. 1020). Time for Application for Remission. Removal of Offenders. _ Sufficiency of Complaint. Preliminary Examination. Evidence at the Hearing. Defenses at the Hearing. No Restriction as to Number of Proceedings. Committing Magistrate’s Decision. Order of the Court. Warrant of Removal. f CHAPTER IV INTERNATIONAL EXTRADITION Extradition of Fugitives from Foreign Country, (Rev. Stats. 5270). Law Governing International Extradition. For What Offenses Extradition Granted. Negotiations for Extradition. The Complaint. The Warrant. Extradition Hearings to Be Public, (Sec. 1, Act, Aug. 3, 1882). Extradition Commissioner’s Powers. Evidence and Probable Cause. Request by Foreign Government. Defenses. { (Oa CO COD Oo COD CO CO COD CO CO2 COD COD CO? COD COP COP - 46, 47. 48. 48a. 49. 50. 51. 52. 53. 54, 55. 56. 57. 58. 59. 60. 61, 62. 63. 64. 65. 66. 67. 68. 69. 70. CONTENTS vii Trial Must Be for Same Offense. Appeal and Habeas Corpus. Authenticated Copies of Foreign Depositions Admissible in Evidence, (Rev. Stats. 5271). Authenticated Copies of Foreign Papers Admissible in Evidence, (Sec. 5, Act, Aug. 3, 1882). Decisions Regarding Authentication of Documents. Witnesses for Indigent Defendant at Government Ex- pense, (Sec. 3, Act, Aug. 3, 1882). Surrender and Removal of Fugitive, (Rev. Stats. 5272). Two Months Allowed for Removal of Fugitive, (Rev. Stats. 5278). Detention of Prisoner, and Bail. Extradition Dependent on Treaty, (Rev. Stats. 5274). Protection of Prisoner Received from Foreign Govern- ment, (Rev. Stats. 5275). Powers of Agent Receiving Prisoner from Foreign Gov- ernment. CHAPTER V INTERSTATE EXTRADITION Surrender of Fugitive from Justice of a State, (Art. IV, Sec. 2, U. S. Const.). Construction of Constitutional Provisions. Procedure for Extradition of Fugitives from Justice of States, (Rev. Stats. 5278). Duties of Governors. All Crimes Extraditable. Fugitive from Justice Defined. Fugitive from Justice—Proof. Offenses Against Two States. Documents Necessary. Requisites of Indictment or Affidavit. Defenses. Trial for Other Than Extradition Offense. Tegal Arrest and Extradition. Habeas Corpus,—Scope of Inquiry. Vili 8 §: § § Cn COR COs COD C02 COo Cae Car C2 Cae CO CONTENTS CHAPTER VI REMOVAL OF CAUSES FROM STATE COURTS 71. 72, 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84, 85. 86. 87. 88. 89. 90. 91. 92. 93. Removal of Cases Involving Civil Rights of Citizens, and Procedure Therefor, (Sec. 31, Judicial Code). Removal Only for Unjust State Law or Practice. Custody of Prisoner After Conclusion of Case. Prisoner to Be in Custody of United States Authorities Pending Trial, (Sec. 32, Judicial Code). Change of Jurisdiction. Removal of Suits Against Persons Acting Under United States Authority, (Sec. 33, Judicial Code). Petition for Removal and Procedure Thereon. Commencement of Prosecution. Execution of Judgment. CHAPTER VII THE GRAND JURY Qualifications of Federal Jurors, (Sec. 275, Judicial Code). Disqualifications of Grand Jurors. , Disqualifications of Grand Jurors,—Time and Manner of Objecting to. Manner of Drawing Federal Jurors, (Sec. 276, Judicial Code). Decisions Regarding Drawing of Jurors. Jurors to Be Obtained from Such Parts of District as Court Shall Direct, (Sec. 277, Judicial Code). Decisions Regarding District of the Jury. Race and Color No Disqualification for Jury Service, (See. 278, Judicial Code). Decisions Regarding Race and Color of Jurors. Service and Return of Writs of Venire Facias, (Sec. 279, Judicial Code). Necessity for Writs of Venire Facias. Number of Members Constituting Grand Jury, (Sec. 282, Judicial Code). Decisions Regarding Number of Members of Grand Jury. Appointment of Foreman, (Sec. 283, Judicial Code). 94. 95. 96. 97. 98. 99, § 100. § 101. § 102. § 103. § 104. § 105. § 106. § 107. § 108. § 109. CO> C02 CO) CO) “2 COA § 110. § 110a. § 111. § 112. § 113. § 114. § 115. § 116. § 117. § 118. § 119. § 120. § 121. § 122. § 123, $124, § 125. CONTENTS ix Substitution of Foremen. Court’s Discretion in Summoning Grand Juries. Impaneling,—in general. Order of Court for Grand Jury. Discharge of Grand Jury, (Sec. 285, Judicial Code). Decisions Regarding Discharge of Grand Jury. Oath of Grand Jurors. Powers and Duties of Grand Jury. Requisites of Grand Jury Subpoenas. Prejudice of Grand Jurors. Defendant’s Immunity Before Grand Jury. Evidence Before Grand Jury. District Attorney’s Duties. Return of Indictments. Recalling Witnesses for Second Indictment. Unauthorized Persons in Grand Jury Room. CHAPTER VIII , INDICTMENT AND INFORMATION Necessity for Indictment, (Amdmt. V, U. S. Const.). Jurisdiction of District Courts Over Criminal Cases, (Sec. 24, Judicial Code). Decisions Regarding Necessity for Indictment. Indictment and Presentment Defined. Information,—Nature and Requisites of. Infamous Crime Defined. Caption, Conclusion, Signing and Indorsement of Indict- ment. Grand Jury,—Description of. Naming Defendant. Naming Third Persons. Time and Dates. Then and There. Continuing Crimes,—Alleging Time and Place of. Trial Jury to Be from District Where Crime Committed, (Amdmt. VI, U. 8. Const.).’ Decisions Regarding District in Which Crime Committed. Venue. Place of Crime in Homicide, (Sec. 336, Criminal Code). § 126. § 127. § 128. § 129. § 130. § 181. § 182. § 133. § 134, § 135. § 136. § 137. § 138. § 139. § 140. § 141. § 142. § 143. § 144. § 145. § 146. § 147. § 148. § 149. § 150. § 151. § 152. § 158. § 154. § 155. CONTENTS Decisions Regarding Allegation of Time and Place in Homicide. — Capital Offenses—Place of Trial, (Sec. 40, Judicial Code). ‘One Offense in Two Districts, (Sec. 42, Judicial Code). Cases Regarding Venue When Crime Extends into Two Districts. Offenses on High Seas,—Place of Trial, (Sec. 41, Judicial Code). Offenses on High Seas,—Place of Trial, Decisions Re- garding. Place of Trial in Districts Containing Divisions, (See. 53, Judicial Code). Decisions Regarding Divisions of Districts. Crimes Assimilated from State Laws, (Secs. 289 and 272, Criminal Code). Decisions Regarding Crimes Assimilated from State Laws. Construction and Purposes of Indictment. Certainty in the Indictment. Implications from Language of Indictment. Conclusions of Law. Minute Acts. Recital. Conjunctives and Disjunctives. Repetition Avoided by Reference. . Abbreviations. Grammatical and Orthographical Errors. Use of Statutory Language. Departmental Regulations. Generic Statutory Terms. Statutory Terms of Similar Meaning. Common Law Terms in Statutes. Statutory Exceptions. Duplicity,—Definition and Instances of. Duplicity,—Manner of Objecting to. Repugnancy. Joinder and Consolidation of Charges, (Rev. Stats. 1024). § 156. § 157. § 158. § 159. § 160. § 161. § 162. § 163. § 164. § 165. § 166. § 167. § 168. § 169. § 170. § 171. § 172. § 173. § 174. § 175. § 176. § 177. § 178. § 179. § 180. § 181. § 182. § 183. § 184. § 185. § 186. § 187. § 188. CONTENTS: xi Decisions Regarding Joinder and Consolidation of Charges. Election of Charges. Joinder of Defendants. Severance. Felonies Defined, (Sec. 335, Criminal Code). Decisions Regarding Definition of Felonies, ‘‘Unlawfully,’’ ‘‘Feloniously,’’ and Other Adverbs. Intent. Knowledge. Collateral Matters. Matters of Inducement. Matters of Evidence. Matters Unknown to Grand Jury. Matters of Defense. Surplusage and Unnecessary Description. Principals Defined. Decisions Regarding Principals and Accessories. Charging of Aiding and Abetting. Causing and Procuring Crime. Attempts. Written Instruments——When Tenor Necessary. Written Instruments——When General Description Suffi- cient. Obscene Writings. Money,—Description of. Property,—Description of. Value,—Allegation of. ’ ! CHAPTER Ix PLEAS AND MOTIONS BEFORE TRIAL A—PLEAS IN ABATEMENT Grounds for. Requisites of Plea. Time for Filing. Joinder of Pleas. Plea of Insanity. Matters of Law and of Fact. Judgment on Plea. § 189. § 190. § 191. § 192. § 193. § 194. § 195. § 196. § 197. § 198. § 199. § 200. § 201. § 202. § 203. § 204. § 205. § 206. § 207. § 208. § 209. § 210. § 211. 8°12. § 213. § 214. § 215. § 216. CONTENTS B—MOTION TO QUASH Grounds for. Time for Filing. The Motion as Evidence. Quashal in Court’s Discretion. C—DEMURRER Formal Defects in Indictment Not Demurrable, (Rev. Stats. 1025). Decisions Regarding Formal Defects in Indictments. Use and Effect of Demurrer. Admission by Demurrer. Consideration of Demurrer in Appellate Court. When Demurrer Overruled, Defendant to Answer Over, (Rev. Stats. 1026). - Effect of Pleading Over. D—BILL OF PARTICULARS When Proper. Effect of. Discretion of Court. E—NOLO CONTENDERE Nature and Effect of Plea. F—DOUBLE JEOPARDY Double Jeopardy Forbidden, (Amdmt. V, U. S. Const.). Application of Constitutional Provisions. Effect of Arraignment and Plea. Discharge of Jury Before Verdict. Effect of Judgment Without Jurisdiction. Effect of New Trial Through Defendant’s Appeal. G—FORMER ACQUITTAL OR CONVICTION Effect of Judgment by Court Martial. Effect of Judgment by Court of Concurrent Jurisdiction. Perjury Charge after Acquittal,—When Proper. Effect of Discharge in Habeas Corpus. Effect of Nolle Prosequi. Plea Must Show Identity of Offenses. Identity of Offenses Discussed. § 217. § 218. § 219. § 220. § 221. § 222. § 223. § 224. § 225. § 226. § 227. § 228. § 229. § 230. § 231. § 232, § 233. § 234. § 235. § 236. § 237. § 238. § 239. CONTENTS xiii Effect of Judgment for Single Act Constituting Double Offense. = Effect of Judgment as to Continuous Offense. Form of and Practice on Plea. ; H—GUILTY AND NOT GUILTY _ Prisoner Standing Mute Pleads Not Guilty, (Rev. Stats. 10382). Statute Applies to Informations. Necessity for Plea of Guilty or Not Guilty. Effect of Plea of Guilty. Effect of Plea of Not Guilty. Withdrawing Plea of Guilty or Not Guilty. I—PARDON Pardoning Power in President, (Art. II, Sec. 2, U. S. Const., and Sec. 327, Criminal Code). Nature and Effect of Pardon. Pleading Pardon. Acceptance of Pardon. J—NOLLE PROSEQUI Power of Attorney General. Time for Entering Nolle Prosequi. K—STATUTES OF LIMITATIONS Limitation on Prosecution for Capital Offenses, (Rev. Stats. 1043). Limitation on Prosecution for Non-Capital Offenses, (Rev. Stats. 1044). Statute Suspended by Flight, (Rev. Stats. 1045). Limitation as to Prosecution under Revenue Laws, (Rev. Stats. 1046). Pleading Statute of Limitations, Running of Statute. Decisions Regarding Effect of Flight. CHAPTER X THE TRIAL JURY Right to Jury Trial, (Art. IIT, U. S. Const. and Amdnt. VI, U. S. Const.). Byrne’s Crim. Proc.—2 xiv § 240. § 241. § 242. § 243. § 244. § 245. § 246. § 247. § 248, § 249, § 250. § 251. § 252. § 253. § 254. § 255, § 256. § 257. § 258. § 259. § 260. § 261. § 262. § 263. § 264. § 265. CONTENTS Application of Sixth Amendment, in General. To What Crimes Applicable. District from Which Jury Obtained. Effect of Waiver of Jury. Right to Speedy Trial. Summoning Bystanders to Complete Petit Jury, (Sec. 280, Judicial Code). Decisions Regarding Summoning of Bystanders. Term of Jury Service, (Sec. 286, Judicial Code). Number of Challenges Allowed Parties, (Sec. 287, Judi- cial Code). Effect of Common and State Law on Challenges. Effect of Consolidation of Indictments on Challenges. Practice as to Challenges. Scope of Examination of Jurors. Grounds for Challenges for Cause. Error of Court as to Challenges. Challenges in Bigamy Cases, etc., (Sec. 288, Judicial Code). _ Application of Sec. 288, Judicial Code, to Grand Jurors. CHAPTER XT SPECIAL FEATURES A—DEFENDANT’S PRESENCE IN COURT During Trial. At Sentencing. Involuntary Attendance of Defendant. Right of Confrontation of Witnesses. Defendant as a Witness. Defendant’s Presence in Appellate Court. B—RIGHT TO COUNSEL AND WITNESSES Copy of Indictment and List of Jurors and Witnesses to Be Furnished Defendant in Capital Cases, (Rev. Stats. 10383). Decisions Regarding Defendant’s Rights under Rev. Stats. 1033. Defendant in Capital Case Entitled to Counsel and to Compel Witnesses, (Rev. Stats. 1034). / § 266. § 267. § 268. § 269. § 270. § 271. § 272. § 278. § 274. § 275. § 276. § 277. § 278. § 279. § 280. § 281. § 282. § 283. § 284. § 285, § 286. § 287. § 288. § 289. § 290. § 291. .§ 292. § 293. CONTENTS xv Witnesses for Indigent Defendants at Government Ex- pense, (Rev. Stats. 878). Decisions Regarding the Procuring of Defendants’ Wit- nesses at Government Expense. Right of Counsel to See Defendant. C—-IMMUNITY FROM SELF-CRIMINATION No Person to Be a Witness Against Self, (Amdmt. IV, U.S. Const.). > Immunity of Defendant on Trial. Immunity of Witnesses. As to Obtaining and Use of Evidence. Construction of Laws Granting Immunity. D—ARGUMENT TO THE JURY Scope of Argument. Improper Argument,—When Prejudicial. E—COURT’S DUTIES AND POWERS In General. Administering Oaths. Examination of Witnesses. Regulating Order of Proof. Allowance of Leading Questions. Time for Motions. Exclusion of Witnesses and Spectators. Process for Witnesses. Ruling on Continuances. Change of Venue When Judge Interested in Case, (Sec. 20, Judicial Code). . , Interest of Judge Discussed. Change of Venue When Judge Prejudiced, (Sec. 21, Judicial Code). Remarks by Court to Jury. Supervision of Jury by Court. De Facto Judges. F—DUE PROCESS OF LAW Due Process to Be Observed, (Amdmt. V, U. S. Const.). Due Process Defined. Due Process,—Matters Not Required by. § 294. § 295. § 296. § 297. § 298. § 299. § 300. § 301. § 302. § 303. § 304. § 305. '§ 306. § 307, § 308. § 309. § 310. § 311. § 312. § 313. § 314. § 315. § 316. § 317. § 318. § 319. § 820. § 321. CONTENTS CHAPTER XII THE CHARGE TO THE JURY . Manner of Delivering Charge. Issues of Fact to Be Decided by Jury. Issues of Fact Becoming Questions of Law. Comment on Evidence by Judge. Curing Errors by the Charge. Requested Instructions,—When to Be Given. Error in the Charge. Charge to Be Considered as an Entirety. Time for Exceptions to Charge. CHAPTER XIII THE VERDICT General and Specific Verdicts. Different Verdicts as to Different Counts. Verdict Against Part of Several Joint Defendants, (Rev. Stats. 1036). Verdict in Consolidated Cases. Verdict of Less Offense Than Charged, (Rev. Stats. 1035). Decisions Regarding Verdicts for Lesser Offenses. Qualified Verdicts in Capital Cases, (Sec. 330, Criminal Code). Qualified Verdict,—Question for Jury. Directing Verdict of Acquittal. Verdict of Guilty Cannot Be Directed. Directing Verdict in Quasi-Criminal Cases. Verdict,—Sufficiency of Evidence. Sealed Verdicts. Verdict on Sunday. General Verdict Sustained by One Good Count. Repugnancy and Surplusage in Verdict. Verdict,— When Indictment Too Broad. Verdict as Affected by Conduct of Jury. Verdict,—Effect on Errors. * CONTENTS . xvii CHAPTER XIV MOTION FOR NEW TRIAL AND MOTION IN eats § 322, -§ 323, § 824, § 325. § 326. § 327. § 328. § 329. § 330. § 331. § 332. § 333. § 834. § 335. § 336. § 337. § 338. § 339. § 340. § 341. § 342. OF JUDGMENT A—MOTION FOR NEW TRIAL New Trial in Dis¢retion of Court. Time for Motion for New Trial. Defendant’s Presence at Motion for New Trial. New Trial as to Some of Joint Defendants. Disqualification of Jurors as Ground for’ New Trial. Separation of Jury as Ground for New Trial. Evidence Not Produced at First Trial, as Ground for New Trial. Information Improperly Given to Jury, as Ground for New Trial. Error in Admission or Rejection of Evidence, as Ground for New Trial. 1 Error in Charge, as Ground for New Trial. B—MOTION IN ARREST OF JUDGMENT Grounds for Motion in Arrest. Time for Motion in Arrest. CHAPTER XV THE SENTENCE ‘' Effect of State Laws. Imprisonment for More Than a Year,—Place of (Rev. Stats. 5541). Decisions Regarding Sentence to Imprisonment for More Than a Year. Sentence to Hard Labor,—Place of, (Rev. Stats. 5542). Decisions Regarding Sentences to Penitentiary Imprison- ment. Hard Labor -cStmpaaiion of, (Sec. 338, Gueminal Code). Hard Labor,—Form of Sentence. Death Punishment by Hanging, (Sec. 325, Criminal Code). \ Death Sentence,—Time and Place of Execution. § 343. § 344. § 845. § 346. § 347. § 348, § 349. § 350. § 351. § 352. § 353. § 354. § 355. § 356. § 357. § 358. § 359. § 360. § 361. § 362. § 363. § 364. § 365. § 366. § 366a. § 367. CONTENTS Dissection of Body of Person Executed, (Sec. 331, Criminal Code). Execution in Capital Cases Postponed Pending Appellate Proceedings, (Rev. Stats. 1040). Discharge of Indigent Convicts, (Rev. Stats. 5296). Decisions Regarding Discharge of Indigent Convicts. Whipping and the Pillory Forbidden, (Sec. 325, Crim- inal Code). Cruel and Unusual Punishments Forbidden, (Amdut. VIII, U. S. Const.). Cruel and Unusual Punishments Defined. Corruption of Blood and Forfeiture of Estate Forbidden, (See. 324, Criminal Code). Imprisonment to Enforce Payment of Fine. Sentencing of Corporations. Abatement of Fine by Death. Affirmance of Conviction,—Effect of. Several Sentences as to Joint Defendants. Calling on Defendant to Speak Before Sentence. Cumulative Sentences,—When Proper. Concurrent Sentences,— When Proper. Running of Sentence. Postponement of Sentence. Suspension of Sentence. Change of Sentence. Correction of Sentence. Incompetency Through Conviction. Error in Sentence. CHAPTER XVI WRIT OF ERROR Writs of Error from U. 8. Supreme to State Courts, (Sec. 237, Judicial Code). Decisions Regarding Writs of Error from U. 8. Supreme to State Courts. Writs of Error from U. 8S. Supreme to U. S. District Courts, (Sec. 238, Judicial Code). § 368. § 369. § 370. § 371. § 372. § 873. § 374. § 375. § 376. § 377. § 378. § 379. § 380. § 381. § 382. § 383. § 384. § 385. § 386. § 387. § 388. § 389. § 390. § 391. § 392. § 393. § 394. § 395. § 396. § 397. § 398. CONTENTS xix Decisions Regarding Writs of Error from U. 8. Supreme to U. S. District Courts. Writs of Error on Behalf of United States, (Act, March 2, 1907). Decisions Regarding Writs of Error on Behalf of United States. Writs of Error from U. 8. Cireuit Court of Appeals to U. S. District Courts, (Sec. 128, Judicial Code). What Criminal Judgments Reviewable. Criminal Judgments Reviewable by Writ of Error Only. Certiorari from U. 8. Supreme to U. S. Circuit Courts of Appeals, (Sec. 240, Judicial Code). Decisions Regarding Certiorari. Bill of Exceptions,—Allowance and Authentication of, (Rev. Stats. 953). Necessity for Bill of Exceptions. Authentication of Bill of Exceptions. Setting Forth Evidence in Bill of Exceptions. Setting Forth Charge in Bill of Exceptions. Necessity for Objections and Exceptions. Objections Must Be Specific. Objections Must Be Prompt. Necessity for Assignment of Error. Assignments of Error Must Be Specific and Based a the Record. Appeal Not a Matter of Right. Defendant Only Can Appeal. Time for Bringing Writ of Error. The Citation. Effect of Flight on Writ of Error. Requirements of Record on Appeal. Amending the Record. Record Must Show Jurisdiction. Presumption of Regularity. Effect of Errors Advantageous or Not Prejudicial to Defendant. Review of Discretionary Actions of Court. Joint Decision on Joint Writ of Error. Effect of Supersedeas. § 399, § 400. § 401. § 402, § 403, § 404. § 405. § 406. § 407. § 408. § 409. § 410. § 411. § 412. § 418. § 414. § 415. § 416. § 417. § 418. § 419. § 420. § 421. § 422. § 423. CONTENTS CHAPTER XVII HABEAS CORPUS AND CONTEMPT A—HABEAS CORPUS Power of Federal Courts to Issue Writs of Habeas Corpus, (Rev. Stats.’ 751). Decisions Regarding Powers of Federal Courts in Habeas Corpus Cases. Power of Judges to Grant Writs of Habeas Corpus, (Rev. Stats. 752). Decisions Regarding Power of J udges to Grant Writs of Habeas Corpus. Writs of Habeas Corpus When Prisoner Is In Jail, (Rev. Stats. 753). Decisions Regarding Writs of Habeas Corpus When Prisoner Is In Jail. Application for the Writ of Habeas Corpus, (Rev. Stats. 754). Decisions Regarding the Application for the Writ of Habeas Corpus. Allowance and Direction of the Writ, (Rev. Stats. 755). Decisions Regarding Allowance of the Writ. Time for Making Return, (Rev. Stats. 756). Contents of Return, (Rev. Stats. 757). Function and Effect of Return. Body of Prisoner to Be Produced, (Rev. Stats. 758)... Effect of Writ on Prisoner’s Custody. Time for Hearing, (Rev. Stats. 759). Denial of Return, and Amendments, (Rev. Stats. 760). Summary Hearing and Disposition of Party, (Rev. Stats. 761). Final Judgment on Habeas Corpus. Effect of Change in Status Pending Hubaus Corpus. Effect of Discharge. In International Cases, Notice to Be Given State At- torney-General, (Rev. Stats. 762). Right of Appeal in Habeas Corpus Case. Practice on Appeal in Habeas Corpus Cases. Effect of Appeal in Habeas Corpus. § 424. § 425, § 426. § 427. § 428. § 429. § 430. § 431. § 432. § 433. § 434. § 435. § 436. § 437. § 438. § 439. § 440. § 441. § 442. § 443. § 444. § 445. § 446. § 447. § 448, § 449. CONTENTS xxi Suspension of Privilege of Writ of Habeas Corpus, (Art. I, See. 9, U. 8. Const.). Decisions Regarding Suspension of the Privilege of the Writ. Use of Habeas Corpus io Review Errors. Jurisdictional Errors Discussed. Habeas Corpus Distinct from Writ of Error. Use of Habeas Corpus to Anticipate Errors. Use of Habeas Corpus in Lieu of Other Remedies. Use of Habeas Corpus in Moot Cases. Inquiry by State Courts into Federal Cases. Inquiry by Federal Courts into State Cases. Use of Habeas Corpus to Review Extradition Pro- ceedings. Use of Habeas Corpus to Review Removal Cases. Use of Habeas Corpus to Review Courts Martial. Use of Habeas Corpus to Correct Sentence. Certiorari as Auxiliary to Habeas Corpus. B—CONTEMPT Power of Federal Courts to Punish OBL (Sec. 268, Judicial Code). Decisions Regarding Power of Federal Courts in Con- tempt Cases. Nature of Contempt Proceedings. Contempt Defined. Procedure at Contempt Hearing. Manner of Presenting Defense. ‘Form of Sentence. Effect of Contempt Proceedings on Other Prosecutions. CHAPTER XVIII FORMS AFFIDAVITS Affidavit on Actual Knowledge. Affidavit on Information and Belief. Affidavit Partly on Actual Knowledge and Partly on In- formation and Belief. oy § 450. § 451. § 452. § 453. § 454. § 455. § 456. § 457. § 458. § 459. § 460. § 461. § 462. § 463. § 464. § 465. § 466. § 467. § 468. § 469. CONTENTS SEARCHES AND SEIZURES Affidavit for Search Warrant to Search Premises Being Used to Commit a Fraud Upon the Revenue. Search Warrant to Search Premises Being Used to Com- mit a Fraud upon the Revenue. ‘ Affidavit for Search Warrant to Search for Merchandise Imported Without Payment of Duty. Search Warrant to Search for Merchandise Imported ‘Without Payment of Duty. Motion to Quash Subpoena as Attempting an Unreason- able Search and Seizure. ; Petition for Return of Property Unlawfully Seized to Be Used as Evidence Against Owner in Criminal Case. Motion to Impound Evidence Before Trial. Motion to Vacate Order Impounding Documentary Hvi- dence. ARREST, BAIL AND REMOVAL OF PERSONS Complaint Before United States Commissioner. United States Commissioner’s Warrant of Arrest. United States Commissioner’s Subpoena. Recognizance Before United States Commissioner. Bail Bond Pending Writ of Error.. Scire Facias on Bail Bond. Petition for Remission of Bail Bond Forfeiture. INTERNATIONAL EXTRADITION Requisition on Foreign Government for Surrender of Fugitive from Justice. Warrant of Arrest of Fugitive from Justice of a Foreign Government. INTERSTATE EXTRADITION Extradition Requisition by Governor of One State to Governor of Another. Warrant of Arrest of Fugitive from Justice of a State. REMOVAL OF CAUSES Petition of United States Revenue Officer for the Re- moval to a Federal Court of an Indictment Against Him in a State Court. CONTENTS xxiii § 470. Order for Certiorari to Remove Cause. § 471. Writ of Certiorari to Remove Cause. INFORMATION § 472. Information by United States Attorney. § 473. Affidavit to Information. PLEAS AND MOTIONS BEFORE TRIAL § 474. Affidavit in Support of Application for Continuance Be- cause of Absence of Witness. § 475. Demurrer on Various Grounds: a—Uncertainty by Reliance on Inference. b—Use of Legal Conclusions. e—Unceertainty by Use of Disjunctive. d—Uncertainty in Abbreviations. e—Failure to Allege Guilty Knowledge. f{—Uncertainty Through Failure to Describe Spe- cifically. - g—Failure to Negative Statutory Exception. h—Duplicity by Charging Two Distinct Offenses in One Count. i—Repugnancy by Charging a Condition Impossible in Fact. ! j—Failure to Allege Statutory Intent. k—Unceertainty for Lack of Proper Description. 1—Unceertainty in Failing to Allege a Material Name. m—Failure Sufficiently to Describe an Obscene Paper. § 476. Motion to Quash Indictment on Various Grounds: a—Disqualification of Grand Jurors. b—Exclusion of Persons from Grand Jury Service Because of Race or Color. e—Incompetency of Evidence Before Grand Jury. d—Improper Infiuence by United States Attorney. e—Improper Return of Indictment. f—Presence of Unauthorized Person in Grand Jury Room. g—Amending the Indictment. h—Improper Consolidation or Joinder of Charges. § 477. Motion for Bill of Particulars. § 478. Motion to Quash Information for Lack of Affidavit. XXIV § 479. § 480. § 481. § 482. § 483. § 484. § 485. § 486. § 487. § 488. § 489. § 490. § 491. § 492. § 493. § 494. § 495. § 496. § 497. § 498. § 499. § 500. § 501. § 502. § 503. § 504. ‘CONTENTS Motion to Quash Information for Insufficiency of Affi- davit. Plea of Misnomer. Plea of Nolo Contendere. Plea of Former Jeopardy. Plea of Former Acquittal. Plea of Former Conviction. Petition to Obtain Attendance of Defendant’s Witnesses at Government Expense. Petition for Change of Venue from One Division of a District to Another. Petition for Designation of Different Judge for Trial Because of Prejudice of Presiding Judge. Petition for Designation of Different Judge for Trial Because Presiding Judge Has Been Counsel for a Party. c SENTENCE Sentence Imposing Imprisonment. Sentence Imposing Fine. Application for Discharge of Indigent Convict Confined for Non-Payment of Fine or Costs. MOTION FOR NEW TRIAL AND IN ARREST OF JUDGMENP Motion for New Trial. Motion in Arrest of Judgment. WRIT OF ERROR Petition for Writ of Error. Assignment of Errors. Writ of Error. Citation to Writ of Error. Acceptance and Service of Citation. Bill of Exceptions. Petition for Certiorari for Diminution of Record. Motion for Certiorari in Supreme Court. Petition for Certiorari in Supreme Court. Affidavit to Petition for Certiorari in Supreme Court. HABEAS CORPUS Petition for Habeas Corpus on Ground That Excessive Bail is Required. § 505. § 506. § 507. § 508. § 509. § 510. § 511. § 512. § 513. § 514. § 515. § 516. § 517. CONTENTS xxv Petition for Habeas Corpus in Extradition Case on Ground That No Crime Charged under Laws of De- manding State. Order Granting Writ of Habeas Corpus. Writ of Habeas Corpus. Return to Writ of Habeas Corpus. Traverse to Return in Habeas Corpus. Order of Discharge in Habeas Corpus. Order Remanding Petitioner in Habeas Corpus. Attachment for Disobedience of Writ of Habeas Corpus. = CONTEMPT Information for Contemptuous Publication. Order to Show Cause Why Respondent Should Not Be Punished for Contempt. Attachment in Contempt. Order Punishing Contempt Committed in Court? 8 « Presence. Answer of Alleged Contemnor. Federal Criminal Procedure CHAPTER I LAWS GOVERNING FEDERAL PROCEDURE §1. Comparative Influence of Federal, Common and State Laws on Federal Procedure. t § 1. Comparative influence of federal, common and state laws on federal procedure—The courts of the United States derive their criminal jurisdiction from the statute law of Congress solely.1 Criminal cases in the federal courts are governed and controlled by federal statutes and state statutes and decisions under state stat- utes are inapplicable,? except in so far as such statutes or decisions may be persuasive.® In the absence of federal laws, however, the courts of the United States are governed in the administration of criminal law by the rules of the common law rather than state laws‘ so that, for instance, the rules of evidence in the federal courts are those which were in force at com- mon law in the state at the time the federal court therein was created, as amended thereafter. by Congress, but unaffected by subsequent state statutes.® 1—U. 8. v. Eaton, 144 U. S. 677; Cohen v. U. S., 214 Fed. 23. Pooler 36 L. Ed. 591. U.S. v. Dietrich, v. U. S., 127 Fed. 509. U.S. v. 126 Fed. 676. Peters v. U.S. 94 Nye, 4 Fed. 888. See, however, Fed. 127. | U. S. v. Wells, 163 Fed. 313. 2—Ex parte Fiske, 113 U. S. 713; 4—Lang v. U. S., 133 Fed. 201. 28 L. Ed. 1117. Jones v. U. S..162 Radford v. U, S., 129 Fed. 49. Fed. 417. 5—Maxey v. U. S., 207 Fed. 327. 3—Howard v. U. S., 75 Fed. 989. Pooler v. U. S., 127 Fed. 509. CHAPTER IT SEARCHES AND SEIZURES § 2. Unreasonable Searches and Seizures Forbidden. §3. Nature of the Right of Immunity. § 4. Unreasonable’ Search and Seizure Defined. §5. Use and Disposition of Property Unlawfully Seized. §6. Affidavits for Search Warrants, Requisites of. § 2. Unreasonable searches and seizures forbidden.— Amendment IV, United States Constitution. ‘‘The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’’ 9 Fed. Stats. Anno. 249. §3. Nature of the right.—An individual cannot plead his personal constitutional right of immunity from self- incrimination and from unreasonable searches and seiz- ures to justify refusal to produce corporate books and records in obedience to a subpoena, such right being per- sonal only.1 But corporations themselves are under the protection of these provisions of the Constitution regard- ing search and seizure, as well as are natural persons.’ § 4. Unreasonable search and seizure defined.—It does not require actual entry upon premises and search for : ‘ | 1—Wheeler v. U. S., 226 U. S. 2—Hale v. Henkel, 201 U. 8S. 43; 478; 57 L. Ed. 309. Hale v. Henkel, 50 L. Ed. 652. U.S. v. McHie, 194 201 U. 8. 43; 50 L. Ed. 652. Fed. 894. 2 § 5] and seizure of papers to constitute an unreasonable search and seizure within the meaning of the fourth amendment; a compulsory production of a party’s private books and papers to be used against himself or his property in a criminal or penal proceeding or for a forfeiture, is within the spirit and meaning of the amendment.® However, a federal court has power to impound books and papers, although the property of a third person and unlawfully or irregularly seized by officers of the gov- ernment, where such papers are shown to be essential evidence in a criminal case.* The constitutional provisions are limitations on the power of the government to make an unreasonable search or seizure, but do not prevent the use by. the state of the fruit of an unlawful search or seizure made by an indi- vidual as such.5 A subpoena duces tecum so broad as practically to include all the books of a corporation, is equivalent to an unreasonable search or seizure.° For instances of sub- poenas not too broad, see the following.” SEARCHES AND SEIZURES 3 ‘§5. Use and disposition of property unlawfully seized.—E\vidence otherwise competent is not inadmis- sible because obtained by means of an unlawful search and seizure,’ but where defendant seasonably and before trial applies to the court for an order restoring to him certain of his property seized by officers without warrant or authority of law, it is reversible error for the court to refuse such order and to allow said property to be used 3—Boyd v. U. S., 116 U.S. 616; 29 L. Ed. 746. , 4—U. 8. v. McHie, 196 Fed. 586. 5—Bacon v. U. S., 97 Fed. 35. 6—Hale v. Henkel, 201 U. S. 43; 50 L. Ed. 652. 7—Wilson v. U. S., 221 U. 8. 361; 55 L. Ed. 771. Hammond Packing Co. v. Arkansas, 212 U. S. 322; 53 L. Ed. 530. Consolidated Rendering Byrne’s Crim. Proc.—3 Co. v. Vermont, 207 U. S. 541; 52 L. Ed. 327. ; 8—Bacon v. U. S., 97 Fed. 35. Ripper v. U. S., 178 Fed. 24. Hart- man v. U. 8., 168 Ped. 30. Hardesty v. U. S., 164 Fed. 420. Holt v. U. 8.,.218 U. 8. 245; 54 L. Ed. 1021. Adams v. New York, 192 U. 8. 585; 48 L. Ed. 575. 4 FEDERAL CRIMINAL PROCEDURE [§5 as evidence against defendant at the trial.® And it is within the power of the court to order the property unlawfully obtained, to be returned to the owner by the United States attorney and to compel obedience to such order by proceedings as for contempt.” §6. Search warrants—Requisites of affidavits for.— Rev. Stats. 3462 authorizing federal judges and commis- sioners to issue search warrants in internal revenue cases does not set forth all the requirements of an affidavit for such search warrant, and an affidavit which fails to set forth facts showing probable cause is fatally de- fective.™ It is the common practice to file a verified petition for searches and seizures, upon which a bench warrant issues from the clerk’s office, after direction by the judge.’? 9—Weeks v. U. S., 232 U. 8. 383; Wise v. Mills, 189 Fed. 583. See 58 L. Ed. 652. See also U. 8S. v. also U. S. v. Wilson, 163 Fed. 338. McHie, 194 Fed. 894, and Sec. 272 11—Ripper v. U. S., 178 Fed. 24. infra. 12—U. S. v. McHie, 194 Fed. 894. 10—U. 8. v. Mills, 185 Fed. 318. CHAPER III * ARREST, BAIL AND REMOVAL OF OFFENDERS 7. Arrest and Removal of Federal Offenders. ‘7a. Prisoners to be Taken Before Nearest Judicial Officer. 8. Warrants of Arrest, Requisites of. 9. Affidavits for Warrants of Arrest, Requisites of. Necessity for Warrant of Arrest. Tilegal Arrest Not Defense on Trial. Protection of Prisoner in Custody. Reward for Arrest. Exemption from Arrest. Excessive Bail Not to be Required. Decisions Regarding Excessive Bail. Bail in Non-Capital Cases. Bail in Capital Cases. Power to Take Bail. § 20. Bail in Appellate Court. § 21. Surrender of Principal by Sureties. § 22. Decisions Regarding Surrender of Principal by Sureties. § 23. Forfeiture of Bail Not. Dependent on Indictment. § 24. Notice to Sureties. §25. Remission of Penalty of Forfeiture. § 26. Time for Application for Remission. § 27. Removal of Offenders. § 28. Sufficiency of Complaint. § 29. Preliminary Examination. § 30. Evidence at the Hearing. § 31. Defenses at the Hearing. § 31a. No Restriction as to Number of Proceedings. § 32. Committing Magistrate’s Decision. § 33. Order of the Court. § 34. Warrant of Removal. a DON AMN RH ES ¢ fe fk pk \ ARREST, BAIL AND REMOVAL § 7. Offenders against the United States, how arrested and removed for trial.—Sec. 1014, Rev. Stats. ‘‘For any 5 6 FEDERAL CRIMINAL PROCEDURE [$7 crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where he may be found, and agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speed- ily as may be into the clerk’s office of such court, together with the recognizances of the witnesses for their appear- ance to testify in the case. And where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is impris- oned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had.’’ 2 Fed. Stats. Anno. 321. § 7a. Marshal to take prisoner before nearest judicial officer—Sundry Civil Appropriation Act of Aug. 18, 1894. ‘‘That it shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest ° circuit court commissioner, or the nearest judicial officer having jurisdiction under existing laws for a hearing, commitment or taking bail for trial, and the officer or magistrate issuing the warrant shall attach thereto a cer- tified copy of the complaint, and upon the arrest of the accused, the return of the warrant, with a copy of the complaint attached, shall confer jurisdiction upon such officer as fully as if the complaint had originally been made before him, and no mileage shall be allowed any § 9] ARREST, BAIL AND REMOVAL 7 officer violating the provisions hereof.’’ 2 Fed. Stats. Anno. 334, §8. Warrants of arrest—Requisites of—In United States practice following the common law, the warrant of arrest must specifically, describe or name the person to be arrested; otherwise the warrant will not justify the officer in making the arrest (see Fourth Amendment to the United States Constitution). The private intention of the magistrate as to the identity of the person against whom the warrant is issued is not a sufficient substitute for a proper description of such person in the warrant as required by the Constitution. The arrest of a person not named in the warrant subjects the arresting officer to liability on his official bond. Surname and Christian name are sufficient, without middle name or initial.” The warrant of arrest need only describe the offense in general terms.? At common law a warrant was not invalid for lack of a seal unless the issuing magistrate had a seal or unless a seal was required by statute, so that the warrant of a United States commissioner who had no seal was not void for such omission.® . One cannot be legally arrested on a warrant illegal on its face.* § 9. Affidavit for warrant—Requisites of.—An infor- mation made only on the information and belief of the United States attorney is not sufficient basis for the issuance of a warrant of arrest, and such information 1—West v. Cabell, 153 U. 8. 78; 3—Starr v. U. S., 153 U.S, 614; 38 L. Ed. 643. 38 L. Ed.,841. la—O’Halloran v. MeGuirk, 167 4—Ex parte Burford, 3 Cranch. Fed. 493. 448, 2—U. S. v. Green, 136 Fed. 618. 8 FEDERAL CRIMINAL PROCEDURE [§9 should be supported by proper affidavits or by a certificate of evidence, under oath, before some competent officer.® §10. Necessity for warrant of arrest——No person, either citizen or officer, can arrest without a warrant for a misdemeanor which was not committed in his presence.® Nor can an offender against military law punishable exclusively by court martial be arrested by a civil peace officer or private person without a warrant.’ Nor can arrest be made in a civil case generally without warrant.” However, after conviction a certified copy of the record of the sentence to imprisonment is sufficient to authorize the detention of the person without any warrant or mitti- mus.® And the rule of the common law that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several states to be in force in eases of felony punishable by civil tribunals.® In such case the one arresting should have such information as would justify reasonably a belief that the person sought had committed a felony. ‘The officer should exhibit his warrant in making the arrest when requested to do so.?° Where an arrest is illegal for lack of a valid warrant, or other cause, sufficient resistance may be used to pre- vent the arrest." For discussion as to the rule when the 5—U. S. v. Baumert, 179 Fed. 487; 29 L. Ed. 458. Pritchett v. 735. Sullivan, 182 Fed. 480. 6—Bad Elk v. U. 8., 177 U. S. 9a—Chandler v. Rutherford, 101 530; 44 L. Ed. 874. Fed. 774. 7—Kurtz v. Moffitt, 115 U. 8. 10—O’Halloran v. McGuirk, 167 487; 29 L. Ed. 458, Fed. 493. See also Starr v. U. S., 7a—Park v. Taylor, 118 Fed. 34, 153 U. 8. 614; 38 L. Ed. 841. 8—Ex parte Wilson, 114 U. 8. 11—West v. Cabell, 153 U. S. 78; 417; 29 L. Ed. 89. 38 L. Ed. 643. Bad Elk v. U. S., 9—Kurtz v. Moffitt, 115 U. 8S. 177 U.S. 530; 44 L. Rd. 874,. § 16] ARREST, BAIL AND REMOVAL 9 person sought is ignorant of the official powers of the party seeking to arrest, see.!? § 11. Illegal arrest no defense on trial The fact that accused was illegally arrested does not deprive the court of jurisdiction to try him." § 12. Protection of prisoner.—A citizen of the United States in custody of a United States marshal under lawful commitment to answer for an offense against the United States, has the right to be protected by the United SIALOs against lawless violence.'* § 13. Reward for arrest.—Reward for arrest is not con- trary to public policy.® § 14. Exemption from arrest.—The privilege from arrest belonging to certain officers of the government in civil proceedings, does not extend to criminal prosecu- tions, and the interference with federal business caused by such arrest does not create a liability against the officers making the arrest.1® And such exemption does not prevent the sentencing to imprisonment and fine in a criminal case of a govern- ment official during his term of office.1” § 15. Excessive bail not to be required.—Amendment VIII, United States Constitution. ‘‘Excessive bail shall not be required, . . > ’%. 9 Fed. Stats. Anno. 352. § 16. Decisions regarding excessive bail—tThe discre- tion of the magistrate in taking bail is to be guided by 12—Starr v. U. S., 153 U. 8. 614; 15—U. 8. v. Matthews, 173 U. 8. 38 L. Ed. 841. 381; 43 L. Ed. 738. 13—Ex parte Johnson, 167 U. 8. 16—U. S. v. Kirby, 7 Wall. 482; 120; 42 L. Ed. 103. Ker v. Illinois, 19 L. Ed. 278. Williamson v. U. &., 119 U. S. 436; 30 L. Ed. 421. 207 U. 8. 425; 52 L. Ea. B78. 14—Logan v. U. S., 144 U. 8S. 17—Williamson v. U. 8! 207 U.S. 263; 36 L. Ed. 429. 425; 52 L. Ed. 278. 10 FEDERAL CRIMINAL PROCEDURE [§ 16 the compound consideration of the ability of the prisoner to give bail and the enormity of the offense.18 A petition for habeas corpus alleging the requiring of excessive bail will be dismissed when petitioner gives such bail before the decision in habeas corpus.?® § 17. Bail admitted in non-capital cases—Sec. 1015, Rev. Stats. ‘‘Bail shall be admitted upon all arrests in criminal cases where the offense is not punishable by death; and in such cases it may be taken by any of the -persons authorized by the preceding section (Rev. Stats. 1014) to arrest and imprison offenders.’’ 1 Fed. Stats. Anno. 521. § 18. Bail in capital cases—Sec. 1016, Rev. Stats. ‘‘Bail may be admitted upon all arrests in criminal cases where the punishment may be death; but in such cases it shall be taken only by the Supreme Court or a circuit court, or by a justice of the Supreme Court, a circuit judge, or a judge of a district court, who shall exercise their discretion therein, having regard to the nature and circumstance of the offense, and of the evidence, and to the usages of law.’’ 1 Fed. Stats. Anno. 522. § 19. Power to take bail—Courts have inherent power to take recognizances, but clerks possess such power only by statute.” However, it has been held that sureties signing a bail bond need not appear personally before the court but may sign before the clerk, and that it is only in case of recognizances taken in open court that the personal appearance of the sureties is necessary in court.” Under Rev. Stats. 1014, United States commissioners 18—U. 8. v. Lawrence, 26 Fed. 20—U. 8S. v. Evans, 2 Fed. 147. Cas. 15577. U. 8S. v. Brawner, 7 21—Hunt v. U. S., 63 Fed. 568. Fed. 86. ; 19—Johnson v. Hoy, 227 U. 8. 445; 57 L. Ed. 497. - § 20] ARREST, BAIL AND REMOVAL 11 have the same power ‘to take bail after as before an indictment.? The practice of United States commissioners in taking bail for appearance of defendant for trial before a proper court should follow the state practice and the bond need set forth the offense in general terms only.2# Under Rev. Stats. 1015 bail may be taken at any stage of the proceedings, before or after hearing, indictment or conviction and pending appeal.?4 During trial, the court has a discretion to disregard the fact that defendant has given bail for his appearance, and may order him into custody if such action seems necessary to insure his appearance at the trial.” § 20. Bail in appellate courts——When a case is pending on writ of error in the Supreme Court, it may order the prisoner released on bail in the lower court and enforce obedience to’such order by mandamus.¢ Due process of law, however, does not require admis- sion to bail pending appeal.?” . The Circuit Court of Appeals cannot mandamus a lower court on the question of bail when the case is still unde- termined in the lower court and not properly brought within the jurisdiction of the appellate court.?8 It is generally the duty of the Circuit Court of Appeals to admit to bail after conviction of a non-capital offense pending writ of error, and this is so despite a refusal of the trial court to admit to bail, but such bail should be only for a period sufficient to allow defendant to file a transcript of record in the Circuit Court ot Appeals and 22—Hoeffner v. U. 8., 87 Fed. 27—MceKane v. Durston, 153 U. 1005. S. 684; 38 L. Ed. 867. 23—U. S. v. Dunbar, 83 Fed. 151. 28—U. 8. v. Judges of the Cir- 24—U. 8S. v. Louis, 149 Fed. 277. cuit Court of Appeals for the Indian 25—U. 8. v. Rice, 192 Fed. 720. Territory, 85 Fed. 177. 26—Hudson v. Parker, 156 U. S. 277; 39 L. Ed, 424. 12 FEDERAL CRIMINAL PROCEDURE [§ 20 then further consideration should be given the matter of bail.?9 In one case the Circuit Court of Appeals held that after affirmance of judgment of conviction, proceedings in error are at an end, and the appellate court has no power to continue defendant’s bail or allow him to go on new bail, pending application to the Supreme Court for writ of certiorari, but the Circuit Court of Appeals for good cause shown may defer the beginning of defendant’s sentence for a reasonable time.®° In another case the Circuit Court of Appeals though refusing bail to defendant after verdict, allowed him cer- tain privileges in the custody of a marshal.*! Rev. Stats. 766 prohibiting further proceedings in a state court pending appeal proceedings in the United States Supreme Court does not require that the state court admit defendant to bail pending such appeal.®2 After conviction an appearance or bail bond is neces- sary to entitle accused to go at large pending writ of error.38 § 21. Surrender of principals by their bail.—Sec. 1018, Rev. Stats. ‘‘Any party charged with a criminal offense and admitted to bail, may, in vacation, be arrested by his bail, and delivered to the marshal or his deputy, before any judge or other officer having power to commit for such offense; and at the request of such bail, the judge ‘or other officer shall recommit the party so arrested to the custody of the marshal, and indorse on the recog- nizance, or certified copy thereof, the discharge and exoneratur of such bail; and the party so committed shall therefrom be held in custody until discharged by due course of law.’’ 1 Fed. Stats. Anno. 522. 29—McKnight v. U. S., 113 Fed. 32—McKane v. Durston, 153 U. 451, 8. 684; 38 L. Ed. 867. 30—Walsh v. U. 8., 177 Fed. 208. 33—Hardesty v. U. S., 184 Fed. 31—Morse v. U. 8., 168 Fed. 49. 269. § 25] ARREST, BAIL AND REMOVAL 13 § 22. Decisions regarding surrender of principals by sureties.—The principal is considered as in his surety’s constant custody and the latter may, at any time, arrest him and deliver him up to the custody of the law.®4 It seems that if the sureties cannot at once deliver the principal up they may imprison him until delivery can be made,®* but this power of sureties to arrest the prin- cipal can only be exercised in the territory of the United States.** § 23. Forfeiture not dependent on indictment.—The purpose of bail is to secure the attendance of defendant, and therefore forfeiture of a bail bond is in no sense a , satisfaction of the offense charged in the indictment.*” So the fact that an indictment is defective is no defense to scire facias on the recognizance given under such indictment.*® § 24. Notice to sureties of trial proceedings.—The set- ting of the case for trial in regular manner, is sufficient notice to the sureties to produce defendant there.* § 25. Remission of penalty of forfeiture——Sec. 1020, Rev. Stats. ‘‘When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced.’’ 1 Fed. Stats. Anno. 523. 34—Cosgrove v. Winney, 174 U. 87—Ex parte Milburn, 36 U. 8. 8. 64; 43 L. Ed. 897. (9 Pet.) 704; 9 L. Ed. 280. 35—Taylor v. Taintor, 83 U. S. 38—U. S. v. Evans, 2 Fed. 147. (16 Wall.) 366; 21 L. Ed. 287. U.S. v. Du Faur, 187 Fed. 812. 36—Reese v. U. S., 76 U.S. (9 89—U. 8. v. Dunbar, 83 Fed. 151. Wall.) 13; 19 L. Ed. 541. i 14 FEDERAL CRIMINAL PROCEDURE [§ 26 § 26. Time for application for remission.—An applica- tion for the remission of a forfeited recognizance under Rev. Stats. 1020 may be made and granted after the term at which the judgment was rendered,‘ as it was clearly the intention of Congress that the court should have the power to act whenever it was made to appear that an applicant under the statute had brought himself clearly within the law.*1 § 26a. Nature of the right.—Rev. Stats. 1020 confers no absolute right of remission on the bondsmen, but such remission is discretionary with the court.*2 When, after forfeiture the principal has been arrested, convicted and sentenced, the penalty should be remitted, except enough thereof to satisfy costs of the scire facias proceeding, and those accruing in the criminal case.*? But where a surety allowed a judgment of wilful default to be entered against him without appearance or contest, it was held that his action subsequently in delivering up the principal did not entitle him to a remission as the finding of wilful default in the score facias proceeding was conclusive.** § 27. Removal—In general.—aA person found in one dis- trict and wanted for trial in another district may be arrested (a) where an indictment has been found against him in the other district; (b) where after examination he has been held by a committing magistrate in the other district to stand trial; (c) where a bench warrant has: been issued for his arrest by a federal court of another district; (d) where a verified complaint has been made before a judge or committing magistrate in such other district against him; (e) where such verified complaint 40—U. S. v. Jenkins, 176 Fed. 43—U. 8. v. Traynor, 173 Fed. 672. Hunter v. U. S., 195 Fed. 253. 114. U. 8. v. Traynor, 173 Fed. 114. 44—U, 8S. v. Robinson, 158 Fed. 41—Hunter v. U.S., 195 Fed. 253. 410, 42—U. 8. v. Jenkins, 176 Fed. 672. § 28] ARREST, BAIL AND REMOVAL 15 is made before such officer in the district where accused is found.*® Although an indictment is often the basis for removal proceedings its existence is not a condition precedent to removal proceedings under Rev. Stats. 1014.*° In addition to the offenses denounced specifically by federal statutes, it has been held that contempt of court is an offense under Rev. Stats. 1014 for which the offender can be arrested, imprisoned and bailed.‘” Rev. Stats. 1014 relates to preliminary examinations only and has no application to prosecutions by informa- tion filed in a court having jurisdiction to proceed to final judgment.*® The effect of Rev. Stats. 1014 is to assimilate all pro- ceedings for holding accused persons to answer before a federal court, to proceedings had for similar purposes by laws of the state where the proceedings take place.*® _ § 28. Sufficiency of complaint.—An affidavit made on information and belief is sufficient in removal proceedings where the source of such information and belief is fully _and clearly set forth and is apparently amply sufficient to warrant such information and belief.5° However, a complaint on information and belief in which no grounds and sources of information are stated and only certain grounds of belief not appearing to be based on deponent’s personal knowledge, is insufficient to authorize the issuing of a warrant of arrest under Rev. Stats. 1014.51 But it has been held that a complaint made by a dis- 45—U. S. v. Yarborough, 122 49—U. S. v. Ruroede, 220 Fed. Fed. 293. 210. U.S. v. Greene, 100 Fed. 941. 46—Greene v. Henkel, 183 U. S. 50—Beavers v. Henkel, 194 U. 8S. 249; 46 L. Ed. 177. 73; 48 L. Ed. 882. 47—Castner v. Pocahontas Col- 51—U. 8S. v. Sapinkow, 90 Fed. lieries Co., 117 Fed. 184. : 654. U. 8. v. Collins, 79 Fed. 65. 48—U. 8. v. Baumert, 179 Fed. 735. 16 FEDERAL CRIMINAL PROCEDURE [§ 28 ic ail? trict attorney is not itisufficient because made on informa- tion and belief alone without reference to an indictment or a statement of the means of information or grounds of belief.>? The invalidity of one count in a complaint does not affect other good counts therein.®* § 29. Preliminary examination.—The statute has been construed to require a preliminary examination to estab- lish the identity of the prisoner and his probable guilt before removal is ordered,®* and an order for removal should not be made on an ex parte hearing.® The examination should be held in accordance with the practice of the state where the arrest is made.** - Though numerous officers are given authority by Rev. Stats. 1014 to hold the preliminary hearing of one arrested for removal, he should be taken before the near- est United States commissioner.®? See Sec. 7a supra. Proceedings under Rev. Stats. 1014 may be transferred by one commissioner to another in the same district.5® The defendant may waive examination. By so doing he waives his right to have evidence produced in support of the charge and to object to informalities in the warrant or complaint, but does not deprive himself of the right to attack process which does not on its face state the facts constituting the crime charged.*® § 30. Evidence on the hearing.—It has been held that a commissioner in removal proceedings need not require evidence of probable cause if accused has been previously indicted in the district in which he is wanted or has had 52—In re Richter, 100 Fed. 295; Fed. 293. See also Pettit v. Walshe, see, however, Sec. 113 infra. 194 U. 8. 205; 48 L. Ed. 938. 58—Rice v. Ames, 180 U. S. 371; 58—In re Wahll, 42 Fed. 822. See 45 L. Ed. 577. also ex parte Bollman, 8 U. S. (4 64—In re Burkhardt, 33 Fed. 25. Cranch.) 75; 2 L. Ed. 554. 55—In re Beshears, 79 Fed. 70. 59—U. S. v. Ruroede, 220 Fed. 56—In re Price, 83 Fed. 830. 210. 57—U. 8. v. Yarborough, 122 § 30] ARREST, BAIL AND REMOVAL 17 _ @ previous preliminary examination there, or if a bench warrant has been issued for him based upon affidavits or other proof, but where there has been merely a com- plaint made against him before a committing magistrate, he is entitled on offering evidence which overcomes the prima facie case made by the verified complaint to have the government required to furnish further evidence.® The usual rule is that the indictment is prima facie evidence of probable cause but is not conclusive and addi- tional evidence may be required in the court’s discre- tion.6t The defendant may overcome the presumptions raised by the indictment by submitting proper evidence in contradiction of its allegations.°2 The fact that defendant is under bond to appear on prior indictment does not prevent the removal order from being issued,®* nor is the prima facie case made by one indictment overcome by the fact that another indictment on the same charge has been returned in another dis- trict.®4 ; There can be no order of removal on an indictment which does not charge facts constituting an offense, even though such removal is not resisted by or is in fact agree- able to defendant. However, technical objections to the indictment cannot be considered in removal proceed- ings,** and such defects in the indictment are considered cured by evidence of probable cause, which remedies such defects.°7 The rule has been stated to be that the insuffi- ciency or inaccuracy of the indictment as to matters of 60—U. 8. v. Yarborough, 122 64—Haas v: Henkel, 216 U. 8. Fed. 293. 462; 54 L. Ed. 569. 61—Beavers v. Henkel, 194 U. 8. 65—U. 8S. v. Conners, 111 Fed. 73; 48 L. Ed. 882. In re Richter, 734. 100 Fed. 295. In re Wood, 95 Fed. 66—Beavers v. Henkel, 194 U. 8. 288. 73; 48 L. Ed. 882. 62—U. S. v. Campbell, 179 Fed. 67—Greene v. Henkel, 183 U. 8. 762. , 249; 46 L. Bd. 177. 63—Peckham v. Henkel, 216 U. 8. 483; 54 L. Ed. 507. 18 FEDERAL CRIMINAL PROCEDURE [§ 30 form does not render removal erroneous for such ques- tions should be left to the trial court.6* And in removal proceedings, a properly certified copy of an indictment, valid on its face and purporting to have been legally found by a grand jury in a United States court, is not open to attack for alleged irregularity in drawing and organizing such grand jury.*® However, when committed for removal solely on the strength of an indictment, and without other evidence of guilt, defendant may have the indictment tested by habeas corpus, and should be released if the indictment is essentially and fundamen- tally defective,’° and so if the indictment shows that the court where it is pending has no jurisdiction of the alleged offense, the defendant should be discharged.”! §31. Defenses on the hearing.—The defendant has a right to testify and give evidence tending to show that no crime was committed in the district to which removal is sought 7? but matters of substantive defense should be raised ordinarily on the trial after removal and alleged errors with respect thereto are not reviewable on habeas corpus against the order of removal,”? for instance, inquiry into the sanity of a defendant who is alleged to have become insane since the commission of the offense is not proper on the hearing before the committing magis- trate.” The sufficiency of the evidence before a grand jury which returned an indictment upon which removal is sought is not a matter in issue on removal proceed- ings.”® § 31a. No restriction as to number of proceedings.—A person indicted in two different districts has not the right 68—Price v. McCarty, 89 Fed. 84. 73—Haas v. Henkel, 216-U. S. 69—Greene v. Henkel, 183 U. S. 462; 54 L. Ed. 569. 249; 46 L. Ed. 177. 74—-Ex parte Charlton, 185 Fed. 70—Stewart v. U. S., 119 Fed. 89. 880. 71—-U. 8S. v. Lee, 84 Fed. 626. 75—Beavers v. Henkel, 194 U. S. 72—Tinsley v. Treat, 205 U. S. 73; 48 L. Ed. 882. 20; 51 L. Ed. 689. § 33] ARREST, BAIL AND REMOVAL 19 to choose to which he should be removed first 7* and the government may, after securing custody and arraignment of accused in one district by means of removal, prosecute a second proceeding to remove him to another district where he is charged with crime.” Likewise, the showing at the hearing of acts which might have been prosecuted in the district where the proceedings are had does not defeat the right of removal to another district in which also criminal proceedings are proper.”® § 32. The committing magistrate’s decision—It has ‘been held that the commissioner holding the preliminary examination for removal should transmit to the judge a statement of the proceedings before him, setting forth the evidence heard, the papers considered and the decision of the commissioner 7° and a final writ of commitment is necessary reciting the fact of preliminary examination, existence of probable cause and that the person is com- mitted in default of bail to await trial.® The commissioner’s decision refusing removal is not res adjudicata, but ordinarily should be respected on the same facts.®! An order of discharge by a magistrate does not prevent grand jury action any more than does a preliminary find- ing by one of the departments of the government.*? And an indictment may be found and presented by a grand jury without a preliminary complaint or prior arrest.83 § 33. The order of the court.—A person arrested for removal should be given seasonable notice of the time and 76—Haas v. Henkel, 216 U. 8. 81—U. 8S. v. Haas, 167 Fed. 211. 462; 54 L, Ed. 569. 82—U. 8. v. Morgan, 222 U. 8. 77—In re Beavers, 131 Fed. 366. 274; 56 L. Ed. 198. Whitten v. 78—U. S. v. Wimsatt, 161 Fed. Tomlinson, 160 U. S. 231; 40 L. Ed. 586. 406. 79—U. 8S. v. Yarborough, 122 83—U. S. v. Baumert, 179 Fed. Fed, 293. 735. 80—Erwin v. U. S., 37 Fed. 470. Byrne’s Crim. Proc.—4 20 . FEDERAL CRIMINAL PROCEDURE [§ 33 place when an application will be made for a warrant of | removal and notified of his right’ to be present before the judge and to resist the application, and with the papers laid before the judge should be a return by the marshal showing when and how the notice was given.® While the action of the committing magistrate is prima facie sufficient basis for the warrant, the judge may in the exercise of his judicial discretion order further evi- dence on behalf of the prisoner, and also on behalf of the prosecution.®®. Contra, the judge has no power to review, annul or set aside the determination of the com- missioner other than to see that the face of the commit- ment recites a legal proceeding and determination.*®¢ In granting an order of removal, the judge acts judi- cially, not ministerially.8? Where on conflicting evidence the commissioner has found the proof to be sufficient as to identity and crim- inality of the defendant the court should treat his decision like the verdict of a jury and should not re-examine the evidence but should issue the warrant of removal.®®§ On the other hand, proof that a complete defense exists, such as that the statute of limitations has run, should cause the discharge of the defendant.®® § 34. The warrant of removal.—A warrant of removal is not invalidated by reason of the fact that it charges a less serious degree of the crime named in the complaint.” 84—U. 8. v. Yarborough, 122 Tinsley v. Treat, 205 U. S. 20; 51 Fed. 293. L. Ed. 689. 85—Price v. McCarty, 89 Fed. 84. 88—U. S. v. Lantry, 30 Fed. 232. 86—U. S. v. Peckham, 160 Fed. 89—U. 8. v. Black, 160 Fed. 431. 431. 90—Price v. McCarty, 89 Fed. 84. 87—Price v. McCarty, 89 Fed. 84. § 35. § 36. § 37. § 38. § 39. § 40. § 41. § 42, § 43. § 44. § 45. § 46. § 47. 8 48. § 48a. § 49. § 50. § 51. § 52. § 53. § 54. § 55. § 56. CHAPTER IV , INTERNATIONAL EXTRADITION Extradition of Fugitives from Foreign Country. Law Governing International Extradition. For What Offenses Extradition Granted. Negotiations for Extradition. The Complaint. The Warrant. Extradition Hearings to be Public. Extradition Commissioner’s Powers. Evidence and Probable Cause. Request by Foreign Government. Defenses. Trial Must Be for Same Offense. Appeal and Habeas Corpus. Authenticated Copies of Foreign Depositions Admissible in Evidence. Authenticated Copies of Foreign Papers Admissible in Evidence. / Decisions Regarding Authentication of Documents. Witnesses for Indigent Defendant at Government Ex- pense. Surrender and Removal of Fugitive. Two Months Allowed for Removal of Fugitive. Detention of Prisoner, and Bail. Extradition Dependent on Treaty. _ Protection of Prisoner Received from Foreign Govern- ment. Powers of Agent Receiving Prisoner from Foreign Gov- ernment. § 35. Extradition of fugitives from foreign country.— Sec. 5270, Rev. Stats. ‘‘Whenever there is a treaty or convention for extradition between the government of the United States and any foreign government, any jus- 21 22 FEDERAL CRIMINAL PROCEDURE [§ 35 tice of the Supreme Court, circuit judge, district judge, commissioner, authorized so to do by any of the courts of the United States, or judge of a court of record of general jurisdiction of any state, may, upon complaint made under oath, charging any person found within the limits of any state, district, or territory, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apptehension of the person so charged, that he may be brought before such justice, judge or commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sus- tain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secre- tary of State, that a warrant may issue upon the requisi- tion of the proper authorities of such foreign government, for the surrender of such person, according to the stipu- lations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made. Provided, That whenever any foreign country or territory, or any part thereof, is occupied by or under the control of the United States, any person who shall violate, or who has violated, the criminal laws in force therein, by the commission of any of the following offenses, namely: Murder and assault with intent to com- mit murder; counterfeiting or altering money, or uttering or bringing into circulation counterfeit or altered money; counterfeiting certificates or coupons of public indebted- ness, bank notes, or other instruments of public credit, and the utterance or circulation of the same; forgery or altering, and uttering what is forged or altered; embez- zlement or criminal malversation of the public funds, committed by public officers, employees, or depositaries; larceny or embezzlement of an amount not less than one § 35] INTERNATIONAL EXTRADITION 23 hundred dollars in value; robbery; burglary, defined to be the breaking and entering by nighttime into the house of another person with intent to commit a felony therein; and the act of breaking and entering the house or building of another, whether in the day or night time, with the intent to commit a felony therein; the act of entering, or of breaking and entering the offices of the Government and public authorities, or the offices of banks, banking houses, savings banks, trust companies, insurance or other companies, with the intent to commit a felony thereon; perjury or the subornation of perjury; rape; arson; piracy by the law of nations; murder, assault with intent to kill, and manslaughter, committed on the high seas, on board a ship owned by or in control of citizens or residents of such foreign country or territory and not under the flag of the United States, or of some other government; mali- cious destruction of or attempt to destroy railways, trams, vessels, bridges, dwellings, public edifices, or other buildings, when the act endangers human life, and who shall depart or flee, or who has departed or fled, from justice therein to the United States, any territory thereof or to the District of Columbia, shall, when found therein, be liable to arrest and detention by the authorities of the United States, and on the written request or requisi- tion of the military governor or other chief executive officer in control of such foreign country or territory shall be returned and surrendered as hereinafter provided to such authorities for trial under the laws in force in the place where such offense was committed. All the provisions of sections fifty-two hundred and seventy to fifty-two hundred and séventy-seven of this title, so far as applicable, shall govern proceedings authorized by this proviso: Provided further, That such proceedings shall be had before a judge of the courts of the United States only, who shall hold such person on evidence estab- lishing probable cause that he is guilty of the offense charged: And provided further, That no return or sur- 24 FEDERAL CRIMINAL PROCEDURE [§ 35 render shall be made of any person charged with the commission of any offense of a political nature. If so held such person shall be returned and surrendered to the authorities in control of such foreign country or territory on the order of the Secretary of, State of the. United States, and such authorities shall secure to such a person a fair and impartial trial.’’ 3 Fed. Stats. Anno. 68. §36. The law governing international extradition — The laws of the United States govern extradition cases between the United States and foreign countries, not those of the particular state in which the case occurs.! § 37. For what offenses.—Extradition ordinarily lies only for an offense punishable both in the country of asylum and that making the request.? Section 5270 Rev. Stats. applies to offenses against state laws as well as those enacted by Congress.? As to offenses not covered by treaty, the countries con- cerned have discretion as to the surrender of accused ‘persons, and where such persons have actually been extradited for such offense, they are triable in the courts of the country to which they are returned on such , charges, and the decision of the country of asylum that the offense charged is within thé terms of a treaty is conclusive against the prisoner and cannot be reviewed after extradition has been accomplished.* § 38. Negotiations——In the absence of treaty provi- sions, the matter of foreign extradition rests_on the comity of nations. Foreign extradition even for a crime against a state must be negotiated with the foreign nation by the United States and not by the state.® 1—Rice v. Ames, 180 U. 8. 371; 3—Wright v. Henkel, supra. 45 L. Ed. 577. 4—Greene v. U. S., 154 Fed. 401. 2—Wright v. Henkel, 190 U. 8. 5—U. S. v. Rauscher, 119 U. 8. 40; 47 L. Ed. 948, 407; 30 L, Ed. 425. § 39] INTERNATIONAL EXTRADITION 25 § 39. The complaint.—The complaint is sufficient if it thoroughly apprises. defendant of the crime with which he is charged,® and if the offense is one under the treaty the fact that the complaint and the treaty describe it by different technical names is of no importance.” The complaint may be sworn to before any officer authorized generally to take affidavits.® ; If certified copies of the foreign complaint and war- rant are not attached to the local complaint, they may be produced and shown at the local hearing a this will be sufficient.® The complaint need set forth only the sibs itaiis of the offense so that the court can see that the crime is one enumerated in the treaty.1° And the complaint need not be as certain and definite as an indictment but should be tested by the rules which apply to complaints before magistrates of the locality where accused is found.'! A complaint may be made upon information and belief provided the source of such information and the grounds of such belief be sufficiently stated, and a properly certi- fied copy of the indictment or similar charge, or a copy of the depositions of witnesses having actual knowledge of the facts be annexed to the complaint.’2 And a com- plaint on information and belief is sufficient where it is supported at any time during the hearing by a record showing the testimony of witnesses given under oath which is sufficient to justify the detention of the accused.78 6—Grin v. Shine, 187 U. S, 181; 47 L. Ed. 130. 7—Powell v. U. 8., 206 Fed. 40. 8—Grin v. Shine, 187 U. 8. 181; 47 L, Hd. 130. 9—Powell v. U. S., 206 Fed. 400. 10—In re Roth, 15 Fed. 506. 11—In re Herskovitz,'136 Fed. 718. Ex parte Zentner, 188 Fed. 344, 12—Rice v. Ames, 180 U. S. 371; 45 L. Ed. 577. Ex parte Lane, 6 , Fed. 34. 18—Yordi v. Nolte, 215 U. 8. 227; 54 L. Ed. 170. Glucksman v. Henkel, 221 U. S. 508; 55 L. Ed. 830. 26 FEDERAL CRIMINAL PROCEDURE [§ 39 The insufficiency of one count of the complaint does not affect the sufficiency of other counts therein.’* A variance between the complaint and the evidence in extradition proceedings usually is not material unless actually prejudicial.1® § 40. The warrant.—Under Rev. Stats. 5270, if the first warrant of arrest is of questionable regularity, the dis- trict Judge has power under a new complaint to issue a new warrant which is not invalidated by the existence of the prior warrant.1¢ The commissioner’s warrant should show that he has been duly authorized by the extradition laws to issue it.27 The warrant is sufficient if it describes the offense in the words of the treaty.18 The issuing of an executive mandate is not, unless required by treaty, a prerequisite to extradition proceed- ings and the issuance of a warrant of arrest if it suffi- ciently appears that the complaining witness is acting for the foreign government.'® § 41. Extradition hearings to be public.—Sec. 1, Act of Aug. 3, 1882. ‘‘That all hearings in cases of extradi- tion under treaty stipulation or convention shall be held on land, publicly, and in a room or office easily accessible to the public.’’ 3 Fed. Stats. Anno. 89. § 42. Extradition commissioner’s powers.—The juris- diction of a commissioner to hear evidence is not defeated by the fact that the warrant of arrest was issued by the district judge and not by the commissioner himself.?° 14—Rice v. Ames, 180 U. 8S. 371; 45 L. Ed. 577. 15—Glucksman v. Henkel, 221 U. 8S. 508; 55 L. Ed. 830. Ex parte Zentner, 188 Fed. 344. 16—In re Fergus, Petitioner, 30 Fed. 607. 17—In re Kelley, 25 Fed. 268. Ex parte McCabe, 46 Fed. 363. Ex parte Lane, 6 Fed. 34. 18—Castro v. De Uriarte, 16 Fed. 93. 19—In re Orpen, 86 Fed. 760. In re Herres, 33 Fed. 165. Castro v. De Uriarte, 16 Fed. 93. 20—In re Grin, 112 Fed. 790. § 43] INTERNATIONAL EXTRADITION 27 The accused should be taken before the nearest magis- trate having jurisdiction, in cases where the arrest is made at a considerable distance from the place where the warrant is issued, and must be given a hearing in the state where arrested even though the warrant of arrest was issued in another state.?! The commissioner may exercise a just and reasonable discretion in the matter of adjournment of the proceed- ings.?? a § 43. Evidence and probable cause.—Whether an extra- ditable offense has been committed is a mixed question of law and fact but chiefly of fact.?* Extradition proceedings are like a preliminary exam- ination, and if it appears that a crime has been committed and that there is probable cause to believe the defendant ‘guilty of that crime, he should be put upon trial.2* So the accused should be surrendered if there is presented even in untechnical form such reasonable ground to sup- pose him guilty of crime as to make it proper that he should be tried.”® In extradition proceedings for the purpose of taking a United States citizen to a foreign country for trial, the evidence must be produced that a crime was committed and that there is reasonable ground to believe accused guilty of such crime.*® The questions for decision by the committing magis- trate are whether a certificate from the secretary of 21—Pettit v. Walsh, 194 U. S. 33 Fed. 165. Ex parte Charlton, 205; 48 L. Ed. 938. See Sec. 7a supra. 22—Rice v. Ames, 180 U. 8. 371; 45 L. Hd. 577. In re Wadge, 15 Fed. 864. In re Ludwig, 32 Fed. 774. 23—Ornelas v. Ruiz, 161 U. S. 502; 40 L. Ed. 787. 24—Benson v. McMahon, 127 U. S. 457; 32 L. Ed. 234. In re Herres, 185 Fed. 880. U. 8. v. Piaza, 133 Fed. 998. Ex parte Zentner, 188 Fed. 344. Ex parte Glaser, 176 Fed. 702. In re Urzua, 188 Fed. 540. Elias v. Ramirez, 215 U. S. 398; 54 L. Ed. 253. 25—Glucksman v. Henkel, 221 U. 8. 508; 55 L. Ed. 830. 26—Ex parte La Page, 216 Fed. 256. 28. FEDERAL CRIMINAL PROCEDURE [§ 43 state has been issued showing a request from the foreign government; whether the offense charged against. the accused is extraditable under any treaty; whether the prisoner arrested is the one accused of crime; and whether there is probable cause for holding accused for trial.27 And matters of defense, such as insanity, need not be heard by the magistrate.?® § 44. Request by foreign government.—Under Rev. Stats. 5270 all that is required for extradition is a com- plaint under oath, warrant of arrest and evidence of criminality sufficient under the treaty, and a certificate by the magistrate of such evidence to the secretary of state, and a request by the foreign government is not essential,® so that the initiative of proceedings for the extradition of an alleged criminal need not rest on a demand by a foreign government but may be commenced by the arrest of the person charged under a warrant issued by a United States commissioner on complaint under oath.*° However, it has been held that though the request or authority of the foreign government need not appear at the institution of the proceedings, such request or author- ity should in fact appear at some stage therein,?! and that there must be a satisfactory showing during the course of the proceeding that it is promoted by the for- eign government or carried on by its authority.*? And it has been held that the extradition statute and the treaty under consideration must be construed together 27—Ex parte Charton, 185 Fed. 880. 28—Charlton v. Kelly, 229 U. 8. 447; 57 L. Ed. 1274. 29—Grin v. Shine, 187 U. 8. 181; 47 L. Ed. 130. 30—In re Kaine, 14 How. 103; 14 L. Ed. 345. Benson v. Me- Mahon, 127 U. S. 457; 32 L. Ed. 234. In re Adutt, 55 Fed. 376. Ex parte Zentner, 188 Fed. 344. In re Schlippenbach, 164 Fed. 783. 31—In re Orpen, 86 Fed. 760. In re Adutt, 55 Fed. 376. In re Mineau, 45 Fed. 188. 32—In te Ferrelle, 28 Fed. 878. In re Herres, 33 Fed. 165. In re Grin, 112 Fed. 790. ' § 46] INTERNATIONAL EXTRADITION 29 to determine the requisites of a formal demand for the surrender of a fugitive.®* § 45. Defenses.—A fugitive from justice has no inher- ent right of asylum. His rights depend wholly upon treaty.# And when a foreign country decides that a certain offense is extraditable and surrenders a fugitive under such decision, the United States courts should decline to review that decision.* Citizenship in the country of asylum does not defeat extradition proceedings under a statute which contem- plates extradition of offenders regardless of such citizen- ship.®® : There is not and cannot well be any uniform rule deter- mining how far an examining magistrate should hear the witnesses produced by accused in extradition cases. The ‘proceeding is not a trial. The issue is confined to the single question of whether the evidence for the state makes out a prima facie case of guilt sufficient to make it proper to hold the party for trial.®” § 46. Trial must be for same offense.—The defendant ordinarily cannot be tried for an offense other than that for which he has been extradited ** nor can the defendant be held on a new charge while awaiting trial on the one for which he has been extradited.®® This exemption from arrest and trial for a second offense without time and opportunity given to return, has been held to apply also to arrest in civil cases.*° | 38—Ex parte Charlton, 185 Fed. 880. 34—Collins v. O’Neil, 214 U. 8S. 113; 53 L, Ed. 933. 35—Greene v. U. 8., 154 Fed. 401. 86—Ex parte Charlton, 185 Fed. 880. 87—Charlton v. Kelly, 229 U. 8. 447; 57 L. Ed. 1274. 38—Johnson v. Browne, 205 U. 8. 309; 51 L. Ed. 816. See also U. 8. yv. Rauscher, 119 U. S. 407; 30 L. Ed. 425. Greene v. U. S., 154 Fed. 401. In re Rowe, 77 Fed. 163. 39—Cosgrove v. Winney, 174 U. S. 64; 43 L. Ed. 897. 40—In re Reinitz, 39 Fed. 204. 30 FEDERAL CRIMINAL PROCEDURE [§ 46 The demanding state and commissioner need not elect the charge on which the prisoner shall be tried, so long as he is tried upon the facts which appeared in evidence before the commissioner and upon one or more of the charges for which he is surrendered. The probable form of the indictment to be returned is immaterial as a defense to extradition.*! When after extradition the defendant commits another crime in the jurisdiction to which he has been surren- dered, he may be tried first for either offense that the state chooses.*? It cannot be contended that a person extradited is not being tried for the offense under which his extradition was obtained because a technical defect in such indict- ment is remedied by a second indictment.** Similarity in the names of the crime in the different countries is not necessary provided the same acts are intended in each instance.** A person forcibly brought into the jurisdiction of the trial court without the aid of a treaty having been invoked, may apparently be prosecuted for different offenses without being given an opportunity to return to the country of asylum.*® § 47. Appeal and habeas corpus.—In extradition cases from a foreign country the judge or magistrate acts under special authority conferred by treaties and acts of Con- gress and no right of direct appeal exists.*® It has been held that after the service of a writ of certiorari upon the commissioner, he should not make 41—Ex parte Bryant, 167 U. S. firmed in Ker v. IIl., 119 U. S. 436; 105; 42 L. Ed. 94. 30 L. Ed. 421. 42—Collins v. O’Neil, 214 U. S. 46—10 Opinions of Attorney Gen- 113; 53 L. Ed. 933. eral, 501, citing in re Metzger, 5 43—In re Rowe, 77 Fed. 161. How. 176. U.S. v. Ferreira, 13 44—Greene v. U. S., 154 Fed. 401. How. 40; 14 L. Ed. 42. In re Kaine, 45—Ker v. People, 110 Ill. af- 14 How. 103; 14 L. Ed. 345. § 48a] INTERNATIONAL EXTRADITION 31 additions to or amendments of the complaint or other parts of his record.*” Where the commissioner had jurisdiction of the accused and of the subject matter, his finding of probable cause is open only on habeas corpus to the inquiry whether there was legal evidence or facts on which to exercise his judgment, and not to the sufficiency or insuf- ficiency of the evidence.** § 48. Authenticated copies of foreign depositions ad- missible in evidence.—Sec. 5271, Rev. Stats. ‘‘In every case of complaint, and of a hearing upon the return of the warrant of arrest, copies of the depositions upon which an original warrant in any foreign country may have been granted, certified under the hand of the person issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be received in evidence of the crim- inality of the person so apprehended, if they are authen- ticated in such manner as would entitle them to be received for similar purposes by the tribunals of. the foreign country from which the accused party escaped. The certificate of the principal diplomatic or consular officer of the United States resident in such foreign coun- try shall be proof that any paper or other document so offered is authenticated in the manner required by this section.’’? 3 Fed. Stats. Anno. 76. § 48a. Copies of papers, when admissible in evidence.— Sec. 5, Act of Aug. 3, 1882. ‘‘That in all cases where any depositions, warrants, or other papers or copies thereof 47—Ex parte Lane, 6 Fed. 34. 48—Grin v. Shine, 187 U. 8S. 181; 47 L. Ed. 130. In re Count De Toulouse Lautrec, 102 Fed. 878. Terlinden v. Ames, 184 U. 8S. 270; 46 L. Ed. 534. Ex parte Bryant, 167 U. S. 105; 42 L. Ed. 94. Ornelas v. Ruiz, 161 U. S. 502; 40 L. Ed. 787. Fong Yue Ting v. U. S., 149 U. 8. 698; 37 L. Ed. 905. In re Cortes, 136 U. S. 330; 34 L. Ed. 464. Benson v. McMahon, 127 U. S. 457; 32 L. Ed. 234. Sterna- man v. Peck, 80 Fed. 883. i 32 FEDERAL CRIMINAL PROCEDURE [§ 48a shall be offered in evidence upon the hearing of any extradition case under Title sixty-six of the Revised Statutes of the United States, such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign coun- try from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign coun- try shall be proof that any deposition, warrant or other paper or copies thereof, so offered, are authenticated in the manner required by this act.’’ 3 Fed. Stats. Anno. 90. § 49. Decisions regarding authentication of docu- ments.—Technical objections to the form of documents in extradition cases are not available if such documents are in substantial conformity to the requirements of the stat- ute and give reasonable assurance of authenticity.” Under Rev. Stats. 5271 and its amendment, where the documents are properly authenticated for use in extradi- tion proceedings and would be received in similar pro- ceedings in the demanding country, it has been held that the requirements of the statute have been complied with." The certificate of. the principal diplomatic officer is sufficient if it follows the language of the statute.52 The certificate of the consul when in conformity to the statute is absolute proof that the papers so certified are receivable in the foreign country in proof of criminality, but if the certificate be defective resort may then be had to any other proof competent to show that the documents 49—In re Neely, 103 Fed. 626. 51—Grin v. Shine, 187 U. 8. 181; 50—Grin v. Shine, 187 U. 8.181; 47 L. Ed. 130. 47 L. Ed. 130. In re Wadge, 15 Fed. 864. § 50] INTERNATIONAL EXTRADITION - 33 presented are so authenticated as to entitle them to be received as evidence of criminality in the foreign coun- try,°? and the final certificate of the United States min- ister may supply defects, if any, in the certificates of foreign officials to the same documents." The courts will take judicial notice as to the identity of the principal diplomatic officer in the foreign country.™4 Unsworn statements certified by the proper officers to be authenticated properly and legally so as to be received for similar purposes by the courts of the demanding country, are admissible in evidence in extradition pro- ceedings.»> But it seems that under Section 5 of the Act of Aug. 3, 1882, the prosecution in an extradition case may use depositions but the accused may not.*® § 50. Witnesses for indigent defendant at government expense.—Sec. 3, Act of Aug. 3, 1882. ‘‘That on the hearing of any case under a claim of extradition by any foreign government, upon affidavit being filed by the person charged setting forth that there are witnesses whose evidence is material to his defense, that he cannot safely go to trial without them, what he expects to prove by each of them, and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the judge or commissioner before whom such claim for extradition is heard may order that such wit- nesses be subpoenaed; and in such cases the costs incurred by the process, and the fees of witnesses, shall be paid in the same manner that similar fees are paid in the case of witnesses subpoenaed in behalf of the United States.’’ 3 Fed. Stats. Anno. 89. 52—In re MecPhun, 30 Fed. 57. 55—Elias v. Ramirez, 215 U. 8. In re Wadge, 15 Fed. 864. 398; 54 L. Ed. 253. 53—In re Behrendt, 22 Fed. 699. 56—In re Cortes, 136 U. 8. 330; In re Krojanker, 44 Fed. 482. * 34 L. Ed. 464. 54—In re Herres, 33 Fed. 165. In're Orpen, 86 Fed. 760. 34 FEDERAL CRIMINAL PROCEDURE [§ 51 § 51. Surrender and removal of fugitive Sec. 5272, Rev. Stats. ‘‘It shall be lawful for the Secretary of State, under his hand and seal of office, to order the person so ‘ eommitted to be delivered to such person as shall be authorized, in the name and on behalf of such foreign government, to be tried for the crime of which such per- son shall be so accused, and such person shall be delivered up accordingly; and it shall be lawful for the person so authorized to hold such person in custody, and to take him to the territory of such foreign government, pur- suant to such treaty. If the person so accused shall escape out of any custody to which he shall be committed, or to which he shall be delivered, it shall be lawful to retake such person in the same manner as any person accused of any crime against the laws in force in that part of the United States to which he shall so escape, may be retaken on an escape.’’ 3 Fed. Stats. Anno. 77. § 52. Two months allowed for removal of fugitive — Sec. 5273, Rev. Stats. ‘‘Whenever any person who is committed under this title or any treaty, to remain until delivered up in pursuance of a requisition, is not so deliv- ered up and conveyed out of the United States within two calendar months after such commitment, over and above the time actually required to convey the prisoner from the jail to which he was committed, by the readiest way, out of the United States, it shall be lawful for any judge of the United States, or of any state, upon applica- tion made to him by or on behalf of the person so com- mitted, and upon proof made to him that reasonable notice of the intention to make such application has been given to the Secretary of State, to order the person so committed to be discharged out of custody, unless suf- ficient cause is shown to such judge why such discharge ought not to be ordered.’’ 3 Fed. Stats. Anno. 77. - §53. Detention of prisoner, and bail—Under R. 8. 5273 the fact that an officer of the demanding country is on his § 55] INTERNATIONAL EXTRADITION 35 way to take the prisoner back to such country is not ground for refusing a discharge to a party who has been detained in jail for more than two months when it is shown, that by reasonable diligence such officer might have arrived before the’ application for discharge and when no sufficient reason is shown for the delay.*” There is no statute providing for admission 'to bail in cases of foreign extradition and Sections 5270 and 5273 of the Revised Statutes are inconsistent with the allow- ance of such bail.°® However, it has been held that the United States courts have power independent of statute to admit to bail in a case of foreign extradition pending examination but that such power should be exercised only under the most pressing circumstances.®® § 54. Extradition dependent on existence of treaty.— Sec. 5274, Rev. Stats. ‘‘The provisions of this Title relating to the surrender of persons who have committed crimes in foreign countries shall continue in force during the existence of any treaty of extradition with any foreign government, and no longer.’’? 3 Fed. Stats. Anno. 78. § 55. Protection of fugitive received from foreign government.—Sec. 5275, Rev. Stats. ‘‘Whenever any person is delivered by any foreign ‘government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transporta- tion and safe-keeping of such accused person, and for his security against lawless violence, until the final con- clusion of his trial for the crimes or offenses specified in “the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such 57—In re Dawson, 101 Fed. 253. 59—In re Mitchell, 171 Fed. 289. 58—Wright v. Henkel, 190 U. 8. 40; 47 L. Bd. 948. In re Carrier, 57 Fed. 578. 4 ‘Byrne’s Crim. Proc.—5 36 FEDERAL CRIMINAL PROCEDURE [§ 55 crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe-keeping and protection of the accused.’’ 3 Fed. Stats. Anno. 78. § 56. Powers of agent receiving prisoner from foreign government.—Sec. 5276, Rev. Stats. ‘‘Any person duly appointed as agent to receive, in behalf of the United States, the delivery, by a foreign government, of any person accused of crime committed within the jurisdic- tion of the United States, and to convey him to the place of his trial, shall have all the powers of a marshal of the United States, in the several districts through which it may be necessary for him to pass with such prisoner, so far as such power is requisite for the prisoner’s safe- keeping.’’ 3 Fed. Stats. Anno. 78. CHAPTER V INTERSTATE EXTRADITION §57. Surrender of Fugitives from Justice of a State. § 58. Construction of Constitutional Provisions. § 59. Procedure for Extradition of Fugitives from Justice of States. § 60. Duties of Governors. §61. All Crimes Extraditable. § 62. Fugitive from Justice Defined. § 63. Fugitive from Justice—Proof. § 64. Offenses Against Two States. § 65. Documents Necessary. § 66. Requisites of Indictment or Affidavit. § 67. Defenses. § 68. Trial for Other Than Extradition Offense. § 69. Illegal Arrest and Extradition. § 70. Habeas Corpus—Scope of Inquiry. § 57. Surrender of fugitives from justice of a state.— Article IV, Sec. 2, U.S. Constitution. ‘‘A person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to'be removed to the state having jurisdiction of the crime.’’ 9 Fed. Stats. Anno. 184. § 58. Construction of constitutional provisions.—The constitutional provision is in the nature of a treaty stipu- lation for the purpose of securing a prompt and efficient administration of the criminal laws of the several states; and while a state should protect its people from illegal action, federal courts should not interpret the law so nar- 37 38 FEDERAL CRIMINAL PROCEDURE [§ 58 rowly as to enable those who have offended the laws of one state to find a permanent asylum in another.! It has been held contrary to public policy and de- structive: of national homogeneity to concede to the several states the power to surrender fugitives as a right of sovereignty and that extradition can be granted only in cases falling within the provisions of the federal con- stitution and statutes.? § 59. Procedure for extradition of fugitive from justice of states.—Sec. 5278, Rev. Stats. ‘‘Whenever the execu- tive authority of any State or Territory demands any person. as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the State or Territory making such demand, shall be paid by such State or Ter- ritory.’? 3 Fed. Stats. Anno. 78. _1—Appleyard v. Mass, 203 U. 8S. Hyatt, 172 N. Y. 182; 64 N. E. 825; 222; 51 L. Ed. 161. Hyatt v. Corkran, 188 U. 8. 691; 2—In re Kopel, 148 Fed. 505, 47 L. Ed. 657. citing People ex rel.’ Corkran v. § 61] INTERSTATE EXTRADITION 39 § 60. Duties of governors.—The extradition section of the constitution gives the governor of the state whose laws have been violated the absolute right to demand and impose upon the governor of the asylum state the obligation to deliver up the fugitive when proper demand is made. The party accused should be legally and properly charged with crime in the demanding state and the governor of the asylum state has the right to be satisfied, by competent proof, that the person is so charged. When the acts required by the acts of congress governing extradition are performed, the governor of the asylum state has no discretion to look behind them and the duty he has to perform is merely ministerial.’ The duty devolved upon the governor of the asylum state is a moral one and the national government has no power to use coercive means to force him to fulfill it.* The executive of a territory has the same rights and is subject to the same duties under Rev. Stats. 5278 as the executive of a state.® § 61. All crimes extraditable——The constitutional pro- vision for extradition includes all offenses punishable by the state requesting extradition whether by common law or by statute and whether classified as misdemeanors or as felonies.® A person convicted of crime continues to be charged with such crime until the sentence imposed therefor has been performed.’ . 3—MeNichols v. Pease, 207 U. 8. 100; 52 L. Ed. 121. Appleyard v. Mass., 203 U. 8. 222; 51 L. Ed. 161. 4—Kentucky v. Dennison, 65 U. Taylor v. Taintor, 16 Wall. 366; 21 L. Ed. 8. 66; 16 L. Ed. 717. 287. 5—Ex parte Reggel, 114 U. S. 642; 29 L. Hd. 250. Ex parte Mor- gan, 20 Fed. 298. 6—Lascelles v. Ga., 148 U. S. 537; 37 L. Ed. 549. Ex parte Reggel, 114 U. 8. 642; 29 L, Ed. 250. Ken- tucky v. Dennison, 65 U. 8S. (24 How.) 66; 16 L. Ed. 717. Taylor yv. Taintor, 16 Wall, 366; 21 L. Ed. 287. 7—Hughes v. Pflanz, 138 Fed. 980. ' 40 FEDERAL CRIMINAL PROCEDURE [§ 62 § 62. Fugitive from justice defined.—One charged with crime who was in the place where, and at the time when, the offense was committed and thereafter leaves the state no matter for what reason, is a fugitive from justice even though he leaves the state with the knowledge of, and without objection by, the state authorities.2 So that the purpose and belief of the accused in leaving the state of his crime does not affect the question of his being a fugitive.® A person indicted the second time for the same offense is a fugitive from justice if he leaves the state after the dismissal of the first indictment; ?° also a person who, after conviction of crime, and before performance of sentence, is released on parole and goes to another state in violation of his parole agreement.1! However, a person who was not in the demanding state at the time the crime was committed is not a fugitive and should be discharged on habeas corpus.’? But, if one does a material act towards accomplishing crime and then absents himself in another state where he completes the crime he is a fugitive from justice from the first state.'* § 63. Fugitive from justice—Proof.—The executive of an asylum state may decide that the accused is a fugitive from justice without further proof than requisition papers.!¢ And it has been held that the question whether the person demanded is a fugitive from justice is one of 8—Drew v. Thaw, 235 U. S. 432; 59 L. Ed. 302. Bassing v. Cady, 208 U. S. 386; 52 L. Ed. 540. Rob- erts v. Reilley, 116 U. S. 80; 29 L. Ed, 544. In re White, 55 Fed. 54. 9—Appleyard v. Mass., 203 U. 8. 222; 51 L. Ed. 161. Ex parte Hoff- stot, 180 Fed. 240. MHofstot v. Flood, 218 U. 8. 665; 54 L. Ed. 1201. . 10—Bassing v. Cady, 208 U. S. 386; 52 L. Ed. 540. 11—Hughes v. Pflanz, 138 Fed. 980. 12—MeNichols v. Pease, 207 U. 8. 100; 52 L. Ed. 121. 13—Strassheim v. Daily, 221 U. S. 280; 55 L. Ed. 735. 14—MeNichols v. Pease, 207 U. 8S. 100; 52 L. Ed. 121. Pettibone v. Nichols, 203 U. 8S. 192; 51 L. Ed. 148. § 65] INTERSTATE EXTRADITION 41 fact which the governor of the asylum state must decide upon such evidence as he deems satisfactory.1® Where the governor in his warrant states or certifies that the party is a fugitive from justice a prima facie case arises which must be met by petitioner when he applies for habeas corpus.1® And the governor’s finding will not be disturbed on habeas corpus where the evidence is conflicting"? Or where the evidence is not as full as might properly have been required.1® The warrant is prima facie evidence as to flight from justice.!® § 64. Offenders against two states——Where a fugitive from justice is amenable as well to the penal laws of the asylum state as to those of the demanding state, it is discretionary with the governor of the asylum state as to whether surrender should be made or not.”° § 65. Documents necessary.—The requisition of the governor and a copy of the indictment make a prima facie case for the issuance of a warrant of removal.?? However, unless the state demanding the return of a fugitive from justice furnishes a copy of indictment or of affidavit as provided by Rev. Stats. 5278, that statute does not require compliance with the demand.” The presumption as a matter of proof is that the facts are as set forth in the warrant of extradition.?® 15—Hyatt v. N. Y., 188 U. 8. 691; 47 L. Ed. 657. Ex parte Reg- gel, 114 U. 8. 642; 29 L. Ed. 250. Roberts v. Reilley, 116 U. S. 80; 29 L. Ed. 544. Cook v. Hart, 146 U. S. 183; 36 L. Ed. 934. 16—In re Keller, 36 Fed. 681. Roberts v. Reilley, 116 U. 8. 80; 29 L. Ed. 544. Eaton v. West Vir- ginia, 91 Fed. 760. 17—Munsey v. Clough, 196 U. 8. 364; 49 L. Ed. 515. 18—Ex parte Reggel, 114 U. &. 642; 29 L. Ed. 250. 19—Bassing v. Cady, 208 U. S. 386; 52 L. Ed. 540. Marbles v. Creecy, 215 U. 8. 63; 54 L. Ed. 92. 20—Roberts v. Reilley, 116 U. 8. 80; 29 L. Ed. 544, 21—Whitten v. Tomlinson, 160 U. S. 231; 40 L. Ed. 406. Marbles v. Creecy, 215 U. S. 63; 54 L. Ed. 92. See also Drew v. Thaw, 235 U. 8. 432; 59 L. Ed. 302. 22—Compton v. Alabama, 214 U. 8. 1; 53 L. Ed. 885. 23—Eaton v. West Virginia, 91 42 FEDERAL CRIMINAL PROCEDURE [§ 65 The extradition warrant is entitled to a reasonable con- struction.24 § 66. Indictment or affidavit—Requisites of—If the indictment or affidavit sets forth a substantial charge of crime, even though defective as a pleading, it is sufficient for extradition.?® The technical sufficiency of the indictment is a matter for the courts of the demanding state not those of the asylum state.2® And it has been held that a record of conviction upon affidavits makes immaterial the question as to the sufficiency of the affidavits.?” An information verified only on information and belief is not an indictment or affidavit such as required by Rev. Stats. 5278 in order to justify the surrender of a fugitive from justice.2® And a warrant founded entirely on an indictment is ineffective where the indictment does not accompany it.?° Whether a person held for siecibun is sufficiently charged with crime is a question of law.2° And whether he is a fugitive is one of fact and the decision that these two requisites exist, when made by the governor of the asylum state, is sufficient to justify removal, at least until overthrown by contrary proof, as in habeas corpus pro- ceedings.*1 Fed. 760. Marbles v. Creecy, 215 155 U.S. 311; 39 L. Ed. 164. Drew U. S. 63; 54 L. Ed. 92. 24—Ex parte Dawson, 83 Fed. 306. 25—Pierce v. Creecy, 210 U. 8. 387; 52 L. Ed. 1113. Munsey v. Clough, 196 U. S. 364; 49 L. Ed. 515. Ex parte Reggel, 114 U. S. 642; 29 L. Ed. 250. In re Strauss, 126 "Fed. 327. 26—Webb v. York, 79 Fed. 616. Ex parte Reggel, 114 U. S. 642; 29 L. Ed. 250. Pearce v. iexaa, v. Thaw, 235 U. S. 432; 59 L. Ed. 302. 27—Hughes v. Pflanz, 138 Fed. 980. 28—Ex parte Hart, 63 Fed. 249. 29—Ex parte Hart, 63 Fed. 249. 30—Munsey v. Clough, 196 U. 8. 364; 49 L. Ed. 515, | 31—Roberts v. Reilley, 116 U. 8S. 80; 29 L. Ed. 544. See also Ex parte Reggel, 114 U. S. 642; 29 L. Ed. 250. § 68] INTERSTATE EXTRADITION 43 A charge of crime before a committing magistrate is sufficient to warrant extradition.*? § 67. Defenses.—In extradition proceedings the exam- ining magistrate need not hear evidence of an affirmative defense on the part of the accused.?3 But on habeas corpus, although a sufficient indictment or affidavit makes a prima facie case, the defendant may ' give evidence in his own behalf,?4 or may show that the warrant of removal is invalidated by reason of the insuf- ficiency of the extradition papers.®* However, the warrant cannot be impeached by the sug- gestion that defendant will not receive a fair’ trial if extradited.*¢ The accused has no right to a hearing before the gov- ernor on the question of whether he has been substan- tially charged with crime and whether he is a fugitive from justice.27 Nor is the accused entitled to have time and opportunity to sue out a writ of habeas corpus.** The statute of limitations of the demanding state is not available as a defense in a habeas corpus proceeding to review extradition. § 68. Trial on other than extradition offenses.—A fugi- tive from justice surrendered by one state to another upon a requisition charging a specific crime has no right, privilege or immunity under the United States constitu- tion or laws to be exempt from indictment and trial for any other or different offense than that named in the 32—Matter of Strauss, 197 U. S. 324; 49 L. Ed. 774. 33—Charlton v. Kelly, 229 U. 8. 447; 57 L. Ed. 1274. 34—Hyatt v. New York, 188 U. S. 691; 47 L. Ed. 657. 35—Ex parte Hart, 63 Fed. 249. 36—Marbles v. Creecy, 215 U. S. 63; 54 L. Ed. 92. U.S. v. Cooke, 209 Fed. 607. Ex parte Dawson, 83 Fed. 306. 37—Munsey v. Clough, 196 U. 8. 364; 49 L. Ed. 515. Marbles v. Creecy, 215 U. S. 63; 54 L. Ed. 92. 38—Pettibone v. Nichols, 203 U. 8. 192; 51 L. Ed. 148. 39—Reed v. U. S., 224 Fed. 378. 44 FEDERAL CRIMINAL PROCEDURE [§ 68 requisition, without first having an opportunity to return to the state from which extradited.*° A person may be extradited a second time upon a second indictment for an offense on which he was origin- ally extradited by means of an indictment which was dis- missed before accused had been placed in jeopardy.*! § 69. Illegal arrest and extradition—Where a party who has been illegally arrested is brought on habeas corpus before a judge having the power of a committing magistrate, or when such party sets up his illegal arrest as a defense, the question of the legality of the arrest is not at issue, the only question being whether the party charged should be tried on the merits.*” The courts of the United States will not interfere to relieve persons who have been arrested and taken by: violence from one state to another, where they are held under process legally issued from the courts of the latter state as the consideration of such questions is within the province of the state court.*® Nor in such case is any mode provided by the laws or constitution of the United States by which such person can be restored to the state from which he was abducted, nor do such laws recognize any right of asylum of a fugitive from justice in any state to which he has fled.*# The remedy of one illegally abducted for the purpose of making him stand trial is by independent proceedings criminal or civil against those responsible for such illegal abduction.*® § 70. Habeas corpus—Scope of inquiry—A warrant of extradition accompanied by a requisition and a copy of 40—Lascelles v. Georgia, 148 U. 43—Cook v. Hart, 146 U. S. 183; S. 537; 37 L. Ed. 549. 36 L. Ed. 934. 41—Bassing v. Cady, 208 U. S. 44—Mahon v. Justice, 127 U. S. 386; 52 L. Ed. 540. 700; 32 L. Ed. 283. 42—Ex parte Johnson, 167 U. 8. 45—Mahon v. Justice, 127 U. 8. 120; 42 L. Ed. 103. Mahon v. Jus- 700; 32 L. Ed. 283. tice, 127 U. 8S. 700; 32 L. Ed. 283. § 70] INTERSTATE EXTRADITION 45 \ an indictment is prima facie evidence that accused has been indicted and is a fugitive from justice, and when the court in which the indictment was found has jurisdiction of the offense the federal courts will leave the question of the lawfulness of the detention of the prisoner to be determined by the demanding state,*® and will not on habeas corpus investigate the guilt or innocence of the accused,*? nor inquire into the technical sufficiency of the indictment and the procedure under it.*® But on habeas corpus the inquiry is always open as to whether the accused is substantially charged with a crime against the laws of the demanding state.*® The defendant may prove he was not in the demanding state at the time the crime was committed to overcome the presumption that he is a fugitive from justice because of his presence in another state after the commission of the crime.®° 46—Whitten v. Tomlinson, 160 U. 49—Roberts v. Reilley, 116 U. 8. 8. 231; 40 L. Ed. 406. 80; 29 L. Hd, 544. 47—Pierce v. Creecy, 210. U. 8. 50—Reed v. U. S., 224 Fed. 378. 387; 52 L. Ed. 1113. 48—Munsey v. Clough, 196 U. S. 364; 49 L. Ed. 515. CHAPTER VI - REMOVAL OF CAUSES FROM STATE COURTS § 71. Removal of Cases Involving Civil Rights of Citizens, and Procedure Therefor. : § 72. Removal Only for Unjust State Law or Practice. § 73. Custody of Prisoner After Conclusion of Case. La § 74. Prisoner to be in Custody of United States Authorities Pending Trial. § 75. Change of Jurisdiction. § 76. Removal of Suits Against Persons Acting Under United : States Authority. § 77. Petition for Removal and Procedure Thereon. § 78. Commencement of Prosecution. § 79. Execution of Judgment. § 71. Removal from state courts of cases involving civil rights of citizens, and procedure for such removal.—Sec. 31, Judicial Code. ‘‘When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or can not enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such | 46 § 71] REMOVAL FROM STATE COURTS 47 suit or prosecution may, upon the petition of such defend- ant, filed in said State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial into the next district court . to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the State courts shall cease, and shall not be resumed except, as hereinafter provided. But all bail and other security’ given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. It shall be the duty of the clerk of the State court to furnish such defendant, petitioning for a removal, copies of said process against him, and all pleadings, depositions, testi- mony, and other proceedings in the case. If such copies are filed by said petitioner in the district. court on the first day ofits session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the district court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reason- able notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his default, may order a nonsuit and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in con- troversy. But if, without such refusal or neglect of said clerk to furnish such copies and -proof thereof, the petitioner for removal fails to file copies in the district court, as herein provided, a certificate, under the seal of the district court, stating such failure, shall be given, and upon the production thereof in said State court the cause shall proceed therein as if no petition for removal had been filed.’’ ‘1912 Supl. Fed. Stats. Anno. 147. 48 FEDERAL CRIMINAL PROCEDURE [§ 72 § 72. Removal only for unjust state law or practice.— Where removal is sought the sole question is whether the state constitution or laws deny any federal right.* And general allegations in advance of trial that defend- ant’s constitutional rights will be denied are insufficient to warrant removal. It is only in case of an unjust law or practice that defendant can foresee injury and obtain removal.? So that the right to remove does not extend to individual infringements of constitutional rights as such infractions are to be corrected by appeal, such as the exclusion of persons from juries on account of race, by officials who do not rely on the law of the state for such exclusion.* Like- wise the fact that a grand jury is organized under a state statute not applicable to the instant case is not ground for removal unless the statute violated invades or denies some federal right.® When the Supreme Court holds that a case is not removable it will not pass upon the merits of any federal question alleged to be involved in such case.® § 73. Custody of prisoner after conclusion of case.— The quashing of an indictment by a federal court after removal of the case from a state court does not preclude the state court thereafter from finding a new indictment and trying the same prisoner for the same offense. And upon quashing such indictment, the United States court may, if it see fit, order the return of defendant to the state authorities for such further action as justice may require.” 1—Smith v. Mississippi, 162 U. 8. Ed. 1075. Kentucky v. Powers, 201 592; 40 L. Ed. 1082. U.S. 1; 50 L. Ed. 633. 2—Bush v. Kentucky, 107 U. 8. 5—Gibson v. Mississippi, 162 U. 110; 27 L. Ed. 354. 8. 565; 40 L. Ed. 1075. 38—Virginia v. Rives, 100 U. 8. 6—Kentucky v. Powers, 201 U.S. 313; 25 L. Ed. 667. 1; 50 L. Ed. 633. 4—Murray v. Louisiana, 163 U. 7--Bush v. Kentucky, 107 U. 8. 8. 101; 41 L. Ed. 87. Gibson v. 110; 27 L. Ed. 354. Mississippi, 162 U. S. 565; 40 L. § 76] REMOVAL FROM STATE COURTS 49 § 74. Prisoner in removal case to be taken into custody of United States officers pending trial—Sec. 32, Judicial Code. ‘‘When all the acts necessary for the removal of any suit or prosecution, as provided in the preceding section, have been performed, and the defendant petition- ing for such removal is in actual custody on process issued by said State court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said district court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said State court a duplicate copy of said writ.’’ 1912 Supl. Fed. Stats. Anno. 147. , § 75. Change of jurisdiction—The removal of the case out of the jurisdiction of the state court and into the exclusive jurisdiction of the federal court takes place, without any order of the federal court, as soon as the state court by the service upon it or its clerk of the appro- priate process, whether certiorari or habeas corpus cum causa, has notice of the filing of the petition in the federal court.® § 76. Removal from state court of suits against persons acting under United States authority.Sec. 33, Judicial Code. ‘‘When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under 8—Virginia v. Paul, 148 U. 8. 107; 37 L. Ed. 386. \ 50 FEDERAL CRIMINAL PROCEDURE [§ 76 any such law; or is commenced against any person hold- ing property or estate by title derived from any such ' officer, and affects the validity of any such revenue law; or when any suit is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty, in executing any order of such House, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the district court next to be holden in the district where the same is pending, upon the petition of such defendant to said district court, and in the following manner: Said petition shall set forth the nature of the suit or prosecution and be verified by affidavit, and, together with a certificate signed by an attorney or counselor at law of some court of record of the State where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceed- ings against him and carefully inquired into all the mat- ters set forth in the petition, and that he believes them to be true, shall be presented to the said district court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the district court, and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. When the suit is commenced in the State court by summons, subpoena, petition, or other process except capias, the clerk of the district court shall issue a writ of certiorari to the State court, requiring it to send to the district court the record and proceedings in the cause. When it is commenced by capias or by any other similar form or (of) proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the Sok ONS § 77) REMOVAL FROM STATE COURTS 51 clerk of the State court, or left at his office, by the marshal of the district or his deputy, or by some person duly authorized thereto; and thereupon it shall be the duty of the State court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the district court, and any further proceedings, trial or judgment therein in the State court shall be void. If the defendant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the district court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the district court that no copy of the record and proceedings therein in the State court can be obtained, the district court may allow and require the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said district court. On failure of the plaintiff so to pro- ceed, judgment of non prosequitur may be rendered against him, with costs for the defendant.’’ 1912 Supl. Fed. Stats. Anno. 148. § 77. Petition for removal and procedure thereon.—It is the duty of one petitioning for removal under Sec. 33, Judicial Code, to procure the indictment and proceedings of the state court and where the clerk has been tendered his proper fees therefor and fails or refuses to furnish a certified copy of the record, a writ of certiorari should issue from the federal court, or the record may be sup- plied by affidavit, which course may also be taken when the petitioner is unable to pay the clerk’s fee.° The jurisdiction of the state court is not taken away 9—Virginia v. Felts, 133 Fed. 85. Byrne’s Crim. Proe.—6 52 FEDERAL CRIMINAL PROCEDURE [§ 77 until the petition for removal is filed in the United States court and the writ of certiorari or habeas corpus cum causa is issued by the clerk and served upon the state court or its clerk. When there are several places at sclideh the federal court is held in the district, the removal petition should be filed where the next session of court is to be held, although some latitude seems allowable in this respect.” No procedure is prescribed by the statute for the trial in the federal court, but it appears that the state prac- _tice should be followed in substantive matters, such as the impaneling and charging of the jury, the number of challenges allowed and in determining the competency of witnesses, as distinguished from the regulation of argu- ments of counsel, the order of introduction of evidence and the right to direct verdicts, these matters being regulated by federal court practice and rules.’” After reasonable opportunity, if the state fails or refuses to prosecute after removal of a case to the federal court, the court will impanel a jury and direct a verdict of not guilty.1% A petition for removal sufficient on its face gives the federal court prima facie jurisdiction, but the truth of such petition may be put in issue by a plea to the juris- diction, or a motion to remand to the state court, and the issue should be tried by a jury subject to the right of the court to direct a verdict thereon when proper, and the burden of proof rests on the petitioner.1* After removal of a criminal cause from a state to a federal court, it is the duty of the state officers to con- tinue the prosecution in the latter court and of the United States attorney to defend.'® 10—Virginia v. Paul, 148 U. 8. 13—Virginia v. Felts, 133 Fed. 107; 37 L. Ed. 386. 85. 11—Virginia v. Felts, 133 Fed. | 14—Virginia v. Felts, 133 Fed. 85. 85. 12—Virginia v. Felts, 133 Fed. 15—Delaware v. Emerson, 8 Fed. 85. 8 411, § 79] REMOVAL FROM STATE COURTS 53 When the prosecution is removed from a state to a federal court, the jurisdiction of the latter completely vests and that of the former ceases altogether, so that bail cannot be forfeited in the state court after such re- moval!¢ § 78. Commencement of prosecution.—A prosecution is not commenced until the return of the indictment and a defendant arrested on the warrant of a justice of the peace with a view to commitment to await action of the grand jury, cannot remove such proceedings to a federal court before indictment.’7 But where petitioner. is held by a state justice of the peace for an offense not indict- able, the prosecution is removable when founded on a warrant issued by such justice.?8 § 79. Judgment—Execution of.—It has been held that where the defendant in a criminal case removed into the federal court is convicted and sentenced in that court in accordance with the state law, he should be delivered to the proper state officer for execution of the sentence. If the state authorities should decline to receive the convict, it has been intimated the federal court would order him liberated by the marshal.1® 16—Davis v. S. Carolina, 107 U. 18—Virginia v. Bingham, 88 Fed. 8S. 597; 27 L. Ed. 574. 566. 17—Virginia v. Paul, 148 U. §. 19—Virginia v. Felts, 183 Fed. 107; 37 L. Ed. 386. © 85. COR COD COD COD COD COD COD COD COD COD COD COD COD COD COD COD COD CD COD COD a ay > =) § 101. § 102. § 103. § 104. § 105. § 106. § 107. § 108. § 109. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. CHAPTER VII THE GRAND JURY Qualifications of Federal Jurors. Disqualifications of Grand Jurors. Disqualifications of Grand Jurors—Time and Manner of Objecting to. Manner of Drawing Federal Jurors. Decisions Regarding Drawing of Jurors. Jurors to be Obtained from Such Parts of District as Court Shall Direct. Decisions Regarding District of the Jury. Race and Color No Disqualification for Jury Service. Decisions Regarding Race and Color of Jurors. Service and Return of Writs of Venire Facias. Necessity of Writs of Venire Facias. Number of Members Constituting Grand Jury. Decisions Regarding Number of Members of Grand Jury. _Appointment of Foreman. Substitution of Foremen. Court’s Discretion in Summoning Grand Juries. Impaneling—in general. Order of Court for Grand Jury. Discharge of Grand Jury. Decisions Regarding Discharge of Grand J ury. Oath of Grand Jurors., Powers and Duties of Grand Jury. Requisites of Grand Jury Subpoenas. Prejudice of Grand Jurors. Defendant’s Immunity Before Grand Jury. Evidence Before Grand Jury. District Attorney’s Duties. Return of Indictments. Recalling Witnesses for Second Indictment. Unauthorized Persons in Grand Jury Room. § 80. Federal jurors—Qualifications of —Sec. 275, Judi- cial Code. ‘‘Jurors to serve in the courts of the United 54 § 82] THE GRAND JURY 55 States, in each state respectively, shall have the same qualifications, subject to the provisions hereinafter con- tained, and be entitled to the same exemptions, as jurors of the highest court of law in such state may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned.’’ 1912 Supl. Fed. Stats. Anno. 245. § 81. Disqualifications of grand jurors—What are.— The right of peremptory challenges either to the grand jury array or to the poll does not exist at common law, - and therefore such challenges lie only for the causes, specified by statute.t In addition to the qualifications mentioned by the state statute the federal courts may enforce objections to grand jurors which would unfit them to act,? and this may be done on the court’s own motion.® j Complaint will not lie to the action of the court in excusing grand jurors of its own motion where those sub- stituted were not disqualified, # A party whose objection is to a portion only of the panel should not challenge the array but only the objec- tionable individuals or should plead in abatement.® Under See. 288, Judicial Code, stating causes of chal- lenge to jury members in prosecutions for bigamy and the like, such causes of challenge apply as well to persons _ summoned as grand jurors.® § 82. Disqualification of grand jurors—Time and man- ner of objecting.—Objection to the personal qualifica- tions of grand jurors may be made by plea in abatement after filing of indictment, but prior to arraignment and as soon as the facts on which it is based are discovered.” 1—Sharp v. U. S., 188 Fed. 878. 6—Clawson v. U. S., 114 U. S. 2—U. 8. v. Benson, 31 Fed. 896. 477; 29 L. Ed. 179. 3—U. 8. v. Jones, 69 Fed. 973. 7—Crowley v. U. S., 194 U. 8S. 4—U. 8. v. Jones, 69 Fed. 973. 461; 48 L. Ed. 1075. 5—U. 8S. v. Richardson, 28 Fed. 61. : J 56 FEDERAL CRIMINAL PROCEDURE [§ 82 Objections to irregularities in summoning, impaneling and organizing the grand jury must be made by motion to quash or plea in abatement and cannot be raised for the first time in the appellate court,’ and such pleas must be made at the earliest possible moment.® Objections to qualifications of grand jurors or mode of summoning or impaneling them must be made by motion to quash or plea in abatement before pleading in bar,’ and such objections are waived by going to trial without raising them.1! But a motion to quash made before arraignment is timely when no opportunity existed for challenging the array.!” The common law rule generally holds good in the federal courts that when an objection to the constitution of the grand jury is discovered before the finding of the bill the jurors objected to should be challenged, and if discovered after the finding of the bill plea in abatement should be filed.*8 Objections to qualifications of grand jurors may be made by motions to quash accompanied by the offer of proof of facts constituting the objections.'* Where the objection to the grand jury does not render the entire impaneling proceeding void but merely results in excluding some persons who might properly have served thereon but does not result in the service of dis- 8—Burchett v. U. S., 194 Fed. 84. 9—Lowdon v. U.S., 149 Fed. 673. Wolfson v. U. S., 101 Fed. 430. Hyde v. U. S., 225 U. S. 347; 56 L. Ed. 1114. Agnew v. U. 8., 165 U.S. 36; 41 L. Ed. 624. Powers v. U. 8., 223 U. S. 303; 56 L. Ed. 448. 10—U. 8. v. Gale, 109 U. 8S. 65; 27 L. Ed. 857. 2 11—McInerny v: U. 8., 147 Fed. 183. 12—Carter v. Texas, 177 U. S. 442; 44 L. Ed. 839. 13—Crowley v. U. S., 194 U. 8. 461; 48 L. Ed. 1075. Hillegass v. U. S., 183 Fed. 199. 14—Neal v. Delaware, 103 U. 8S. 370; 26 L. Ed. 567. Smith v. Mis- sissippi, 162 U. S. 592; 40 L. Ed. 1082. Williams v. Mississippi, 170 U.S, 218; 42 L. Ed. 1012. Martin v. Texas, 200 U. S. 316. Hillegass v. U. S., 183 Fed. 199. § 84] THE GRAND JURY 57 qualified persons, the objection must be made before trial.*5 Generally objections on the ground of irregularity in the organization of the grand jury are not viewed with favor and should be filed promptly,!* however, an objec- tion when substantial and not merely technical may be taken at any time before arraignment.17 § 83. Manner of drawing of jurors for federal courts.— Sec. 276, Judicial Code. ‘‘All such jurors, grand and petit, including those summoned during the session of the court shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications prescribed in the section last preceding, which names shall have been placed therein by the clerk of such court and a commis- sioner, to be appointed by the judge thereof, or by the judge senior in commission in districts having more than one judge, which commissioner shall be a citizen of good standing, residing in the district,in which such court is held, and a well known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alter- nately, without reference to party affiliations, until the whole number required shall be placed therein.’? 1912 Supl. Fed. Stats. Anno. 245.. § 84. Decisions regarding drawing of jurors—Names in the regular j jury box will be presumed in the absence of contradictory proof, to have been placed therein regu- larly by the clerk and jury commissioner.'* But where a large proportion of the names in the jury box were given to the jury commissioner a an assistant district attor- 15—U. 8. v. Gale, 109'U. 8. 65; 17—U. 8. v. Haskell, 169 Fed. 27 L. Ed. 857. 449, 16—Wolfson v. U. 8., 101 Fed. 18—May v. U. S., 199 Fed. 42. 430. 58 FEDERAL CRIMINAL PROCEDURE [§ 84 ney, a challenge to the panel was sustained on the ground that the names must be selected by the commissioner and clerk of the court.!® | A venire for a jury may properly be issued after a term has begun and it need not recite that the jurors are sum- moned for the trial of any particular case.2° The drawing of the jury on order of the judge during vacation of court constitutes no legal ground for quashal where no prejudice is shown to have resulted.?! No notice of the drawing of a federal grand jury need be given to defendants.?? It would seem that the provisions of Sec. 276, Judicial Code, are mandatory in nature, but as to this question the decisions are in some conflict.?3 _ It has been held that as the statute does not limit the number of jury commissioners to a single person, more than one may be appointed; also that there appears no good reason why a deputy clerk may not act for his clerk in placing names in the jury lists or in the jury box.?4 § 85. Jurors obtained from such parts of the district, as court shall direct.—Sec. 277, Judicial Code. ‘‘Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to. incur an unnecessary expense, or unduly burden the citizens of any part of the district with such service.’’ 1912 Supl. Fed. Stats. Anno. 245. § 86. Decisions regarding district of the jury.—In the absence of a particular order by the court, the jurors should be drawn from the whole district.?® 19—U. S. v. Murphy, 224 Fed. 23—U. 8. v. Greene, 108 Fed. 816. 554. U. S. v. Chaires, 40 Fed. 820, Ex 20—Andersen v. U. S.,170 U. 8. parte Harlan, 180 Fed. 119. 481; 42 L. Ed. 1116. 24—U. S. v. Rockefeller, 221 Fed. 21—Stockslager v. U.8., 116 Fed. 462. 590. 25—May v. U. S., 199 Fed. 42. 22—U. 8S. v. Lewis, 192 Fed. 633. § 88] THE GRAND JURY 59 It is no objection to the legality of the constitution of a grand jury that it was drawn from a district included but larger in area than the district as it was constituted at the time the offense was committed.2¢ The court’s action in ordering that no jurors be drawn from one certain county of the district is not reversible error? ' And the jurors need not be apportioned according to the population of the towns in the judicial district nor according to the qualified jurors in the various towns and wards.”8 Sec. 277, Judicial Code, is applicable to both grand and petit jurors.?° § 87. Race and color no disqualification for jury service. —Sec. 278, Judicial Code. ‘‘No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States on account of race, color, or previous condition of servitude.’? 1912 Supl. Fed. Stats. Anno. 246. § 88. Decisions regarding race and color of jurors.— Section 278 of the Judicial Code is similar in effect to the Fourteenth Constitutional Amendment, and the follow- ing cases construing the amendment are persuasive as to the construction of the statute: Improper statutory disqualification of grand jurors is more than a defect of form under Rev. Stats. 1025 covering formal errors.*° If negroes are excluded from the grand jury solely because of race, this is a denial of the equal protection 26—McKinney v. U. S., 199 Fed. .29—Agnew v. U. S., 165 U. S. 25. 36; 41 L. Ed. 624. Spencer v. U. 27—-Spencer v. U. S., 169 Fed. S., 169 Fed. 562. 562, 30—Crowley v. U. S8., 194 U. 8. 28—U. S. v. Murphy, 224 Fed. 461; 48 L. Ed. 1075. 554, , 60 FEDERAL CRIMINAL PROCEDURE [§ 88 of the law to a negro defendant,*! and the indictments found by a grand jury from which negroes have been illegally excluded should be set aside.3? The defendant while not entitled necessarily to a jury composed of persons of his own race, is entitled to a jury of his peers, that is, persons having the same legal status as himself.38 Nor is the defendant entitled to a jury composed even partly of his own race, but no person should be excluded therefrom because of race.*4 The accused has the burden of proof when alleging the exclusion of members of his race from the grand jury in violation of the Fourteenth Constitutional Amendment,?* and such burden of proof is not satisfied by an affidavit on information and belief.?¢ § 89. Writs of venire facias—Service and return of.— Sec. 279, Judicial Code. ‘‘Writs of venire facias, when directed by the court, shall issue from the clerk’s office, and shall be served and returned by the marshal in per- son, or by his deputy; or, in case the marshal or his deputy is not an indifferent person or is interested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to him an oath that he will truly and impar- tially serve and return the writ. Any person named in such writ who resides elsewhere than at the place at which the court is held, shall be served by the marshal 31—Rogers v. Alabama, 192 U. 8. 226; 48 L. Ed. 417. Carter v. Texas, 177 U. S. 442; 44 L. Ed. 839. Miles v. U. S., 103 U. 8. 304; 26 L. Ed. 481. 32—Bush v. Kentucky, 107 U. S. 110; 27 L. Ed. 354. Strauder v. West Virginia, 100 U. 8. 303; 25 L. Ed. 664. 33—Strauder v. West Virginia, 100 U. S. 303; 25 L. Ed. 664. 34—Bush v. Kentucky, 107 U. 8S. 110; 27 L. Ed. 354. Virginia v. Rives, 100 U. S. 313; 25 L. Ed. 667. In re Wood, 140 U. S. 278; 35 L. Ed. 505. on 35—Martin v. Texas, 200 U. 8. 316; 50 L. Ed. 497. 36—Tarrance v. Florida, 188 U. 8. 519; 47 L. Ed. 572. § 91] THE GRAND JURY 61 mailing a copy thereof to such person commanding him to attend as a juror at a time and place designated therein, which copy shall be registered and deposited in the post office addressed to such person at his usual postoffice address. And the receipt of the person so addressed for such registered copy shall be regarded as personal service of such writ upon such person, and no mileage shall be allowed for the service of such person. The postage and registry fee shall be paid by the marshal and allowed him in the settlement of his accounts.’’ 1912 Supl. Fed. Stats. Anno. 246. § 90. Necessity for writ—A writ of venire facias or similar process is necessary to bring together a grand jury, and an indictment was quashed which had been returned by a grand jury summoned by a purported writ of venire facias, irregular in being directed to the ‘‘Marshal of the District of Louisiana,’’ rather than ‘‘Marshal of the Eastern District of Louisiana,’’ and tested by a deputy clerk of the court instead of in the name of the proper justice of the Supreme Court.*” But the objection that there was no venire facias, if tenable at all, is not allowable on writ of error where it was not made before plea or at any time during trial.** The writ need not disclose the name of the person to be tried.®° §91. Grand jury—Number of members.—Sec. 282, Judicial Code. ‘‘Every grand jury impaneled before any district court shall consist of not less than sixteen nor more than twenty-three persons. If of the persons sum- moned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a suf- 37—U. 8. v. Antz, 16 Fed. 119. 39—Andersen v. U. 8., 170 U. 8. $8—Hendricks v. U. 8., 223 U.S. 481; 42 L. Ed. 1116. 178; 56 L, Ed. 394. ' 62 FEDERAL CRIMINAL PROCEDURE [§ 91 ficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose.’’ 1912 Supl. Fed. Stats. Anno. 246. § 92. Decisions regarding number of members of grand jury.—The fact that the court directed the summoning of additional grand jurors although there were a sufficient number impaneled and sworn at the time to constitute a. legal grand jury, is not an objection to the legality of the panel.*° The absence of one or more jurors does not affect an indictment found by a sufficient number to aanaty the requirements of the statute.*1 Before this statute existed it was held that when the list of names available for service was exhausted without completing the jury the court could order an open venire to summon jurors from the body of the district in accord- ance with the common law practice.*? § 93. Appointment of foreman.—Sec. 283, Judicial Code. ‘‘From the persons summoned and accepted as grand jurors, the court shall appoint the foreman, who shall have power to administer oaths and affirmations to witnesses appearing before the grand jury.’’ 1912 Supl. Fed. Stats. Anno. 247. § 94, Substitution of foremen.—The fact that the fore- man of a grand jury is relieved from serving and another appointed in his place does not invalidate the proceedings of such jury.*? As to duties and powers of foreman of 40—U. 8. v. Nevin, 199 Fed. 831. 48—U. 8. v. Belvin, 46 Fed. 381. 41—Jones v. U. 8., 162 Fed. 417. 42—Clawson v. U. 8., 114 U. S. 477; 29 L. Ed. 179. § 97] THE GRAND JUBY 63 grand jury with regard to signing and returning of indict- ments, see Sec. 107, infra. — § 95. Orders for grand juries in court’s discretion — Sec. 284, Judicial Code. ‘‘No grand jury shall be sum- moned to attend any district court unless the judge thereof, in his own discretion or upon a notification: by the district attorney that such jury will be needed, ordérs a venire to issue therefor. If the United States attorney for any district which has a city or borough containing at least three hundred thousand inhabitants shall certify in writing to the district judge, or the senior district judge of the district, that the exigencies of the public service require it.the judge may, in his discretion, also order a venire to issue for a second grand jury. And said court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, when- ever, in its judgment, it may be proper to do so. But nothing herein shall operate to extend beyond the time permitted by law the imprisonment before indictment found of a person accused of a crime or offense, or the time during which a person so accused may be held under recognizance before indictment found.’’ 1912 Supl. Fed. Stats. Anno. 247. § 96. Impaneling—In general.—The powers of United States courts with respect to the summoning and pro- cedure of grand juries is co-extensive with their criminal jurisdiction. Proceedings to impanel a grand jury are part of the prosecution of persons indicted by such grand jury.** § 97. Order of court for grand jury.—An order for a venire will be implied from an order directing the clerk and jury commissioner to draw jurors for service.* A judge ordering a grand jury need not be present 44—Clawson v. U. S., 114 U. S. 45—Breese v. U. S., 203 Fed. 824. 477; 29 L. Ed. 179. 64 FEDERAL CRIMINAL PROCEDURE [§ 97 when the order is executed,** and the objection that the judge when ordering the grand jury impaneled was out- side the district is not available on habeas corpus nor is the evidence presented to the grand jury reviewable on such writ.” A judge from another district designated under Section 13 of the Judicial Code to act in a different district may properly order the summoning of a grand jury in such district.*® An order for a federal grand jury need not state for what time it is to serve.*® If an order for a grand jury is made by the proper authority its source, whether the court or one of its judges, is of no concern to one afterwards indicted by the jury, but if the drawing is by unauthorized persons or other persons not properly selected or qualified, the indictment may be quashed.®° And a grand jury drawn by the proper authority and composed of qualified persons is authorized to suit unless the court of which it forms a part is holding a session at an unauthorized time or place.*! Under Sec. 284, Judicial Code, the judge may summon a grand jury at any term, regular or special, and at any time within the term.*? § 98. Discharge of grand jury.—Sec. 285, Judicial Code. ‘““The district courts, the district courts of the territories, and the Supreme Court of the District of Columbia may discharge their grand juries whenever they deem a con- tinuance of the sessions of such grand juries unneces- sary.’’? 1912 Supl. Fed. Stats. Anno. 247. 46—Ex parte Harlan, 180 Fed. 50—Ex parte Harlan, 180 Fed. 119. 119. 47—Harlan v. McGourin, 218 U. 51—-Ex parte Harlan, 180 Fed. S. 442; 54 L. Ed. 1101. 119. 48—May v. U. 8., 199 Fed. 42. 52—MeDowell v. U. S., 159 U. S. 49—U. S. v. Lewis, 192 Fed. 633. 596; 40 L. Ed. 271. § 101] THE GRAND JURY 65 § 99. Decisions regarding discharge of grand jury.— The discharge of the grand jury is only accomplished by direct order of court or by final adjournment of court for the term for which the grand jury was impaneled, and the grand jury may transact business whether the court is in session or not.58 It has been held that the court may direct a grand jury to hold over more than one term if necessary to complete its investigations.*4 § 100. Oath of grand jurors.—The swearing of the grand jury is sufficiently shown by an averment that they were impaneled and by a recital in the indictment that they were ‘‘impaneled, sworn and charged.’’ © The grand jury’s oath is mandatory in its requirements of due diligence and true presentment, freedom from fear, favor or hope of reward but not as to secrecy.°* And secrecy is not ordinarily necessary on the part_of the grand jurors after an indictment has been returned and the grand jury discharged,*’ so that whenever it becomes necessary to the protection of public or private rights any person may disclose in evidence what transpired before a grand jury,** but it should not be disclosed how individual jurors voted or what they said during their investigations.°® §101. Grand jury—Powers and duties—A federal grand jury has inquisitorial powers.®° ‘The grand jury may subpoena witnesses without any 538—Jones v. U. S., 162 Fed. 417. 54—U. S. v. Rockefeller, 221 Fed. . 462. 55—Burchett v. U. S., 194 Fed. 84. 56—Atwell v. U. S., 162 Fed. 97. 57—Atwell v. U. S., 162 Fed. 97. Powers v. U. 8., 223 U. S. 303; 56 L. Ed. 448. 58—U. 8. v. Farrington, 5 Fed. 343. 59—U. 8S. v. Farrington, 5 Fed. 343. 60—In re Bornn Hat Co., 184 Fed. 506. Bornn Hat Co. v. U. S., 223 U.S. 713; 56 L. Ed. 626. 66 FEDERAL CRIMINAL PROCEDURE [§ 101 specific cause pending,*? and the grand jury need not notify witnesses of the nature of the charge which is being investigated.®? The accused has no right either constitutional or statu- tory to be informed of the names of grand jury wit- nesses,** nor to be notified of the grand jury investiga- tion. § 102. Grand jury subpoenas—Requisites of. —It seems ‘that grand jury subpoenas should disclose either the names of the persons against whom the inquiry is insti- tuted or the subject of the inquiry, and that subpoenas defective in both these respects will be quashed on motion.® A subpoena duces tecum should specify the documents that are required and that are in the witness’ possession ° and a witness'is not subject to arraignment for contempt for failing to produce in obedience toa subpoena duces tecum documents which were not in his physical posses- sion nor under his personal control.* A subpoena duces tecum is not invalid because it con- tains no ad testificandum clause nor.because there is no specific charge pending before the grand jury,*®* and papers may be required without oral testimony on a sub- poena duces tecum which omits the ad testificandum clause.®° ' A subpoena duces tecum may issue against a corpora- tion requiring it to appear before a grand jury to produce 61—Wilson v. U. S., 221 U. S. 66—Murray v. Louisiana, 163 U. 361; 55 L. Ed. 771. Hale v. Hen- 8. 101; 41 L. Ed. 87. - kel, 201 U. S. 43; 50 L. Ed. 652. 67—Munroe v. U. S., 216 Fed. 62—Hale v. Henkel, 201 U. 8.43; 107. : 50 L. Ed. 652. 68—Noreross v. U. S., 209 Fed. 63—Wilson v. U. S., 221 U. S. 13. 361; 55 L. Ed. 771. U.S.v. Aviles, 69—Wilson v. U. S., 221 U. 8. 222 Fed. 474. 361; 55 L. Ed. 771. 64—U. 8. v. Lewis, 192 Fed. 633. 65—In re Shaw, 172 Fed. 520. § 104] THE GRAND JURY 67 books and papers for examination,” and this is so even though the grand jury be engaged in investigating the _acts of such corporation,”! and a subpoena requiring the ‘production of a corporation’s minute books for three years and letter copy books for three or four months is not too broad and sweeping.7? A corporation complies with a subpoena duces tecum by presenting the documents required to the grand jury when actually in session and taking them away again as soon as the particular session adjourns, the documents remaining with the grand jury during the session.”® § 103. Prejudice of grand jurors.—Where the trial judge allowed a person to serve as a grand juror who had an actual bias as to a certain case but instructed him not ‘to participate in the consideration of and voting upon said case it was held that no error occurred." However, where it is shown on plea in abatement that one of the grand jury had previously served on a petit jury which had rendered a verdict of guilty against the prisoner for the same offense on a former trial, the plea will be sustained and the indictment dismissed.”® On the contrary, it has been held that an officer who had issued a warrant of arrest for accused and expressed an opinion as to his guilt was not thereby disqualified to ‘serve as a grand juror and assist in finding an indict- ment against him.7é § 104. Defendant’s immunity before grand jury.—An indictment should be quashed when it appears that defendant was compelled by subpoena to attend before 70—Bornn Hat Co. v. U. S., 223 73—In re American Sugar Re- U. S. 718; 56 L. Ed. 626. In re_ fining Co., 178 Fed. 109. Bornn Hat Co., 184 Fed. 506. 74—Jackson v. U. S., 102 Fed. 71—U. 8. v. American Tobacco 473. Co., 146 Fed. 557. 75—U. S. v. Jones, 31 Fed. 725. 72—U. 8. v. American Tobacco 76—U. S. v. Belvin, 46 Fed. 381. Co., 146 Fed. 557. Byrne’s Crim. Proc.—7 68 FEDERAL CRIMINAL PROCEDURE [§ 104 the grand jury and give material testimony without knowing that his own conduct was under investigation.” But a corporation has no immunity before the grand j jury, even though its own acts be under investigation.”® On the other hand a person whose acts are under investigation by a grand jury has no right to give testi- mony himself or to present evidence of witnesses in his behalf before such jury, and a petition asking that the court order that such privileges be granted will be denied even if petitioner is willing to waive all immunity.” § 105. Evidence before grand jury.—lInvestigations before grand juries should be made in accordance with the well established rules of evidence and the jury should hear the best legal proofs of which the case admits.®° Unless in extreme cases to prevent clear injustice or an abuse of judicial process, a defendant cannot require the court to review the evidence before the grand jury to determine its sufficiency or whether incompetent evidence was received.®! A grand jury is presumed to have acted on legal evi- dence in returning an indictment until defendant shows the contrary.” Defendant is not entitled to an inspection of the minutes of the grand jury to ascertain the sufficiency of the evidence on which his indictment was based.®? Nor has he any general right to have evidence.in exoneration go before the grand jury.* Incompetent evidence (when joined with competent) is 77—U. 8. v. Edgerton, 80 Fed. 374. 78—U. 8. v. American Tobacco Co., 146 Fed. 557. Hale v. Henkel, 201 U. S. 43; 50 L. Ed. 652. 79—U. 8. v. Bolles, 209 Fed. 682. U. 8. v. Terry, 39 Fed. 355. 80—U. 8. v. Kilpatrick, 16-Fed. 765. U. 8. v. Bolles, 209 Fed. 682. 81—McKinney v. U. 8., 199 Fed. 25. McGregor v. U. 8., 134 Fed. 187. U. 8. v. Farrington, 5 Fed. 343. ' §2—Ex parte Harlan, 180 Fed. 119. 83—U. 8. v. Violon, 173 Fed. 501. 84—Charlton v. Kelly, 229 U. 8. 447; 57 L. Ed. 1274. § 106] THE GRAND JURY 69 not ground for quashal,** and it has been held that defendant must show that no competent evidence whatso- ever was heard.®* An error in producing evidence before the grand jury is not ground for quashal if not prejudicial,*” and the fact that competent evidence produced before the grand jury was obtained by an unlawful seizure is no ground for a plea in abatement.®® § 106. District attorney’s duties —The district attorney has no right to participate in or be present during the deliberations of the grand jury, nor to express opinions on questions of fact or as to the weight and sufficiency of the evidence.®® However, mere general objections that the district attorney was very much prejudiced against defendant and had actively worked up feeling against him and had been present in the grand jury room. while the indictment was under consideration have been held insufficient to authorize the quashing of the indictment.” The fact that an assistant district attorney was appointed the day before the case was presented to the grand jury and served only six days and until the return of the indictment does not affect the latter,®! and the fact that an assistant district attorney takes stenographic notes of testimony before the grand jury is not ground for quashal.®* The court will not review the conduct of the district attorney before the grand jury unless on a showing of 85—Moore v. U. S., 218 U. 8. 89—U. B. v. Wells, 163 Fed. 313. 245; 54 L, Ed. 1021. U. 8. v. Has- 90—U. 8. v. Mitchell, 136 Fed. kell, 169 Fed. 449. Chadwick v. U. 896. *$., 141 Fed. 225. 91—Browne v. U. S., 145 Fed. 1. 86—Chadwick v. U. 8., 141 Fed. 92—U. 8S. v. Simmons, 46 Fed. 65. 225. U. 8. v. Haskell, 169 Fed. 449. See 87~-Hillman v. U. S., 192 Fed. also Sec. 100 infra. 264. 88—Hillman v. U. S., 192 Fed. 70 FEDERAL CRIMINAL PROCEDURE [§ 106 impropriety causing prejudice, actual or presumptive, to the defendant.*? § 107. Return of indictments——The endorsement of the foreman’s name and the words ‘‘true bill’’ is advisable but not indispensable to the indictment and the lack of such endorsement is waived by pleading and going to trial upon the indictment.*! The return of an indictment by the foreman alone to the clerk of the court when the court is mobs in session is a void procedure.®® If the indictment is given to the judge when the court is in session a return is not defective; ** however, even though the court be in session, if the judge’s attention is not called to the indictment apparently the’ return is invalid.” The legality of antecedent matters is presumed when the indictment has been legally returned in open court.®® The record should show that the indictment was re- turned into court by the grand jury, either by a minute entry or by an endorsement on the indictment itself,?® but any defect in this matter may be cured by a nunc pro tunc order and on writ of error by proper recital in the bill of exceptions.1° Objections to formal matters in the manner of return of an indictment such as that the grand jury did not accompany the foreman when presenting the indictment to the court, should be made promptly or they will be considered as waived under Rev. Stats. 1025 curing formal errors.” . 93—U. 8. v. Philadelphia & R. Ry. Co., 225 Fed. 301. 94—Frisbie v. U. 8. 157 U. 8. 160; 39 L. Ed. 657. 95—Renegar v. U. S., 172 Fed. 646. 96—U. 8. v. Breese, 172 Fed. 765. 97—Angle v. U. S., 172 Fed. 658. 98—Carlisle v. U. S., 194 Fed. 827. 99—Ledbetter v. U. S., 108 Fed. 52. 100—Ledbetter v. U. &., 108 Fed. 52, 101—Breese v. U. 8., 226 U. 8. 1; 57 L. Ed. 97. § 109] THE GRAND JURY 71 No formal vote of grand jurors is essential to an indict- ment, and if one is taken it need not be recorded, an intel- ligent assent of the jurors being sufficient.'°2 § 108. Recalling witnesses for second indictment.—If a second indictment be drawn to cure defects in a former one returned by the same grand jury the witnesses need not be recalled to testify again before the grand jury.‘ § 109. Unauthorized persons in grand jury room.—The presence of an unauthorized person in the grand jury room during their investigations is ground for quashing an indictment found by such grand jury as the result of investigations at which such unauthorized person at- tended.'°* This applies to an expert accountant who is not an attorney at law although appointed by the attorney general ‘‘a special assistant to’’ a United States attorney. to assist in the investigation and prosecution of a par- ticular case.1°5 An indictment will be quashed where an expert witness remained in the grand jury room during and assisted in the examination of another witness.’ Indictments based on proceedings before a federal grand jury by an unauthorized officer will be quashed.17 It is contempt of court for any one to communicate private information to a grand juror for the purpose of obtaining an indictment other than as a properly sworn witness.1°8 , 102—Ex parte Harlan, 180 Fed. 107—-U. 8. v. Rosenthal, 121 Fed. 119. 862. U. 8S. v. Virginia-Carolina 103—Ex parte Harlan, 180 Fed. Chemical Co., 163 Fed. 66. See, 119. however, U. 8. v. Cobban, 127 Fed. 104—U. S. v. Heinze, 177 Fed. 713. tie 770. ; 108—U. S. v. Kilpatrick, 16 Fed. 105—U. S. v. Heinze, 177 Fed. 765. 770. 106—U. 8. v. Edgerton, 80 Fed. 374, gs 72 FEDERAL CRIMINAL PROCEDURE [§ 109 Properly appointed assistant district attorneys may make stenographic notes of the testimony before the grand jury and read the same to persons outside the grand jury room.’°® 109—U. 8. v. Simmons, 46 Fed. 65. Fed. 462. Contra U. S. v. Phila- U. 8. v. American Tobacco Co., 177 delphia & R. Ry Co., 221 Fed. 683. Fed. 774. U.S. v. Rockefeller, 221 § 110. ’ §110a. § 111. § 112. § 1138. § 114. § 115. § 116. 117, § 118. § 119. § 120. § 121. § 122. § 123. § 124, § 125. § 126. § 127. § 128. § 129. § 130. § 131. § 132, § 133. § 134, § 135. CHAPTER VIII INDICTMENT AND INFORMATION Necessity for Indictment. Jurisdiction of District Courts Over Criminal Cases. Decisions Regarding Necessity for Indictment. Indictment and Presentment Defined. Information—Nature and Requisites of. Infamous Crime Defined. Caption, Conclusion, Signing and Indorsement of In- dictment. Pe Grand Jury—Description of. Naming Defendant. Naming Third Persons. Time and Dates. Then and There. Continuing Crimes—Alleging Time and Place of. Trial Jury To Be from District Where Crime Com- mitted. Decisions Regarding District in Which Crime Com- mitted. Venue. “Place of Crime in Homicide. Decisions Regarding Allegation of Time and Place in Homicide. : Capital Offenses—Place of Trial. One Offense in Two Districts. Cases Regarding Venue When Crime Extends into Two Districts. Offenses on High Seas—Place of Trial. Offenses on High Seas—Place of Trial, Decisions Re- garding. Place of Trial in Districts Containing Divisions, Decisions Regarding Divisions of Districts. Crimes Assimilated from State Laws. Decisions Regarding Crimes Assimilated from State Laws. / 73 74 § 136. § 137. § 138. § 139. § 140. § 141. § 142. § 143. § 144. § 145. § 146. § 147. § 148. § 149. § 150. § 151. § 152. § 153. § 154. § 155. § 156. § 157. § 158. § 159. § 160. § 161. § 162. § 163. § 164. § 165. § 166. § 167. § 168. § 169. § 170. g 171. § 172. § 173. § 174. § 175. § 176. § 177. FEDERAL CRIMINAL PROCEDURE Construction and Purposes of Indictment. Certainty in the Indictment. Implications from Language of Indictment. Conclusions of Law. Minute Acts. Recital. Conjunctives and Disjunctives. Repetition Avoided by Reference. Abbreviations. Grammatical and Orthographical Errors. Use of Statutory Language. Departmental Regulations. Generic Statutory Terms. Statutory Terms of Similar Meaning. Common Law Terms in Statutes. Statutory Exceptions. Duplicity—Definition and Instances of. Duplicity—Manner of Objecting to. Repugnancy. Joinder and Consolidation of Charges. Decisions Regarding Joinder and Consolidation of Charges. Election of Charges. Joinder of Defendants. Severance. Felonies Defined. Decisions Regarding Definition of Felonies. “‘Unlawfully,’’ ‘‘Feloniously,’? and Other Adverbs. Intent. Knowledge. Collateral Matters. Matters of Inducement. Matters of Evidence. Matters Unknown to Grand Jury. Matters of Defense. Surplusage and Unnecessary Description. Principals Defined. Decisions Regarding Principals and Accessories. Charging of Aiding and Abetting. Causing and Procuring Crime. Attempts. Written Instruments—When Tenor Necessary. Written Instruments—When General Description Suffi- cient. § 111) INDICTMENT AND INFORMATION 75 § 178. Obscene Writings. § 179. Money—Description of. § 180. Property—Description of. § 181. Value—Allegation of. § 110. Indictment—Necessity for—Amendment V, U. S. Constitution. ‘‘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 cases arising under the land or naval forces, in time of war, or public danger.’? 9 Fed. Stats. Anno. 256. §110a. Jurisdiction of district courts over criminal cases.—Sec. 24, Judicial Code. ‘‘The district courts shall have original jurisdiction as follows: Second. Of all crimes and offenses cognizable under the authority of the United States.’’ 1912 Supl. Fed. Stats. Anno. 139. § 111. Decisions regarding necessity for indictment.— United States courts can acquire jurisdiction in criminal cases only by indictment found by a grand jury, or by information filed by the United States attorney in due form.! Under the Fifth amendment to the Constitution the grand jury system was adopted as a safeguard against arbitrary or oppressive action.? _ Federal courts are without jurisdiction to try a person for an infamous crime who has not been indicted, that is, when the indictment is void.* And a person cannot waive his constitutional right to be tried by indictment or presentment.* The constitutional requirement that the defendant is entitled to information in the indictment of the charge 1—Rider v. U. S., 149 Fed. 164. 4—Ex parte McClusky, 40 Fed. 2—U. 9. v.- Wells, 163 Fed. 313. 71. 3—Ex parte Bain, 121 U. 8. 1; 30 L. Ed. 849. Ex parte Wilson, 114 U. 8. 417; 29 L. Ed. 89. 76 FEDERAL CRIMINAL PROCEDURE [§ 111 against him is to be construed in the light of the settled principles of the common law.® Inasmuch as the Constitution has no operation in coun- tries other than the United States, laws prescribing the method of trial of Americans in foreign countries are not invalid even though they fail to observe constitutional requirements as to the rights of the accused.® The limitation in the Constitution requiring prosecu- tion for infamous crime to be founded upon presentment or indictment, applies only to federal cases, and if the state constitution allows infamous crimes to be punished by information they may be so prosecuted.” § 112. Indictment and presentment defined.—The in- -dictment referred to in the Constitution is a presentation to the proper court, by a grand jury duly impaneled, of a charge describing an offense against the law for which the party charged may be punished.® A presentment is an accusation made by the grand jury upon personal knowledge or personal observation of the facts instead of upon the testimony of others.® The indictment is void, if after having been filed in open court, any change, even in respect to an unimpor- tant matter is made in it without resubmission to the grand jury, and all the proceedings upon such indictment are also void. Consent of the accused to the change can- not make such an indictment valid. However, aban- donment as a matter of proof of certain allegations in the indictment does not constitute an amendment or alter- ation of the indictment so as to invalidate it." 5—Dickingon v. U. 8., 159 Fed. 9—McKinney v. U. S., 199 Fed. 801. 25. 6—In re Ross, 140 U. S. 453; 35 10—Ex parte Bain, 121 U. 8. 1; L. Ed. 581. 30 L. Ed. 849. 7—Davis v. Burke, 179 U. 8. 399; 11—U. 8. v. Munday, 211 Fed. 45 L. Ed. 249. ! 536. 8—Ex parte Bain, 121 U. 8. 1; 30 L. Ed. 849. .§ 113] INDICTMENT AND INFORMATION 77 § 113. Information — Nature and requisites of, — An information will lie to charge a crime which is not infamous.” An information should be supported by an affidavit. The oath must be based upon actual knowledge, one on information and belief being insufficient.12 The affidavit in support of an information should conform substan- © tially to the language of the statute in question and should plainly distinguish the offense.* And an affi- davit is insufficient as the basis of an information which does not set out any act done, nor show any knowledge of the facts by affiant.1® Amendments of affidavits made as a part of criminal informations are not allowable.’ The provisions of the Fourth Constitutional Amend- ment that no warrant shall issue except upon probable cause supported by oath or affirmation, does not require an information filed by the district attorney to be verified or supported by affidavit based upon personal knowledge and showing probable cause, unless such information be made the basis of an application for a warrant of arrest. If the purpose of the information is to state the accusa- tion only, the defendant may be charged and tried for a misdemeanor on an information filed by the district attor-. ney not so verified or supported.” The right to file a criminal information is not a pre- rogative of the prosecutor’s office. The district attorney must first have leave of court, and the court before grant- ing leave may require him to bring the accused before 12—Weeks v. U. 8., 216 Fed. 292. _ 18—U. 8. v. Morgan, 222 U. 8. 274; 56 L. Ed. 198. U. S. v. Baumert, 179 Fed. 735. U.S. v. Tureaud, 20 Fed. 621. Johnston v. U. S., 87 Fed. 187. U.S. v. Polite, 35 Fed. 58. 14—U. S. v. Strickland, 25 Fed. 469. 15—Johnston v. U. S. 87 Fed. 187. 16—U. S. v. Tureaud, 20 Fed. 621. 17—Weeks v. U. S., 216 Fed. 292. See also U. 8S. v. Wells, 225 Fed. 320. 78 FEDERAL CRIMINAL PROCEDURE [§ 118 the court to show cause, if any, against the filing of the information.'® And the information should not be filed with the clerk of court and a warrant issued, without the knowledge or leave of court.}® § 114. Infamous crime defined An infamous crime is one punishable by imprisonment in the penitentiary or state prison, whether with or without hard labor.?° Any crime punishable by hard labor is infamous.?! The punishment which may be, not necessarily that which is, inflicted is the determining factor.?? § 115. Caption, conclusion, signing and indorsement of indictment.—The caption is no part of the indictment.?* Amendments to the caption of an indictment are not material.?4 An indictment is not fatally defective for informality in naming the court when the description is substantially correct.25. And the fact that the indictment begins or is entitled in the circuit court although really returned into the district court where all subsequent proceedings are had, is matter of form, cured by Rev. Stats. 1025.” And so an error in the caption of an indictment in stating the term at which it was found, is not ground for quash- ing the indictment, the caption being amendable by the record.?” The caption and commencement of an indictment may 18—U. 8S. v. Smith, 40 Fed. 755. 19—U. S. v. Wells, 225 Fed. 320. 20—U. 8. v. Baumert, 179 Fed. 735. Mackin v. U. 8, 117 U. S. 348; 29 L. Ed. 909. U. 8. v. De Walt, 128 U. S. 393; 32 L. Ed. 485. Ex parte Bain, 121 U. 8. 1; 30 L. Ed. 849. Parkinson v. U. S., 121 U. 8. 281; 30 L. Ed. 959. Stokes v. U. 8. 60 Fed. 597. U.S. v. Sut- ton, 47 Fed. 129. Maxey v. U. S., 207 Fed. 327. In re Claasen, 140 U. 8. 200; 35 L. Ed. 409. 21—Wong Wing v. U. S., 163 U. S. 228; 41 L. Ed. 140. Ex parte Wilson, 114 U. S. 417; 29 L. Ed. 89. 22—Ex parte Wilson, 114 U. 8S. 417; 29 'L. Ed. 89. 23—U. S. v. Nixon, 235 U. 8, 231; 59 L. Hd. 207. Haas v. Henkel, 166 Fed. 621. Gardes v. U. S., 87 Fed. 172. 24—Gardes v. U. S., 87 Fed. 172. 25—Billingsley v. U. S., 178 Fed. 653. Jackson v. U. S., 102 Fed, 473. 26—Ledbetter v. U. S., 108 Fed. 52. 27—U. S. v. Clark, 125 Fed. 92. § 116] INDICTMENT AND INFORMATION 79 be looked to to ascertain the court in which the indict- ment was returned, but cannot be used for the purpose of making more certain any of the essential averments of the charge in the indictment.?® If the language of the indictment constitutes a good charge under one statute the pleading is not invalidated by reason of the fact that the district attorney intended it to apply to a different statute.2® Therefore, indorse- ments of statutes supposed, though erroneously, to sup- port the indictment do not affect its validity.2° However, if the error in naming the statute be incorporated into the body of the indictment the matter becomes material.?! The conclusion ‘‘against the peace and dignity of the United States, and contrary to the form of the statute,’’ is a matter of form and its omission is cured by the pro- visions of Rev. Stats. 1025.22. So also an objection that the indictment is not signed a true bill by the foreman of the grand jury is a defect of form and is waived unless made when the defendant is called upon to plead.** § 116. Grand jury — Description of.— Describing the grand jury as the ‘‘grand inquest’’ in the indictment is a defect, if any, of form alone.*4 The indictment need not state that the grand jurors are residents of the division of the district in which they live.?5 If one juror affirms and the others take oath, the indict- ment may properly aver oath as to all.%¢ 28—U. 8S. v. Howard, 132 *Fed. 325: 29—Williams v. U. S., 168 U. S. 382; 42 L. Bd. 509. 30—U. S. v. Nixon, 235 U. &. 231; 59 L. Ed. 207. Williams v. U. 8., 168 U. S. 382; 42 L. Ed. 509. » Prettyman v. U. S., 180 Fed. 30. Wechsler v. U. S., 158 Fed. 579. Smith v. U. 8., 208 Fed. 131. 31—Rogers v. U. S., 180 Fed. 54. Wechsler v. U. 8., 158 Fed. 579. Stubbs v. U. S., 111 Fed. 366. 32—Frisbie v. U. S., 157 U. 8. 160; 39 L. Ed. 657. 33—Frisbie v. U. S., 157 U. S. 160; 39 L. Ed. 657. 34—Geiger v. U. 8., 162 Fed. 844, 35—May v. U. S., 199 Fed. 42. 36—Bram v. U. 8., 168 U. 8. 532; 42 L. Ed. 568. 80 FEDERAL CRIMINAL PROCEDURE [$117 §117. Naming defendant.—An indictment charging ‘‘John Doe, Chinese person, whose true name is to the grand jurors aforesaid unknown’’ with an offense, shows on its face that the name John Doe is fictiticus only and that the grand jury are unable to identify the intended person, and is, therefore, void for insufficiency of descrip- tion.*7 An indictment giving initials only of defendant’s Chris- tian name is subject, to plea in abatement unless the grand jury adds that the name is unknown to them otherwise than as set forth.*8 Where a formal defect in a defendant’s name in the indictment is not urged before or at trial it cannot be raised in the appellate court.®° A plea of misnomer must allege that defendant was not known or called by the name given in the indictment and that he has theretofore been known and called by the name which he claims as his true name.*° § 118. Naming third persons.—Third persons referred to in the indictment should be set forth by name, or if unknown, the indictment should so state.‘ A person may be described in the indictment by the name accorded him by reputation and if choice is made between several names the one should be selected which the person bore at the time named in the indictment.** Where the indictment refers to an association or com- pany, it should state whether the same is a partnership (if so, giving the names of partners) or a corporation.** A verbal variance in corporate names is held to be unsubstantial where no injury is shown to have resulted 37—U. S. v. Doe, 127 Fed. 982. 41—U. S. v. Simmons, 96 U. 8. 38—U. 8. v. Upham, 43 Fed. 68. 360; 24 L. Ed. 819. 39—Holmgren v. U. 8., 217 U. 8. 42—Bird v. U. S., 187 U. 8. 119; 500; 54 L. Ed. 861. 47 L. Ed. 100. 40—U. 8. v. Janes, 74 Fed. 543. 43—Larkin v. U. 8., 107 Fed. 697. § 119] INDICTMENT AND INFORMATION 81 therefrom to defendant.*4 And so the omission of the words ‘‘of Exeter’? from the corporate name of a bank in an indictment is not prejudicial error where the indict- ment clearly identified the bank as being ‘‘of Exeter.’’ A variance in names cannot prejudice defendant if the allegation of the indictment and the proof so correspond that defendant is informed of the charge and can protect himself from a second prosecution-for the same offense, it being held that there was not a fatal variance between the names Opal Clark and Jeanette Clark.*® Where the name proved is idem sonans with that stated in the indictment the variance is immaterial: thus, Faust for Foust, Canady for Kennedy, and Krowder for Crower.*" In conspiracy the names of all persons engaged in the conspiracy is not an essential part of the description of the offense and the omission of a name from the indict- ment even though it be known to the grand jury, is not a fatal variance with the allegation that such name is unknown especially if the name and its connection is set - forth in another part of the indictment.*® § 119. Time and dates.—Designation of the year by Arabic numerals is sufficient. The old reason for using ' the words ‘‘the year of our Lord,’’ is obsolete, namely the laying of dates by the year of the reigning monarch.*® Where time is not of the essence of the offense the date of the offense is material only with reference to the stat- ute of limitations and to show that the crime was com- mitted prior to the return of the indictment.” 44—Hoke v. U. 8., 227 U. 8. 308; Fed. 942. ‘Alexis v. U. S., 129 Fed. 57 L. Ed. 523. 60. 45—Putnam v. U. 8., 162 U. 8. 48—Jones v. U. S., 179 Fed. 584. 687; 40 L. Ed. 1118. 49—Peters v. U. 8., 94 Fed. 127. 46—Bennett v. U. 8., 227 U. S. 50—Hardy v. U. S., 186 U. 8. 383; 57 L. Ed. 531. Bennett v. 224; 46 L. Ed. 1137. U.S. v. Lair, U. 8., 194 Fed. 630. 195 Fed. 47. Hume v. U. S., 118 47—Faust v. U. §., 168 U. 8.452; Fed. 689. Tyler v. U. S., 106 Fed. 41 L. Ed. 224. James v. U.8.,170 137. Bradford v. U. 8. 152 Fed. 82 FEDERAL CRIMINAL PROCEDURE [§ 119 An allegation that a crime was committed ‘‘on or about’’ a day named is sufficient except where time is an ingredient of the offense,®+ and so an indictment charging that the offense was committed on the day of Decem- ber in a given year, while defective, is not substantially so under R. 8S. 1025, the date not being of the essence of the offense.®? Even perjury need not be proved on the date laid in the indictment except where committed in reference to records, depositions or affidavits, when if the date of record differs from that in the indictment it is construed as a different record and a variance occurs.*? § 120. Then and there.—The words ‘‘then and there,”’ merely carry forward prior averments of time and place but otherwise add nothing to the description of th offense.54 Where a crime consists of several elements existing contemporaneously the indictment must in the averment of time show that such elements were coexisting.®® § 121. Continuing crimes— Allegation of time and place.—A continuing crime is a continuous unlawful act or a series of acts set on foot by a single impulse and ‘operated by an intermittent force, however long it may occupy, and where such an act or series of acts runs through several jurisdictions the offense is committed and cognizable in each and though complete in the juris- - diction where first committed it may continue, be com- mitted and be punished in another jurisdiction.®® A charge that a conspiracy was formed ten years before 616. Bridgeman v. U. 8., 140 Fed. 500; 40 L. Ed. 786. U.S. v. Mat- 577. thews, 68 Fed. 880. 51—U. 8S. v. McKinley, 127 Fed. 54—Shaw v. U. S., 165 Fed. 174. 168. 55—U. S. v. Simmons, 96 U. 8. 52—U. S. v. Howard, 132 Fed. 360; 24 L. Ed. 819. : 325. 56—Armour Packing Company v. 53—Matthews v. U. 8. 161 U.S. U.S, 153 Fed. 1. § 123] INDICTMENT AND INFORMATION , 83 ‘but was in continuous operation and process of execution up to a date within the statute of limitations, is good.>7 § 122. Trial jury to be from district where crime com- mitted Amendment VI, U. S. Constitution. ‘‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been com- mitted, which district shall have been previously ascer- tained by law, . . . .’’ 9 Fed. Stats. Anno. 324. § 123. Decisions regarding district in which crime com- mitted—The Sixth Amendment to the Constitution requiring trial by jury of the district within which the crime was committed does not refer to territory outside the states under the jurisdiction of the United States.5§ The defendant is entitled to trial at the place where the crime was committed,®® and this is true also of a corporation defendant under the Sixth Constitutional Amendment,® and a defendant cannot object to being tried in the place where the offense was committed Tathex than the place of his residence. Acts done outside a jurisdiction but taking effect within it are punishable therein.® Where a continuous offense is committed in more than one district, the Sixth Amendment does not prevent trial in any of those districts.** Similarly a conspiracy charge may be prosecuted in any district where an overt act has been committed.®* It has been held that under Rev. Stats. 716 (now sec- tion 262 of the Judicial Code, 1912 Supl. Fed. Stats. Anno. 57—U. S. v. Eccles, 181 Fed. 906. 62—Strassheim v. Dailey, 221 U. 58—Cook v. U. 8., 1388 U. 8.157; 8. 280; 55 L. Ed. 735. 34 L. Ed. 906. 63—Hyde v. U. S., 225 U. 8. 347; 59—Davis v. U. S., 104 Fed. 136. 56 L. Ed. 1114. Armour Packing 60—John Gund Brewing Co. v. Co. v. U. 8. 209 U. S. 56; 52 L. U. S., 204 Fed. 17. Ed. 681. 61—Haas v. Henkel, 216 U. 8. 64—Robinson v. U. S., 172 Fed. 462; 54 L. Ed. 569. 105. Byrne’s Crim. Proc.—8 84 FEDERAL CRIMINAL PROCEDURE [§ 123 241) the court in the district where the indictment is re- turned has power to issue a writ conformably‘to the state statutes and have the writ served on a nonresident cor- porate defendant in a district other than that in which the indictment is returned.®* § 124. Venue.—Venue may be laid as the district over which the court has jurisdiction.** But the place of trial has no necessary connection with territorial jurisdiction, hence, under a statute providing specifically for the place of trial, but not limiting the territorial jurisdiction of the court, a grand jury at one place can indict for a crime committed elsewhere and the trial can be held at such other place.®7 Venue may be laid at the place where the crime was committed by one of the defendants on behalf of all even though the others were not there present.®® The requirements of Amendment VI to the Constitu- tion are satisfied by laying the venue of a criminal con- spiracy at the place where an overt act was performed, under Sec. 42, Judicial Code (see Sec. 128 infra) and under that section a criminal conspiracy may be prose- cuted at either the place of its formation or the place where an overt act was performed. 69 And the exact place of the formation of a conspiracy need not be stated in the indictment if the venue is laid in the place where an overt act was committed.”? But an indictment alleging that defendants conspired at Washington, D. C., and at Norfolk, Va., has been held defective in failing to make it clear where the offense was committed.” § 125. Place of crime in homicide.—Sec. 336, Criminal Code. ‘‘In all cases of murder or manslaughter, the 65—John Gund Brewing Co. v. 68—U. 8. v. Wells, 192 Fed. 870. U. 8., 204 Fed. 17. 69—Hyde v. U. 8., 225 U. 8. 347; 66—Bridgeman v. U. 8., 140 Fed. 56 L. Ed. 1114. 577. 70—Brown v. Elliott, 225 U. S. 67—Logan v. U. 8., 144 U. 8. 392; 56 L. Ed. 1136. 263; 36 L. Ed. 429. 71—U. 8. v. Marx, 122 Fed. 964. § 129] INDICTMENT AND INFORMATION 85 crime shall be deemed to have been committed at the place where the injury was inflicted, or the poison admin- istered, or other means employed which caused the death, without regard to the place where the death occurs.’’ 1909 Supl. Fed. Stats. Anno. 495. § 126. Decisions regarding allegation of time and place in homicide——An indictment for murder which fails to aver the place of death is fatally defective. So also if the indictment be found more than a year and a day after the death and does not state the time of death.7® § 127. Capital offenses, place of trial—Sec. 40, Judi- cial Code. ‘‘The trial of offenses punishable with death ‘shall be had in the county where the offense was com- mitted, where that can be done without great incon- venience.’’ 1912 Supl. Fed. Stats. Anno. 151. § 128. One offense in two districts.—Sec. 42, Judicial Code. ‘‘When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein.’’ 1912 Supl. Fed. Stats. Anno. 151. § 129. Decisions regarding venue when crime extends into two districts.—Under Section 42 of the Judicial Code offenses begun in one district and completed in another may be tried in either.”4 The venue of a criminal conspiracy may be laid as the place where an overt act has been performed, as under this section venue may be either the place of the forma- 73—Ball v. U. S., 140 U. 8.118; In re Palliser, 136 U. S. 257; 34 L. 35 L. Ed. 377. : Ed. 514. U.S. v. Thayer, 209 U.S. 74—Burton v. U. S., 202 U. S. 39; 52 L. Ed. 673. Putnam v. U. 344; 50 L. Ed. 1057. Benson v. S., 162 U. S. 687; 40 L. Ed. 1118. Henkel, 198 U. S. 1; 49 L. Ed. 919. Bridgeman v. U. S., 140 Fed. 577. 86 FEDERAL CRIMINAL PROCEDURE [§ 129 tion of a conspiracy or the place of the commission of an overt act.75 § 130. Place of trial of offenses on high seas.—Sec. 41, Judicial Code. ‘‘The trial of all offenses committed upon the high seas, or elsewhere out of the jurisdiction of any particular state or district, shall be in the district where the offender is found or into which he is first brought.’’ 1912 Supl. Fed. Stats. Anno. 151. § 131. Decisions regarding place of trial of offenses on high seas.—Crimes against the laws of the United States outside the limits of a state are not local but may be tried in such place as Congress shall designate by law. If committed within a state they are local and must be tried in the district in which committed.”® Under Section 41 of the Judicial Code an offender must be tried in the district where he has been apprehended unless taken at sea, in which case he is to be tried in the district into which he is first brought.” For an appropriate averment where the crime is com- mitted on the high seas outside the jurisdiction of any state, see the case of Anderson v. U. 8., 170 U.S. 481, 42 L. Ed. 1116. The open waters of the great lakes are ‘‘high seas,”’ within the meaning of the statute.7* But a point on the waters of the ocean within a marine league of the coast of New J ersey being within the state and under New Jersey laws is, therefore, within the district of New Jersey, and mandir the Sixth Constitutional Amendment a criminal offense against the laws of the United States committed at such point can be prosecuted in that district only.”® 75—Hyde v. U. 8., 225 U. 8. 347; 77—Kerr v. Shine, 136 Fed. 61. 56 L. Ed. 1114. 78—U. 8. v. Rogers, 150 U. 8. 76—U. §. v. Jackalow, 66 U. S. 249; 37 L. Ed. 1071. (1 Black) 484; 17 L. Ed. 225. U.S. 79—U. S. v. Newark Meadow v. Dawson, 15 How 467; 14 L. Ed. Imp. Co., 173 Fed. 426. 775. $134] . INDICTMENT AND INFORMATION 87 Under Section 272 of the Criminal Code (1909 Supl. Fed. Stats. Anno. 481), offenses committed on the high seas or guano islands of the United States may be pros- ecuted in the district to which the offender is first brought.®° § 132. Place of trial in districts containing divisions.— Sec. 53, Judicial Code. ‘‘When a district contains more than one division . . . all prosecutions for crimes or offenses shall be had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district. When a transfer is ordered by the court or judge, all the papers in the case, or certified copies thereof, shall be transmitted by the clerk, under the seal of court, to the division to which the case is so ordered transferred; and thereupon the cause shall be proceeded with in said division in the same manner as if the offense had been committed therein.’’ 1912 Supl. Fed. Stats. Anno. 154. § 133. Decisions regarding divisions of districts. — Though a district be composed of two or more divisions the grand and petit jurors need not be drawn from the division in which the crime was committed unless the statutes specifically so require.* § 134. Crimes assimilated from state laws.—Sec. 289, Criminal Code. ‘‘Whoever, within the territorial limits of any State, organized Territory, or District, but within or upon any of the places now existing or hereafter reserved or acquired, described in section two hundred and seventy-two of this Act, shall do or omit the doing of any act or thing which is not made penal by any law of Congress, but which if committed or omitted within the 80—Jones v. U. 8., 137 U. 8. 202; 81—Clement v. U. S., 149 Fed. 34 L. Ed. 691. 305. 88 FEDERAL CRIMINAL PROCEDURE [§ 184 jurisdiction of the State, Territory, or District in which such place is situated, by the laws thereof now in force would be penal, shall be deemed guilty of a like offense and be subject to a like punishment; and every such State, Territorial, or District law shall, for the purposes of this section, continue in force, notwithstanding any subsequent repeal or amendment thereof by any such State, Territory, or District.’? 1909 Supl. Fed. Stats. Anno. 485. Sec. 272, Criminal Code. ‘‘The crimes and offenses defined in this chapter shall be punished as herein pre- scribed: “‘First. When committed upon the high seas, or on any other waters within the admiralty and maritime jurisdic- tion of the United States and out of the jurisdiction of any particular State, or when committed within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State on board any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, or District thereof. ‘‘Second. When committed upon any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, namely: Lake Superior, Lake Michigan, Lake Huron, Lake Saint Clair, Lake Erie, Lake Ontario, or any of the waters connecting any of said lakes, or upon the River Saint Lawrence where the same constitutes the international boundary line. ‘Third. When committed within or on any lands reserved or acquired for the exclusive use of the United States, and under the exclusive jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dock-yard, or other needful building. § 136] INDICTMENT AND INFORMATION 89 ‘Fourth. On any island, rock, or key, containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States.’”? 1909 Supl. Fed. Stats. Anno. 481. § 135. Decisions regarding crimes assimilated from _ state laws.—Offenses assimilated as crimes under United States laws by Section 289 of the Criminal Code are pun- ishable only in the way and to the extent possible under the state laws. An allegation that a certain ae reservation was ‘a place under the exclusive jurisdiction of the United States,’’ sufficiently charges that fact.®* To give a federal court jurisdiction of a criminal offense committed in a fort or on a military reservation, such fort or reservation must have been established by law as contemplated by constitutional article 1 of section 8, either by purchase with the consent of the legislature of the State.or by reservation of public lands therefor by agreement with the State at the time of its admission, and exclusive jurisdiction over the same must have been reserved to the United States either by express words or by necessary implication.®¢ . § 136. Construction and purposes of indictment.—The language of the indictment should not be strained either to convict or acquit the accused. It should receive a reasonable and fair construction to accomplish on the one hand the indispensable purpose of fairly apprising the defendant of the charge against him so that he may intelligently prepare to meet it and be enabled to make use of a conviction or acquittal to protect himself against a second prosecution for the same offense; and on the 82—U. S. v. Press Publishing 84—U. 8. v. Tully, 140 Fed. 899. Company, 219 U. 8.1; 55 L. Ed, U.S. v. Tucker, 122 Fed. 518. U.S. 65. vy. Bateman, 34 Fed. 86. 83—Holt v. U. 8., 218 U. 8. 245; 54 L. Ed. 1021. 90 FEDERAL CRIMINAL PROCEDURE [§ 136 other hand to enable the government without unnecessary embarrassment to effectually enforce its laws and bring the guilty to punishment.*®® The objects for which an indictment is drawn are usu- ally classified as follows: (a) in order to identify the charge; ** (b) that the defendant may plead the indict- ment in bar of a second prosecution for the same offense; &7 (c) to enable the defendant to prepare for his defense or to demur to the indictment if he has an opinion that no offense is set forth; ** (d) to enable the court after conviction to decide whether the facts charged are suffi- cient to support the judgment.®? § 137. Certainty in the indictment.—The indictment should set forth accurately and clearly every ingredient of which the offense is composed.°° ; A crime should not be charged by way of inference but directly.®1 A crime is made up of acts and intent and these must be set forth with reasonable particularity of time and place. The indictment should clearly show that the offense charged is one of federal cognizance ** and the accused should be informed by the indictment of the precise 85—Clement v. U. S., 149 Fed. 305. 86—Ex parte Bain, 121 U. S. 1; 30 L. Ed. 849. 87—Bartell v. U. S., 227 U. 8. 427; 57 L. Ed. 583. U. 8. v. Hess, 124 U. 8. 483; 31 L. Ed. 516. Rich- ardson v. U. S., 181 Fed. 1. Ar- mour Packing Co. v. U. 8., 153 Fed. 1. Miller v. U. S., 133 Fed. 337, 88—U. 8. v. Hess, 124 U. 8. 483; 31 L. Ed. 516. Richardson v. U. &., 181 Fed. 1. U. 8. v. Cruikshank, 92 U. 8. 548; 23 L. Ed. 588. Armour Packing Co. v. U. S., 153 Fed. 1. Miller v. U. 8., 133 Fed. 337. Dow v. U. S., 82 Fed, 904. 89—Armour Packing Co. v. U. &., 153 Fed. 1. Miller v. U. S&., 183 Fed. 337. U. S. v. Cruikshank, 92 U. S. 543; 23 L. Ed. 588. 90—U. S. v. Cruikshank, 92 U. S. 543; 23 L. Ed. 588. 91—Johnston v. U. S., 87 Fed. 187. MeKenna v. U. S., 127 Fed. 88. Bartlett v. U. S., 106 Fed. 884. 92—U. 8. v. Cruikshank, 92 U. 8S. 543; 23 L. Ed. 588. 93—Blitz v. U. S., 153 U. 8. 308; 38 L. Ed. 725. \ § 138] INDICTMENT AND INFORMATION 91 nature of the charge against him, and the indictment should enable the court to say whether the facts set forth are sufficient in law to support a conviction.®® However, only the gist of the offense is necessary. But an indictment which does not sufficiently individu- alize the offense so that the defendant may be apprised of the charge and also prove former conviction or acquit- tal by it is fatally defective.%” The test is not whether the indictment might have been made more certain but whether it contains every element of the offense and sufficiently apprises the defendant of what he must be prepared to meet and whether it will also enable him to sustain a plea of former acquittal or conviction.*® § 138. Implications from language of indictment. — Expressions in the indictment should be read with their natural implications so that ‘‘sold’’ imports payment of price; *® a charge of embezzling funds in defendant’s hands as postmaster imports his official position as post- master; 1°° ‘‘belonging to’’ sufficiently. alleges owner- ship; 1°! ‘‘entry’’ imports all the acts necessary to acquire title to public lands under the law.1°? Where a statute uses words or terms of art that have a technical meaning the same terms should be used in the indictment as expressing most aptly the nature of the offense ?°? and an indictment treating of technical 94—-Blitz v. U. 8., 153 U. 8. 308; 38 L. Ed. 725. Evans v. U. 8., 153 U. S. 584; 38 L. Ed. 830. 95—Brown v. U. S., 143 Fed. 60. 96—Perrin v. U. S., 169 Fed. 17. 97—Floren v. U. S., 186 Fed. 961. 98—Harper v. U. S8., 170 Fed. 385. Cochran v. U. S., 157 U. S. 286; 39 L. Ed. 704. Hauger v. U. S., 173 Fed. 54. Evans v. U. 8., 153 U.S, 584; 38 L. Ed, 830. N.Y. C. & H. R. RB. Co. v. U. S., 212 U. 8. 481; 53 L. Ed. 613, Batchelor v. U. S&., 156 U. S. 426; 39 L. Ed. 478. Rogers v. U. 8, 180 Fed. 54, Smith v. U. S., 157 Fed. 721. Baskin v. U. 8., 209 Fed. 740. 99—Booth v. U. S., 197 Fed. 283. 100—Corbin v. U. 8., 205 Fed. 278. 101—Dimmick v. U. S., 135 Fed. 257. 102—Bradford v. U. S., 152 Fed. 616. Stearns v. U. S., 152 Fed. 901. 103—-U. S. v. Staats, 8 How. 41; 12 L. Ed. 979. 92 FEDERAL CRIMINAL PROCEDURE [§ 138 matters such as bookkeeping entries in a bank’s books need only be intelligible to those versed in such matters and not necessarily to the public generally.*™ § 139. Conclusions of law.—The indictment ordinarily should not charge conclusions of law but facts should be alleged so that the face of the indictment shows an unlawful act 1 and_so where the statute uses words which state conclusions of law the indictment is defective unless it alleges facts in addition to such conclusions, for exam- ple, where the indictment charges the importations of diamonds ‘‘contrary to law.’’ ? However, it has been held that an allegation that a letter is obscene, lewd and lascivious is one of fact * while on the other hand under a statute requiring notice to be given to ‘‘proper officers’? of railroads the use of the term ‘‘proper officers’’ in the indictment was held a con- clusion of law, as was also the expression ‘‘duly and legally established’’ referring to the establishing of . departmental rules.* § 140. Minute acts—Crime consisting of—Where an offense, such as fitting out a ship for the slave trade, is made up of a number of minute acts which cannot be incorporated upon the record without great prolixity and inconvenience and the danger of variance they need not be set forth in the indictment.® § 141. Recital—Recital in an indictment is a defect of form which should be objected to before trial.® While the main charges of guilt should be directly made and should not be cast into the participial form a 104—U. 8S. v. Britton, 107 U. 8. 3—Konda v. U. S., 166 Fed. 91. 655; 27 L. Ed. 520. 4—U. 8. v. El Paso & N. E. B. RB. 1—U. S. v. Nixon, 235 U. 8. 231; Co., 178 Fed. 846. 59 L. Ed. 207. U. 8. v. John Rear- 5_U. 8. v. Gooding, 25\U. 8. don & Sons Co., 191 Fed. 454. (12 Wheat.) 461; 6 L. Hd. 693. 2—Keck v. U. 8, 172 U.S. 435; 6—Dyar v. U. S., 186 Fed. 614. 43 L. Ed. 505. ' : § 143] INDICTMENT AND INFORMATION 93 charge that defendant committed a crime by doing so and so is not objectionable, at least in misdemeanors and is in accord with common practice? and an allegation that defendant had devised a fraudulent scheme is a sufficient statement that he did devise it so as not to be objection- able as recital.® § 142. Conjunctives and disjunctives.— The common law rule was that an indictment charging defendant in the disjunctive with one of two offenses was wholly insuf- ficient because it did not give the defendant definite information of the crime with which he was charged and could not be pleaded in bar of a subsequent prosecution for the same offense.® A more modern rule, however, and it is thought a better one, is that the conjunctive is merely preferable to the disjunctive and that the use of the latter is not necessarily fatal.?° Under a statute denouncing several things as criminal, the -pleader may connect them by the conjunctive ‘Cand’? 11 and an allegation that crime’was to be effected ‘¢in the manner following, that is to say’’ is not objection- able as a disjunctive statement.’” § 143. Repetition avoided by reference.—Matter set forth in full in one count of an indictment may thereafter be incorporated in subsequent counts by reference, the reference, however, should be sufficiently full to ade- quately incorporate the matter referred to.1* One part of a count is not aided by another distinct portion even of the same count, unless proper reference is made, thus, in the absence of such reference, a defective description 7-—Pooler v. U. 8., 127 Fed. 509. 13—Blitz v. U. 8., 153 U. 8. 308; §—Wilson v. U. &., 190 Fed. 427. 38 L. Ed. 725. Crain v. U. S., 162 9—Bishop’s New Crim. Pro, U.S. 625; 40 L. Ed. 1097. Foster vol. 2, sec. 585. v. U. §., 178 Fed. 165. Bartholo- 10—Stockslager v. U. 8.,116 Fed. mew v. U. 8, 177 Fed. 902. Peters 590. vd v. U. 8. 94 Fed. 127. Browne v. 11—Ackley v. U. 8., 200 Fed. 217. U. S., 145 Fed. 1. Bridgeman v. 12—Browne y. U. 8., 145 Fed. 1. U. 8. 140 Fed. 577. 94 FEDERAL CRIMINAL PROCEDURE [§ 143 of a conspiracy is not aided by the allegations of the overt acts.1* The invalidity of the count to which reference is made does not affect the validity of the count making reference | as each count is practically a separate indictment. § 144. Abbreviations.—Abbreviations in the indictment of words employed by men of science or art are not proper without full explanation of their meaning in ordinary language.?® § 145. Grammatical and orthographical errors——Gram- matical errors are not fatal if the indictment sets forth the substantial elements of the offense sufficiently well ‘to advise the accused of the charge against him.’7 So also the illogical arrangement of the indictment as by alleging the intent and the criminal act in different parts of the pleading is a defect of form only.’® Using the word ‘‘clerk’’ instead of ‘‘court’’ in describ- ing the officer before whom perjury was committed has been held immaterial as it does not mislead the defend- * ant.?® ' Mistakes or peculiarities in spelling are not material when the meaning is clear.*° § 146. Use of statutory language.—Where a statute describes the offense fully it is sufficient to follow the language of the statute in the indictment.?1_ So also where an offense is purely statutory having no relation to the common law, but the accused must be apprised by 14—Joplin Mercantile Co. v. U. 17—Hume vy. U. 8., 118 Fed. 689. S.; 236 U. 8. 5381; 59 L. Ed. 705. 18—Stockslager v. U. §., 116 Fed. 15—Rice v. Ames, 180 U. 8. 371; 590. 45 L. Ed. 577. Selvester v. U. S., 19—Hogue v. U. 8., 192 Fed. 918. 170 U. 8. 262; 42 L. Ed. 1029. Blitz 20—McCarty v. U. 8, 101 Fed. v. U. S., 153 U. 8. 308; 38 L. Ed. = 113. 725. Crain v. U. S., 162 U. 8. 625; 21—Pounds v. U. 8., 171 U. 8. 35; 40 L. Ed. 1097. 43 L. Ed. 62. Grey v. U. 8, 172 16—U. 8. v. Reichert, 32 Fed. Fed. 101. Thompson v. U. S., 202 142. Fed. 401. Potter v. U. S., 155 U.S. § 146] INDICTMENT AND INFORMATION 95 the indictment with reasonable certainty of the nature of the accusation against him so that he may prepare his defense and plead the judgment in bar of a subsequent prosecution for the same offense.?2 Likewise, an indictment in the words of the statute is only good where the statute fully sets forth all the ele- ments of the offense.2* And if there be any ambiguity or uncertainty in the statute the pleader should draw a charge coming within the substance and effect of the enactment.** So where the wording of the statute is broader than its meaning (as in prohibiting the uttering of counterfeit money without mentioning the element of knowledge) the indictment must go farther than the statute and set forth all the elements of the offense both ~ express and implied.?® An indictment need not follow the language of the statute if the facts averred bring the charge within the substance and true meaning of the statute,?* so that it has been held that the averment of facts creating a strong presumption of fraudulent intent make immaterial the omission from the indictment of the words ‘‘intent to defraud.’’ 27 . Statutes unless they are private ones need not be recited in the indictment ** but if the indictment under- takes to set forth a statute a material variance in so doing will be fatal.?° 438; 39 L. Hd. 214. Sims v. U.S, 121 Fed. 515. Dimmick v. U.8., 121 Fed. 638. Peters v. U. S., 94 Fed. 127. Wright v. U. 8., 108 Fed. 805. Hardesty v. U. 8., 168 Fed. 25. 22—U. 8. v. Simmons, 96 U. 8S. 360; 24 L. Ed. 819. Cannon v. U. 8., 116 U. S. 55; 29 L. Ed. 561. 23—Martin v. U. 8., 168 Fed. 198. Jones v. U. 8., 27 Fed. 447. 24—U. 8S. v. Staats, 8 How. 41; 12 L. Ed. 979. U.S. v. Campbell, 16 Fed. 238. U.S. v. Carll, 105 U, S. 612; 26 L. Ed. 1135. Martin v. U. 8. 168 Fed. 198. Jones v. U. S., 27 Fed. 447. U.S. v. Hess, 124 U. S. 483; 31 L. Ed. 516. 25—U. §S. v. Carll, 105 U. S. 612; 26 L. Ed. 1135. 26—Lemon v. U. S., 164 Fed. 953, Rinker v. U. S., 151 Fed. 755. 27—Bridgeman v. U. S., 140 Fed. | 28—Bridgeman v. U. 8., 140 Fed. 577. 29—U. 8. v. Goodwin, 20 Fed. 237. 96 FEDERAL CRIMINAL PROCEDURE [§ 147 § 147. Departmental regulations.—Similar to statutory enactments are departmental regulations which when authorized by statute have the force of law.®° Such regulations receive judicial notice and therefore need not be set forth in the indictment.*4 § 148. Generic statutory terms.— Where the statute denounces the offense in general words the indictment should not rely on them but should set forth particulars and should use specific language; *2 and so under a statute forbidding conspiracy to deprive of civil rights, the indictment must specify the particular right referred to,?* and under a statute applying only to certain classes of persons such as ‘‘manufacturers of oleomargarine,’’ the indictment must bring defendant within such class.* But the fact that a person belongs not only to the class mentioned in the indictment but also to another class does not constitute a variance.*® And where a statute refers to matters of description by the word ‘‘such,’’ the indictment must set forth the matters referred to specifically.® § 149. Statutory terms of similar meaning.— Where the statute first uses a narrow word then a broader one and so continues until there is a certainty that the entire pur- pose of the statute has been accomplished, the broad words do not exclude the narrower preceding ones, so that, for instance, the broad charge of misapplication 30—Haas v. Henkel, 216 U. 8. 638. Wilkins v. U. 8., 96 Fed. 837. 462; 54 L. Ed. 569. Van Gesner v. U. 8., 153 Fed. 46. Wilkins v. U. 8., 96 Fed. 837. Bruce v. U. S., 202 Fed. 98. U.S. v. Grimaud, 220 U. 8. 506; 55 L. Ed. 563. Rupert v. U. 8., 181 Fed. 87. 31—Caha v. U. 8., 152 U. 8. 211; 38 L. Ed. 418. U.S. v. Moody, 164 Fed. 269. Van Gesner v. U. 8., 153 Fed. 46. Sprinkle v. U. S., 141 Fed. 811. Dimmick v. U. 8., 121 Fed. 32—U. 8. v. Hess, 124 U. S. 483; 31 L. Ed. 516. Terry v. U. S., 120 Fed. 483. U. 8. v. Cruikshank, 92 U.S. 543; 23 L. Ed. 588. 33—McKenna v. U. §S., 127 Fed. 88. 34—Morris v. U. 8., 168 Fed. 682. 35—Mulligan v. U. S., 120 Fed. 98. : 36—U. S. v. Gooding, 25 U.S. (12 Wheat.) 461; 6 L. Ed. 693. 0 A OF § 151] INDICTMENT AND INFORMATION 97 under the national banking laws may be sustained by the narrower proof of embezzlement.*? Where the statute uses terms of equivalent and con- vertible meaning as ‘‘obscene”’ and ‘‘of an indecent char- acter,’’ the indictment may properly use either and need not use both.*8 § 150. Common law terms in statutes.— Where a crime is denounced only by its common law name the indict- ment should contain averments covering the common law ingredients.®® Federal statutes cognate with state statutes or with the common law by analogy take with them the state or common law pleadings.*© So that when Congress adopts or creates a common law offense the courts may properly ~ look to the common law for the true meaning and defini- bob dog tion thereof in the absence of a clear definition in the statute.*+ ‘ Words whose meanings are fixed and definite at com- mon law need not be amplified when used in the indict- ment, i. e., such a word as ‘‘convert.’’ #2 Where, however, it is apparent from the context of the statute that a common law term is not used in its common law meaning, it will be given the meaning which it must have to effect the object of the statute and will not be restricted to a technical meaning that would defeat that object.‘ There are no common law offenses in United States jurisdiction, all offenses being created by statute.** § 151. Statutory exceptions—Where a statute describ- ing an offense contains an exception in the enacting clause 37—Jewett v. U. S., 100 Fed. 832; see also U. S. v. Munday, 222 U. 8. 175; 56 L. Ed. 149. 38—Timmons v. U. 8., 85 Fed. 204. 39—Ackley v. U. 8., 200 Fed. 217. But see Thompson v. U. 8., 202 Fed. 401. t .40—Blake v. U. S., 71 Fed. 286. 41—In re Greene, 52 Fed. 104. 42—Dickinson v. U. S., 159 Fed. 801. 48—U. S. v. Stone, 8 Fed. 232. 44—U. S. v. Eaton, 144 U. S. 677; 36 L, Hd. 591. U. 8. v. Dietrich, 126 Fed. 676. 98 FEDERAL CRIMINAL PROCEDURE [§ 151 which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accu- rately and clearly described without the exception, the indictment on such statute must allege enough to show that the defendant is not within the exception; but if the definition of the offense is so separable from the exception that the ingredients of the crime may be accurately and clearly stated without reference to the exception, an indictment may omit such reference, as then it is a matter of defense.*® It is the nature of the exception rather than its mere position in the statute which determines whether or not it should be negatived in the indictment.** And an indict- ment charging conspiracy to commit an offense need not “negative exceptions found in the statute defining the latter offense.*7 It is ordinarily sufficient to negative the exception in the words of the statute.*® § 152. Duplicity—Definition and instances of.—A con- viction upon a count charging two distinct offenses against two separate statutes, punishable differently and requiring evidence of a different character to justify a conviction will be reversed.*® But it has been held that duplicity is cured by verdict.5° And that it cannot be raised on motion in arrest of judgment.** Where one criminal act has several different articles as its objects, it is not duplicity to include all such objects in a single count, as to charge the depositing of a number of obscene books for mailing and delivery to different 45—U. 8. v. Cook, 84 U. 8. (17 Wall.) 168; 21 L. Ed. 538. U.S. v. Britton, 107 U. 8. 655; 27 L. Ed. 520. Sims v. U. &., 121 Fed. 515. 46—Shelp v. U. S., 81 Fed. 694. 47—U. S. v. Stone, 135 Fed. 392. 48—Lillis v. U. S., 190 Fed. 530, (referring to the use of the dis- junctive). 49—Ammerman v. U. S., 216 Fed. 326. Allison v. U. S., 216 Fed. 329. Lehman v. U. S., 127 Fed. 41. 50—Durland v. U. S., 161 U. S. 306; 40 L. Ed. 709. 51—Morgan v. U.S., 148 Fed. 189. See also Pooler v. U. S., 127 Fed. 509. U.S. v. Bayaud, 16 Fed. 376. § 152] INDICTMENT AND INFORMATION 99 individuals; * and there is no variance even though the proof falls short of the number stated in the indictment, namely, by charging illegal transportation of two women and proving it as to but one.®? And where the statute prohibits several distinct modes of accomplishing a gen- eral object, the doing of all sudh things may be charged in one count without duplicity; °4 so also when either of two acts is indictable and they are connected with the same general offense and subject to the same measure of punishment they may be charged in one count as one offense; *° so also it is not duplicity to charge the doing of a prohibited act with two characteristics, either of ' which bring it within the statute, such as mailing a writ- ing obscene in itself and which also gives prohibited information.°* Likewise several different intents may be charged in connection with one act without rendering the indictment double,*” eepesially if no prejudice results to defendant.®® In conspiracy the charging of more than one overt act does not constitute duplicity.°° Likewise a charge of one conspiracy to commit two different offenses is not double.® An indictment for conspiracy which shows that the completed offense charged as the object of the conspiracy was in fact committed, is not bad for duplicity.*+ Nor is proof of the commission of the completed offense a variance on trial for conspiracy to commit such offense.* The enumeration of various means by which an offense 52—Clark v. U. 8., 211 Fed. 916. 53—Bennett v. U. S., 194 Fed. 630. 54—Crain v. U. 8. 162 U. S. 625; 40 L. Ed. 1097. Connors v. U. 8., 158 U. 8. 408; 39 L. Ed. 1033. 140 Fed. 577. 55—U. 8. v. Heinze, 161 Fed. 425. Bridgeman v. U. 8, Pooler v. U. S., 127 Fed. 509. 56—Burton v. U. S., 142 Fed. 57. Byrne’s Crim. Proe.—9 57—Neall v. U. S., 118 Fed. 699. 58—Morgan v. U. S., 148 Fed. 189. 59—U. 8S. v. Eccles, 181 Fed, 906. Stanley v. U. S., 195 Fed. 896. 60—John Gund Brewing Co. v. U.S, 206 Fed. 386. . 61—Stanley v. U. S., 195 Fed. 896. U. 8. v. Steigman, 220 Fed. 63. 62—Scott v. U. 8., 165 Fed. 172. 100 FEDERAL CRIMINAL. PROCEDURE [§ 152 was committed, does not constitute duplicity, such as murder by shooting and drowning, and proof of any one such means is sufficient.** If the indictment in charging one offense necessarily shows the commission of another by defendant, this does not constitute duplicity. § 153. Duplicity—Objecting to—It has been held that the objection to duplicity should be made by motion to elect rather than by demurrer; * also that it is waived by failure to demur or move to quash or to elect; ® also that it is cured by verdict; ®” and cannot be raised by motion in arrest of judgment.®® Where one act is charged with several alternative statutory phases the court has discretion in ruling upon a motion by defendant to compel the prosecution to elect as to the particular phase or phases on which it will prosecute.® § 154. Repugnancy.—An indictment whose allegations are repugnant to each other in material respects is fatally defective, i. e., as in charging defendant with conspiracy — to conceal bankruptcy assets from himself as trustee.’° Repugnancy in averments not descriptive of the sub- stance of the offense, may be considered surplusage.”! Repugnancy does not consist in the use of an ellipsis sanctioned by good usage even though if strictly con- strued it would make for repugnancy, as by calling a note a forged note issued by the United States Treasury 63—Andersen v. U. 8., 170 U. S. 481; 42 L. Ed. 1116. See also 189. Pooler v. U. S. 127 Fed. 509; but see Ammerman v. U. S., 216 Knowles v. U. 8., 170 Fed. 409. 64—Miller v. U. 8., 133 Fed. 337. 65—U. 8. v. Louisville & N. R. Co., 165 Fed. 936. 66—Lemon v. U. 8., 164 Fed. 953. Lewellen v. U. S., 223 Fed. 18. 67—Durland v. U. 8., 161 U. 8. 306; 40 L. Ed. 709. 68—Morgan v. U. S., 148 Fed. Fed. 326; Allison v. U. S., 216~Fed. 329; Lehman v. U. S., 127 Fed. 41. - 69—Connors v. U. S., 158 U. 8. 408; 39 L. Ed. 1033. 70—Johnson v. U. S., 158 Fed. 69; see also De Lemos v. U. S., 91 Fed. 497; Lehman v. U. S., 127 Fed. 41. 71—Lehman v. U. 8., 127 Fed. 41. § 156] INDICTMENT AND INFORMATION 101, Department, meaning a note forged in the similitnde of | one issued by the Treasury Department.7? Repugnancy must be objected to at the trial to be avail- able on writ of error.’? § 155. Joinder and consolidation of charges.—Sec. 1024, Rev. Stats. ‘‘When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indict- ment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated.’’? 2 Fed. Stats. Anno. 337. § 156. Decisions regarding joinder and consolidation of charges.—Rev. Stats. 1024 permits the consolidation of indictments charging two or more acts connected together or two or more acts of the same class of crimes and offenses.74 Even though the offenses are of different grades or framed under different sections of the statute and carry different penalties and different procedure, if the acts are connected together they may be joined in one indict- ment,75 Rev. Stats. 1024 does not limit consolidation to such cases only as could be joined at common law, but allows the court a discretion to refuse joinder where it would be ‘ 72—U. 8. v. Howell, 78 U. 8. (11 Wall.) 432; 20 L. Ed. 195. 73—Sims v. U. S8., 121 Fed. 515. 74—Williams v. U. S.; 168 U. 8S. 882; 42 L. Ed. 509. Ingraham v. U. 8., 155 U. 8. 434; 39 L, Ed. 213. Rooney v. U. 8., 203 Fed. 928. Mar- shall v. U. S., 197 Fed. 511. Norton v. U. 8. 205 Fed. 593. Chadwick v. U. 8., 141 Fed. 225. Dillard v. U. S., 141 Fed. 303. Haines v. U. S., 101 Fed. 817, Gardes v. U. S., 87 Fed. 172. Turner v. U. 8., 66 Fed. 280. Pointer v. U. 8., 151 U. S. 396; 38 L, Ed. 208. 75—Dillard v. U. S., 141 Fed. 303. Logan v. U. S., 144 U.S. 263; 36 L. Ed. 429. McGregor v. U. 8., 134 Fed. 187. Dolan v. U. 8., 133 Fed. 440. Olson v. U S., 183 Fed. 849. \ 102 FEDERAL CRIMINAL PROCEDURE [§ 156 unfair or unjust to defendant.’* Consolidation is within the trial court’s discretion, and his action is not review- able unless such discretion is abused or manifest injustice done.”” Statutory misdemeanors of the same class when joined in one indictment do not require election even though some are punishable by eee in the peniten- tiary.78 Objection to such consolidation saat be made promptly to save the question for review.”® Indictments for distinct felonies not provable by the same evidence and not resulting from the same series of acts cannot be consolidated.®° But consolidation is proper of indictments containing charges of conspiracy to com- mit a crime with charges of aiding and abetting in the commission of the offense charged as the object of the conspiracy.®+ Misjoinder is not prejudicial where the trial proceeds entirely on counts charging a single offense and all other counts are dismissed at the close of the Government's case with its consent.8? Indictments may be tried together without being con- solidated, in which case the statutory number of chal- lenges should be allowed for each indictment; ** but ordi- narily where several indictments are consolidated for the purpose of trial they are to be considered as one indict- ment.8* § 157. Election of charges.——A motion for election is addressed to the court’s discretion and its ruling thereon is not reviewable except for abuse.®® e 76—Dolan v. U. 8., 133 Fed. 440. 80—McElroy v. U. S., 164 U. S. 77—Lemon v. U. 8., 164 Fed. 953. 76; 41 L. Ed. 355. Brown v. U. S., 143 Fed 60. 81—Ryan v. U. S., 216 Fed. 18. 78—Hartman v. U. 8., 168 Fed. 82—Kulp v. U. S., 210 Fed. 249. 30. Morris v. U. 8., 161 Fed. 672. 83—Betts v. U. 8., 1382 Fed. 228. 79—Logan v. U. S., 144 U. S. 263; 84—Pointer v. U. S., 91 Fed. 494. 36 L. Ed. 429. Haynes v. U. S., 101 85—Gardes v. U. 8., 87 Fed. 172. Fed. 817. Rooney v. U. S., 203 Fed. 928. § 158] INDICTMENT AND INFORMATION 103 The court’s power to compel election is not affected by Rev. Stats. 1024 and an election may be ordered at any time in the court’s discretion before the conclusion of trial.86 Election will not be ordered where several counts have been inserted in the indictment in good faith, for the purpose of meeting the evidence as it may transpire and when the offenses charged, though technically different, are of the same general nature and substantially the same arising out of the same transaction and concerning which the same testimony must be relied on for conviction.*” Where the counts in an indictment vary only in form, election is at the discretion of the court, and ordinarily should not be granted.® It is not error for the court to deny a motion to quash because of misjoinder of counts, where the district attor- ney elects to proceed on one count and to nolle the others.®® § 158. Joinder of defendants.—A corporation and its agents may be jointly indicted.®° An indictment naming A. and B. doing business under a certain name and style, is an indictment of individual defendants and not of the firm which they compose.*! Aiders and abettors may be joined in the same count - with principals.°? _ ' Where a plurality of defendants is necessary to a crime they should be joined as principals instead of being charged as co-conspirators.®? 86—Pointer v. U. 8S. 151 U.S. U.S.v. N. ¥.C.& H.R. R. Co., 146 396; 38 L. Ed. 208. Fed: 298. 87—Terry v. U. §., 120 Fed. 483. 91—Schraubstadter v. U. S., 199 88—Pierce v. U. &., 160 U.S. 355; Fed. 568. 40 L. Ed. 454. McGregor v. U. 8., 92—Prettyman v. U. 8., 180 Fed. 134 Fed. 187. 30. Coffin v. U. &., 156 U. S. 432; 89—Rumble v. U. S., 143 Fed. 772. 39 L. Ed. 481. 90—N. Y. C. & H. RB. R. Co. v. 93—Chadwick v. U. S., 141 Fed. U.S&., 212 U. 8. 481. 53 L, Ed. 613. 225. 104 FEDERAL CRIMINAL PROCEDURE [§ 159 § 159. Severance.—The matter of allowing severance is within the court’s discretion and is not reviewable unless abused.** The exercise of the court’s discretion will not be held erroneous in the absence of clear indications that serious prejudice resulted to defendants. But severance will be ordered when the questions to be presented on the trial of some defendants will be materially different from those involved in the trial of others and where it appears probable that serious antagonism will develop between the different defenses.®* § 160. Felonies defined.—Sec. 335, Criminal Code. ‘‘ All offenses which may be punished by death, or imprison- ment for a term exceeding one year shall be deemed fel- onies. All other offenses shall be deemed-misdemeanors.’’ 1909 Supl. Fed. Stats. Anno. 495. § 161. Decisions regarding definition of felonies.—If a crime was a felony at common law and is designated in the statute by the common law name, it is a felony there also.°7 And if a federal statute adopts a state statute as to an offense made a felony by the state law the crime should be treated. as a felony by the federal courts.*® A statutory crime unknown to the common law must be considered a misdemeanor if the statute does not make it a felony.®® And if the statute states that the offense is a misdemeanor such classification is controlling regard- less of the punishment named.’1® If an offense was a misdemeanor at common law it retains that character 94—Ball v. U. S., 163 U. S. 662; 96—U. 8. v. Rockefeller, 222 Fed. 41 L. Ed. 300. U. 8. v. Marchant, 534. 25 U. S. (12 Wheat.) 480; 6 L, Ed. 97—Harrison v. U. 8., 163 U. 8. 700. Heike v. U. S., 192 Fed. 83. 140; 41 L. Ed. 104. Wood v. U. 8., 204 Fed. 55. Talbott 98—Morris v. U. S., 161 Fed. 672. v. U. S., 208 Fed. 144. Heike v. U. 99—Considine v. U.S., 112 Fed. 8., 227 U. 8. 1381; 57 L. Ed. 450. 342, 95—Richards v. U. S., 175 Fed. 100—Tyler v. U. 8., 106 Fed. 187. 911, Krause v. U. S., 147 Fed. 442. Lee Dock v. U. S., 224 Fed. 431. § 162] INDICTMENT AND INFORMATION 105 unless Congress has declared otherwise either directly or by adopting state statutes defining its character.?°* And if an offense is subordinate to a misdemeanor it also is a misdemeanor, i. e., smuggling and receiving smug- gled goods.1°? The grade of crime is determined by the punishment which may be inflicted. Therefore, a capital crime is one punishable by death.1% § 162. ‘‘Unlawfully,’’ ‘‘feloniously’’ and other adverbs. —In felonies at common law and in statutory crimes where felonious intent is an ingredient, ‘‘feloniously’’ must be used; but not merely because the crime is of the grade of a felony. If the offense is made a felony in order to describe the punishment rather than the crime, the word ‘‘feloni- ously’? need not be used in the indictment.2 ‘‘Feloni- ously’’ when used unnecessarily in the indictment may be regarded as surplusage.® ‘‘Unlawfully and feloniously’’ means that the act pro- ceeded from a criminal intent and evil purpose and excludes all color of right and excuse for the act;* but ~these words will not cure the omission from the indict- ment of any of the essential elements of the offense.® ‘“‘Unlawfully’’ does not necessarily mean contrary to law but may simply mean not lawful.® “‘Fraudulently’’ is a conclusion of law when applied to the charge of an act lawful in itself but made criminal by statute when fraudulently done, and facts showing 101—Hallock v. U. S., 185 Fed. 2—U. S. v. Staats, 8 How. 41; 12 417. L, Ed. 979. 102—Reagan v. U. S., 157 U. S. 3—Davey v. U. 8., 208 Fed. 237. 301; 39 L. Ed. 709. 4—Bise v. U. S., 144 Fed. 374. 103—Fitzpatrick v. U. 8., 178 U. 5—Wroclawski v. U. S., 183 Fed. 8. 305; 44 L. Ed. 1078. 312. 1—Bannon v. U. S., 156 U. 8. 6—MaeDaniel v. U. S., 87 Fed. 464; 39 L. Ed. 494. U.S. v. Staats, 321. 8 How. 41; 12 L. Ed. 979. Wood v. U. &., 204 Fed. 55. 106 FEDERAL CRIMINAL PROCEDURE [§ 162 the fraudulent nature of the act must be stated.” How- ever, the word ‘‘fraudulently’’ has been held to be suffi- ciently implied by the use of the words ‘‘corruptly and wilfully.’ ® ‘‘Knowingly and wilfully’’ implies not only a knowl- edge but a determination with an evil intent to do the thing charged.® ‘‘Wilfully’’ means purposely or obsti- nately and indicates the attitude of one who having a free will or choice either intentionally disregards the law or statute, or is plainly indifferent to its requirements.” Where the indictment shows the defendant’s intention and knowledge the omission of the statutory word ‘‘wil- fully’’ is not fatal. i Technical adverbs such as ‘‘feloniously’’ need not be repeated with each verb in the indictment as they are held to apply to all verbs connected with the one which they modify;?2 And an indictment for murder which charges that the acts constituting the assault were made ‘‘feloniously and with malice aforethought,’’ need not contain such adverbs in the preliminary averment of. assault.13 Adverbs necessary in charging a certain crime such as ‘knowingly’? and ‘‘wilfully’? must be included in the description of the crime when it is set forth as the object .of a conspiracy," unless their equivalents are alleged.* § 163. Intent.—The only criminal intent necessary to a statutory offense which is not malum in se is the purpose to do the act forbidden,!* but where intent is an essential ‘7—Martin v. U. S., 168 Fed. 198. 11—Nickell v. U. 8., 161 Fed. 702. 8—Wechsler v. U. &., 158 Fed. Van Gesner v. U.S., 153 Fed. 46. 579. 12—St. Clair v. U. S., 154 U. 8. 9—Felton v. U. S., 96 U. S. 699; 134; 38 L. Ed. 936, 24 L. Ed. 875 . > -13--Holt v. U. S., 218 U. 8. 245; 54 L, Bd. 1021. 10—U, 8. v. Railroad Co, 178 44 Conrad v. U. 8. 127 Fed. 798. Fed. 19. Railway Co. v. U. S., 162 15—Tapack v. U. S., 220 Fed. 445. Fed. 835. Railway Co. v. U. 8., 209 16—Armour Packing Co. v. U. 8, Fed. 600. ‘ 153 Fed. 1. § 163] INDICTMENT AND INFORMATION 107 ‘ingredient of the offense it may be charged in generai terms,’ and the necessity for charging a specific criminal intent may be obviated by setting forth facts which clearly import it.18 And the law imports an intent on the. part of the defendant to do the things which are the natural result of his wrongful acts.® . The indictment need not set forth the method of effect- ing the criminal intent or the circumstances showing the intent with which the act was done,?° and where a con- spiracy indictment uses general statements it will be assumed that the details of the conspiracy had not been fully agreed upon by defendants at the time charged in the indictment.4 The indictment, however, must refer the intent directly to the person contemplated by statute so that a charge that a vessel was fitted out with intent that she should be employed in the slave trade is not good under a statute forbidding such fitting out with intent to employ her in that trade as in the indictment the intent could refer to a third party while in the statute the intent necessarily refers to the defendant.?? Where several intents are charged cumulatively in an indictment, proof of one is sufficient,?* and such joinder ‘is a matter of form cured by Rev. Stats. 1025, after ver- dict at least, unless substantial prejudice to accused is affirmatively shown.?* 17—Evaus v. U. S., 153 U. 8. 584; 38 L. Ed. 830. U.S. v. Corbett, 215 U.S. 233; 54 L Ed. 173. McCarty v. U. S., 101 Fed. 118. 18—Bridgeman v. U. S., 140 Fed. 577. 19—Crawford v. U. S., 212 U. 8. 183; 53 L. Ed. 465. Billingsley v. U. &., 178 Fed. 653. Neall v. U. 8, 118 Fed. 699. \20—U. 8. v. Simmons, 96 U. S. 360; 24 L. Ed. 819. U. 8. v. Good- ing, 12 Wheat. 461; 6 L. Ed. 693. U. S. v. Wentworth, 11 Fed. 52. May v. U. S., 199 Fed. 42. Houston v. U. S., 217 Fed. 852 21—Williamson v. U. S., 207 U.. 8. 425; 52 L. Ed. 278. 22—U. S. v. Gooding, 25 U. 8. (12: Wheat.) 461; 6 L. Ed. 693. 23—Bacon v. U. 8., 97 Fed. 35. 24—Morgan v. U. S., 148 Fed. 189. 108 [§ 164 § 164. Knowledge.—The indictment usually need not allege knowledge unless the statute makes it an element of the offense,”> but if the statute, even though only by implication, makes knowledge such element it must be charged in the indictment.?¢ ‘‘Knowingly’’ means that knowledge of the facts which constitute a failure to comply with the law?’ and is a sufficient allegation of knowledge on the part of the defendant especially after verdict, as, if defective at all, it is so in form only.?® ‘FEDERAL CRIMINAL PROCEDURE - § 165. Collateral matters—Description of—Collateral matters need not be described with great particularity, so in conspiracy to commit an offense the conspiracy should be particularly described but the offense intended to be ‘committed may be set forth in general terms; ** and so under a statute forbidding the transportation of property by any device for less than the lawful rate, the device need not be particularly described; *° and so under a statute forbidding the mailing of letters in execution of a fraudulent scheme the description of the fraudulent scheme need not be as explicit as that of the mailing of the letter; #1 and in charging bribery to influence an official’s action upon certain leases, the leases need not be particularly described; ?* and in negativing the truth of false representations in describing a scheme to defraud general terms may be used.*8 25—Booth v. U. 8., 197 Fed. 283. U. 8. v. Bayaud, 16 Fed. 376. U.8. v. Malone, 9 Fed. 897. 26—U. 8. v. Carll, 105 U. 8. 612; 26 L. Ed. 1135. 27—U. 8. v. Ry. Co., 178 Fed. 19. 28—McNiel v. U. S., 150 Fed. 82. Price v. U. 8., 165 U. 8. 311; 41 L. Ed. 727. Rosen v. U. 8., 161 U. 8. 29; 40 L. Ed. 606. Tyomies Pub- lishing Co. v. U. S., 211 Fed. 385. Konda v. U. S., 166 Fed, 91. Dun- bar v. U. S., 156: U. S. 185; 39 L. Ed. 390. Shepard v. U. S., 160 Fed. 584. Burton v. U. S., 142 Fed. 57. 29—Thomas v. U. S., 156 Fed. 897. Ching v. U. S., 153 Fed. 304. Van Gesner v. U. S., 153 Fed. 46. Salla v. U. S., 104 Fed. 544. 30—Armour Packing Co. v. U. 8., 153 Fed. 1. 31—Brooks v. U. 8., 146 Fed. 223. 32—Sharp v. U. S., 188 Fed. 878. 33—Ewing v. U. S., 136 Fed. 53. § 168] INDICTMENT AND INFORMATION 109 Where a statute makes it an offense to do a certain thing without regard to the manner, the manner need not be described in the indictment.3* § 166. Matters of inducement.—Matters of inducement ordinarily may be set forth in general terms so that ‘‘duly appointed”’ is a sufficient allegation of the appointment of a trustee -in an indictment for concealing assets in bankruptcy; *° also ‘‘duly issued”’ is sufficient in describ- ing a warrant in an indictment for assaulting an officer engaged in serving process.*¢ § 167. Matters of evidence.—Matters of evidence as distinguished from those essential to the description of the offense need not be averred.7 § 168. Matters unknown to grand jury.—Matter un- known to the grand jury need not be particularly described if the indictment states the matter to be - unknown to the jury and if such matter be described as accurately as possible.?® If, however, the indictment is so indefinite as not to inform the defendant sufficiently of the charge against him the allegation that the indefinite matters are unknown to the grand jury cannot save the pleading,® also if the indictment is contradictory on its face in that it alleges that certain names were unknown to the grand jurors and at the same time shows conclusively that such names were in fact known to them the indictment is fatally repugnant,*? and if the names of persons which 34—Armour Packing Co. v. U. 8., 153 Fed. 1. May v. U. 8., 199 Fed. 42. 35—Kerch v. U. S., 171 Fed. 366. 36—Blake v. U. 8., 71 Fed. 286. 37—Hauger v. U. S., 173 Fed. 54. Brown v. U. S., 143 Fed. 60. 38—Jewett v. U. S., 100 Fed. 832. Miller v. U..S., 183 Fed. 337. Wong Din v. U. S,, 135 Fed. 702, Durland v. U. &., 161 U. 8. 306; 40 L. Ed. 709. Shaw v. U. S., 180 Fed. 348. Foerster v. U. S., 116 Fed. 860. Jacobs v. U. S., 161 Fed. 694. 39—Naftzger v. U. S., 200 Fed. 494, 40—Larkin v. U. S., 107 Fed. 697. 110 FEDERAL CRIMINAL PROCEDURE [§ 168 should be stated are alleged to be unknown there is a fatal variance if it is shown that they were in fact known to the grand jury.*! Although the rule is that matters known to the grand jury should not be described as unknown there is no burden of proof on the government to show that such allegation is in fact true, as in the absence of evidence to the contrary, such allegation will be presumed to have been proven.*? § 169. Matters of defense.—It is not necessary to nega- tive in the indictment matters of defense and theories of innocence if the indictment states the crime with reason- able certainty.** § 170. Surplusage and unnecessary description.—Sur- plusage or averment of immaterial facts in an indictment otherwise good is not ground for quashal and such aver- ment-need not be proved.** But it has been held that where an indictment sets forth unnecessary matter of description such matter must be proved as laid as otherwise the defendant might be entrapped by a false description which need not be proved.** § 171. Principals defined—Sec. 332, Criminal Code. “‘Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, . abets, counsels, commands, induces or procures its com- mission, is a principal.’’? 1909 Supl. Fed. Stats. Anno. 495. 41—U. 8. v. Riley, 74 Fed. 210. 44—U. 8. v. Moody, 164 Fed. 269. 42—Coffin v. U. 8., 156 U. 8. 432; Hall v. U.S. 168 U. S. 633; 42 L 39 L. Ed. 481. Jacobs v. U.S., 161 Ed. 607. Fed. 694. 45—Naftzger v. U. S., 200 Fed. | 48—Evans v. U.8., 153 U. 8.584; = 494. 38 L. Ed. 830. Horn v.'U. 8., 182 Fed. 721. § 173] INDICTMENT AND INFORMATION 111 § 172. Decisions regarding principals and accessories. —An indictment need not allege the defendant to be a principal if it states facts showing him to be such.** In misdemeanors all parties are principals,*? and this is so with regard to statutory misdemeanors whether the aiders and abettors are referred to in the statute or not.*® Under Section 332 of the Criminal Code one charged with aiding and abetting a crime is a principal even though, not named in the indictment as such.*? One may~ be a principal by aiding and abetting in the commission of an offense notwithstanding the fact that he is incom- petent to commit the principal offense by reason of not being of the particular age, sex, condition or class men- tioned in the statute.®° A person charged with aiding and abetting any crime, being a principal, may be tried and convicted before the person to whom the aid was given is tried, and may be convicted when tried together with or after the other principals, though such other principals be eeountied, ae § 173. Charging of aiding and abetting —In indict- ments for aiding, assisting, inciting or soliciting a crime it is not necessary to state the particulars of the assist- ance or solicitation.®% The doing of the principal act is sufficiently charged by alleging that defendant aided in the doing of it and the allegation of the principal act by the principal actor is unnecessary.*4 46—Peters v. U. S., 94 Fed. 127. 47—Richardson v. U. S., 181 Fed. 1. Jaycox v. U. &., 107 Fed. 938. U. 8. v. Winslow, 195 Fed. 578. 48—U. S. v. Martin, 176 Fed. 110. 49—-Davey v. U. S., 208 Fed. 237. 203 Fed.” 928. Kaufman v. United States, 212 Fed. Rooney v. U. &., 613. 50—U. 8. v. Bndaar 14 Fed. 554. 51—Kaufman v. U. S., 212 Fed. 613. 52—Rooney v. U. S§., 203 Fed. 928. 538—Coffin v. U. S.,'156 U. S. 432; 39 L. Ed. 481. U.S. v. Simmons, | 96 U. S. 360; 24 L. Ed. 819. U.S. v. Gooding, ‘12 Wheat. 461; 6 L. Ed. 693. Keliher v. U. S., 193 Fed. 8. 54_U. 8. v. Mills, 32 U. &. (7 Pet.) 138; 8.L. Ed. 636. U.S. v. Gooding, 25 U. S. (12 Wheat.) 461; 6 L. Ed. 693. 112 FEDERAL CRIMINAL PROCEDURE [§ 173 One who procures another to do an unlawful act is guilty of the offense itself and cannot contend that he should be charged merely with aiding and abetting.®® It has been held that under an indictment charging a major offense the defendant cannot be convicted only of aiding in the commission of such offense.5® See, however, Section 332 of the Criminal Code, Sec. 171 supra. § 174, Causing and procuring crime.—One who sets in motion a chain of events which he knows will inevitably result in an unlawful act is as guilty of such act as if he did it himself.5” It has been held that the charge that defendant did a thing includes a charge that he caused it to be done.** However, in charging an act necessarily involving the agency of another, as in procuring the presentation of a false affidavit, the name of the agent procured to do the act should be set forth.®® § 175. Attempts.—Attempts are not indictable as such merely because the completed crimes are made offenses by statute.® 7 It apparently is not good practice to charge a com- pleted crime and an attempt to commit the same in one count.* § 176. Written instruments—Tenor.—A written instru- ment need be set forth by tenor only when it relates to the pith of the offense; ® thus in an indictment for send- 55—Richardson v. U. S., 181 U.S. v. Simmons, 96 U. S. 360; 24 Fed. 1. 56—Hanley v. U. S., 186 Fed. 711. 57—Morse v. U. S., 174 Fed. 539. U. 8. v. Simmons, 96 U. S. 360; 24 L, Ed. 819. 58—Shepard v. U. 8., 160 Fed. 584. De Molli v. U. S., 144 Fed. 363. Burton v. U. S., 142 Fed. 57. 59—Miller v. U. 8., 136 Fed. 581. L. Ed. 819. 60—Kecek v. U. S., 172 U. S. 485; 43 L. Ed. 505. 61—Blitz v. U. 8., 153 U. &. 308; 38 L. Ed. 725. 1 62—Pooler v. U. 8., 127 Fed. 509. Dorsey v. U. S., 101 Fed. 746. U. 8. v. Bayaud, 16 Fed. 376. § 177] INDICTMENT AND INFORMATION 113 ing information regarding obscene articles, the articles may be generally described but the source of information (the letter) should be described by tenor, being directly concerned with the gist of the offense.®# The tenor of an instrument as set forth in the indict- iment controls any other description of it.*4 Any substantial variance between a written instrument as described in the indictment and the one offered in evidence is usually a fatal variance.® §177. Written instruments—General description.— Where a written instrument is only collaterally connected with the offense a general description of it is sufficient; thus in charging the embezzling of a letter containing a check, the check need not be described with such particu- larity as would be necessary in forgery or other crime directed against the instrument itself; °° so also in charg- ing misapplication of banking funds by means of a promissory note, a substantial description of the latter is sufficient; °? in charging the making of a false entry in a banking report, the date of the report and the date to which it refers are a sufficient identification of it; ® and in charging the making of a fraudulent claim supported by a false writing, the substance of the false writing is sufficient.°® a, ' Jn larceny of written instruments, a substantial description is sufficient, tenor not being required.”° The substance only of the issue need be proved and if other matters are proven which are not in strict con- 63—Grimm v. U. S., 156 U. 8. 66—Rosencrans v. U. S., 165 U.S. 604; 39 L. Ed. 550. Shepard v. U. 8., 160 Fed. 584. 64—U. S. v. Marcus, 53 Fed. 785. U. S. v. Bennett, 17 Blatch. 357. U. S. v. Mason, Fed. Cas. 15736. U. 8. v. Ambrose, 108 U. 8. 336; 27 L. Ed. 746 65—U. 8. v. Handyman, 13 Pet. 176; 10 L. Hd. 113. 257; 41 L. Ed. 708. 67—Rieger v. U. 8., 107 Fed. 916. 68—Harper v. U. S., 170 Fed. 385, Cochran v. U. S., 157 U. 8S. 286; 39 L. Ed. 704. 69—Bridgeman v. U. 8., 140 Fed. 577. 5 70—Jones v. U. S., 27 Fed. 447. 114 FEDERAL CRIMINAL PROCEDURE [§ 177 formity with the allegations of the indictment but which do not tend to the prejudice of the accused, the variance will be deemed immaterial such as a difference as to the date of maturity of a note by which misapplication of banking funds was accomplished.”! The federal courts ordinarily give a liberal construc- tion to words describing written instruments such as ‘‘record’’? and ‘‘document,’’ 7? and ‘‘declaration’’ and ““certificate.’’ 73 § 178. Obscene writings——If the grand jury declare that a writing is too obscene to be set forth in the indict- ment, this is ordinarily a sufficient excuse for its omis- sion.74 When the indecent paper is not set forth by tenor, it should be sufficiently described so as to identify it as by setting forth its date, name of writer, size, appearance, title page, etc.;75 and an indictment failing to identify such letter in any of the ways mentioned is fatally defective.7® If the defendant cannot procure a copy of the obscene matter referred to in the indictment he should apply for a bill of particulars; 77 also if he desires to learn what parts of the paper in particular will be relied on as being obscene.”8 § 179. Money—Description of.—Ordinarily in federal practice money need only be described in general terms; 71—Rieger v. U. 8., 107 Fed. 916. 40 L. Ed. 606. Rinker v. U. S., 151 72—McInerney v. U. S., 143 Fed. Fed. 755. Winters v. U. S., 201 Fed. 729. 845. Bartell v U. S., 227 U. 9. 427; 73—U. S. v. Ambrose, 108 U. S. 57 L. Ed. 583. 336; 27 L. Ed. 746. 76—Floren v. U. S., 186 Fed. 961. 74—Dunlap v. U. 8., 165 U. S. 77—Rosen v. U. &., 161 U. 8.'29; 486; 41 L. Ed. 799. Rosen v. U.S., 40 L. Ed. 606. Coomer v. U. 8., 213 161 U. 8. 29; 40 L, Ed. 606. Rinker Fed. 1. 7 v. U. S., 151 Fed. 755. Coomer v. 78—Bartell v. U. S. 227 U. 8. U. 8., 213 Fed. 1. 427; 57 L. Bd. 583. 75—Rosen v. U. 8., 161 U. S. 29; § 181] INDICTMENT AND INFORMATION | 115 that is, as consisting of so many dollars and cents 7° and the requirement of the common law that in embezzlement cases money should be specifically described is not observed in the case of offenses by public or corporate officers where the embezzlement usually consists of too many transactions to allow a definite description and where ordinarily the defendant is the only one who could describe the money.*®° It has been held that when a note is dbacribed which is payable in foreign coin, the value of such coin in current money should be stated. | Money is included in the phrase ‘‘article of value’’ used in a statute.*®? An allegation that money is lawful and legal tender money when immaterial is considered surplusage.®? § 180. Property—Description of—Property includes everything that may be appropriated to individual use.* It is not a fair objection to an indictment that the description of property in respect to which an offense is charged is broad enough to include more than one specific article; and any words of description which make clear to the common understanding the thing as to which the offense was committed are sufficient.®® § 181. Value—Allegation of—Where a statute does not make value an element of the crime, the indictment need not allege value.*® Strict proof of quantities or values is not ordinarily required.®? 79—McBride v. U. S., 101 Fed. 82—Shaw v. U. S., 180 Fed. 348. 821. 83—Porter v. U. S., 91 Fed. 494. 80—Moore v. U. S., 160 U. S. 268; 84—Keller v. U. 8., 168 Fed. 697. 40 L. Ed. 422. Dimmick v. U. 8, 85—Dunbar v. U. S., 156 U. 8S. 121 Fed. 638. - 185; 39 L. Ed. 390. 81—U. 8S. v. Handyman, 38 U. S. 86—Jones v. U. S., 27 Fed. 447. (13 Pet.) 176; 10 L. Ed. 113. 87—Tyler v. U. 8. 106 Fed. 137. Byrne’s Crim. Proc.—10_ § 182. § 183. § 184. § 185. § 186. § 187. § 188. § 189. § 190. § 191. § 192. § 193. § 194, § 195. § 196. § 197. § 198. § 199. § 200. § 201. § 202. § 203. § 204. § 205. CHAPTER Ix PLEAS AND MOTIONS BEFORE TRIAL A—PLEAS IN ABATEMENT Grounds for. Requisites of Plea. Time for Filing. Joinder of Pleas. Plea for Insanity. Matters of Law and Fact. Judgment on Plea. B—MOTION TO QUASH Grounds for. Time for Filing. The Motion as Evidence. Quashal in Court’s Discretion. C—DEMURRER Formal Defects in Indictment Not Demurrable. Decisions Regarding Formal Defects in Indictments. Use and Effect of Demurrer. Admission by Demurrer. Consideration of Demurrer in Appellate Court. When Demurrer Overruled, Defendant to Answer Over. Effect of Pleading Over. D—BILL OF PARTICULARS When Proper. Effect of. Discretion of Court. E—NOLO CONTENDERE Nature and Effect of Plea. F—DOUBLE JEOPARDY _Double Jeopardy Forbidden. Application of Constitutional Provisions. 116 § 206. § 207. § 208. § 209. § 210. § 211. § 212. § 218. § 214, § 215. § 216. § 217. § 218. § 219. § 220. § 221. § 222. § 223. § 224, § 225, § 226. § 297. § 228. § 229. § 230. § 231. § 232. § 233. § 234. § 235. § 236. § 237. § 238. PLEAS AND MOTIONS BEFORE TRIAL 117 Effect of Arraignment and Plea. Discharge of Jury Before Verdict. Effect of Judgment Without J urisdiction. Effect of New Trial Through Defendant’s Appeal. G-—FORMER ACQUITTAL OR CONVICTION Effect of Judgment by Court Martial. Effect of Judgment by Court of Concurrent Jurisdiction. Perjury Charge After Acquittal—When Proper. Effect of Discharge in Habeas Corpus. Effect of Nolle Prosequi. Plea Must Show Identity of Offenses. Identity of Offenses Discussed. Effect of Judgment for Single Act Constiiuling Double Offense. Effect of Judgment as to Continuous Offense. Form of and Practice on Plea. H—GUILTY AND NOT GUILTY Prisoner Standing Mute Pleads Not Guilty. Statute Applies to Informations. Necessity for Plea of Guilty or Not Guilty. Effect of Plea of Guilty. Effect of Plea of Not Guilty. Withdrawing Plea of Guilty or Not Guilty. I—PARDON Pardoning Power in President. Nature and Effect of Pardon. Pleading Pardon. Acceptance of Pardon. J—NOLLE PROSEQUI Power of Attorney General. Time for Entering Nolle Prosequi. K—STATUTES OF LIMITATIONS Limitation on Prosecution for Capital Offenses. Limitation on Prosecution for Non-Capital Offenses. Statute Suspended by Flight. Limitation as to Prosecution under Revenue Laws. Pleading Statute of Limitations. Running of Statute. Decisions Regarding Effect of Flight. 118 FEDERAL CRIMINAL PROCEDURE [§ 182 A-——PLEAS IN ABATEMENT 8 182. Pleas in abatement—Grounds for.—A plea in abatement may properly raise an issue of fact as to what evidence was presented to the grand jury.! Allegations of facts contrary to the record or which can be proven only by testimony of the grand jurors dis- closing their proceedings cannot properly be inquired ‘into by a plea in abatement; such an inquiry must be addressed to the discretion of the court by suggestion or motion and will be allowed only in rare and extra- ordinary cases where the matters, if true, work a mani- fest and substantial injury to the defendant? : § 183. Requisites of plea.—A plea in abatement being dilatory and not favored by the courts, must conform strictly to the formal requirements of such plea and con- tain all essential averments pleaded with accuracy.? Such pleas are to be strictly construed‘ and such a plea is fatally defective which alleges conclusions without facts to support them.® A plea in abatement on the ground of irregularities in the constitution of the grand jury must allege facts show- ing that the defendant was prejudiced thereby.® A plea in abatement on the ground of the presentation of improper evidence to the grand jury should show that no proper evidence was presented in support of the indict- ment.” § 184. Time for filing.—A plea in abatement alleging irregularity in drawing grand jurors, filed two weeks ‘ 1—U. 8. v. Swift, 186 Fed. 1002. 2—U. 8. v. Terry, 39 Fed. 355. 3—U. 8. v. Greene, 113 Fed. 683. U. S. v. Rockefeller, 221 Fed. 462) 4—Hillman v. U. S., 192 Fed. 264. 5—Agnew v. U. S., 168 U. 8. 36; 41 L. Ed. 624, U. 8. v. Philadelphia & R. Ry. Co., 225 Fed. 301. 6—U. 8S. v. Nevin, 199 Fed. 831. U. S..v. Merchants & Miners’ Trans- portation Co. 187 Fed. 355. U. 8. v. Chaires, 40 Fed. 820. U.S. v. Benson, 31 Fed. 896. 7—Hillman v. U. S., 192 Fed. 264. Chadwick v. U. S., 141 Ped. 225. §186] PLEAS AND MOTIONS BEFORE TRIAL 119 after the court opened and five days after the indictment, is too late where it alleges no reason for the delay.® A plea of misnomer cannot be interposed after motion to quash and is waived by subsequent demurrer.® A plea in abatement should not be entertained after a demurrer has been overruled and at a term subsequent to the one at which a plea of not guilty was entered.'° § 185. Joinder of pleas.—The right to plead in abate- ment is waived by a plea in bar.11_ However, by leave of court defendant may file two or more pleas in abate- ment. . It has also been held that defendant may file a plea of former jeopardy and one of not guilty inasmuch as such pleas are not repugnant to each other.'3 - § 186. Plea of insanity— Where an affirmative showing of insanity is made by defendant either at or before trial, the question should be inquired into in the proper man- ner; if at the trial the question may be submitted to the jury along with the principal issue of guilty or not guilty; if before trial the court may have the fact deter- mined. in such manner as seems appropriate either by himself upon inquiry or by a jury. It is the duty of the . court, if no jury is impaneled, to consider and determine the matter judicially and the record should show that upon this issue there has been the exercise of judicial judgment and discretion."* . It has been held that where the question of insanity is . submitted to a jury for a preliminary finding before trial, 8—Agnew v. U. S., 165 U. S. 36; 12—U. 8S. v. Richardson, 28 Fed. | 41 L. Ed. 624. 61. 9—Lee v. U. S., 156 Fed. 948. 13—Thompson v. U. 8., 155 U. 8. 10—Wilder v. U. S., 143 Fed. 433. 271; 39 L. Ed. 146. 11—U. 8S. v. Gale, 109 U. S. 65; 14—Youtsey v. U. 8., 97 Fed. 937. 27 L. Ed. 857. 1 120 FEDERAL CRIMINAL PROCEDURE [§ 186 a unanimous verdict of insanity is necessary to authorize the court to take action thereon.’® The trial of the insanity of defendant suggested after verdict and sentence is at common law in the discretion of the judge but may be controlled entirely by statute.1® § 187. Matters of law and of fact.—On pleas in abate- ment, matters of law are for the court and matters of fact for the jury.” § 188. Judgment on special plea—When judgment is entered on a verdict against a special plea such judgment is not final so as to authorize an immediate appeal, and the defendant should plead over and go to trial.1® B—MOTION TO QUASH § 189. Grounds for motion to quash—The abandon- ment of a prior indictment against defendant for the same offense is not a ground for quashing of the second “indictment.” As to motion to quash because of disqualification of grand jurors, see Section 82 supra; because of exclusion from grand jury on account of race or color, see Section 88 supra; because of the hearing of incompetent evidence by grand jury, see Section 105 supra; because of im- proper conduct of district attorney before grand jury, see Section 106 supra; because of the presence of un- authorized person during grand jury proceedings, see Section 109 supra. If the indictment does not state an offense known to law, it may be quashed.”° 15—U. 8. v. German, 115 Fed. 19—Thompson v. U. S., 202 Fed. 987. 401. 16—Nobles v. Ga., 168 U. S. 398; 20—Wharton’s Crim. Pleading 42 L. Ed. 515. and Practice, 9th Ed., Sec. 385. 17—Jones v. U. 8., 179 Fed. 584. 18—Heike v. U. S., 217 U. 8. 423; 54 L, Ed. 821. §193] PLEAS AND MOTIONS BEFORE TRIAL 121 § 190. Time for motion.—Objections to the improper arrest of defendant and improper preliminary examina- tion and to the lack of verification of the information by oath or affidavit, must be made before pleading the gen- eral issue.?1 It seems that the government may by consent waive the right to have motion to quash and pleas in abatement filed before the general issue and trial of the case.?? § 191. The motion as evidence.—If the facts set forth and sworn to in a motion to set aside an indictment upon the ground that the grand jury was improperly drawn, are not controverted, they stand as admitted.” But making oath on information and belief to a motion to quash does not make such motion evidence.”* § 192. Quashal in court’s discretion.—Refusal to quash an indictment is within the court’s discretion and is not generally assignable as error.” To save the point for appellate consideration, a refusal to quash must be excepted to.?® , C—DEMURRER § 193. Indictments—Defects of form immaterial._— , Sec. 1025, Rev. Stats. ‘‘No indictment found and pre- sented 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 21—Dowdell v. U. S., 221 U. 8. 325; 55 L. Ed. 753. See also Sec. 184 supra. 22—Breese v. U. S., 143 Fed. 250. 23—Sharp v. U. S., 138 Fed. 878. _24—Smith v. Miss., 162 U. 8. 592; 40 L. Ed. 1082. 25—Durland v. U. S., 161 U. S. 306; 40 L. Ed. 709. U.S. v. Rosen- berg, 74 U. S. (7 Wall.) 580; 19 L. Ed. 263. Carlisle v. U. S., 194 Fed. 827. Hillman v. U. 8., 192 Fed. 264. Hillegass v. U. S., 183 Fed. 199. Chadwick v. U. 8., 141 Fed. 225. Dillard v. U. &, 141 Fed. 303. McGregor v. U. S., 134 Fed. 187. Radford v. U. 8., 129 Fed. 49. 26—Carlisle v. U. S., 194 Fed. 827. 122 FEDERAL CRIMINAL PROCEDURE {§ 193 matter of form only, which shall not tend to the prejudice of the defendant.’’ 2 Fed. Stats. Arimo. 340. § 194. Decisions regarding formal defects in indict- ment.—F ormal defects in the indictment prejudicing the accused are disregarded under Rev. Stats. 1025,?7 Under Rev. Stats. 1025 an indictment is sufficient if it enables the accused to make his defense and plead the judgment in bar of a second prosecution.”8 Under Rev. Stats. 1025 none of the essential averments in an indictment need be made in any particular form no matter how that form may be sanctioned by precedent and long usage; if the averment appears in any form in the context of an indictment it is sufficient.?° An important omission from an indictment cannot be considered informal under the statute, when the evidence at the trial is not presented to the appellate court as it cannot say that the trial proceeded upon a different theory than that indicated by the indictment or that its averments were supplemented by the proofs.®° § 195. Use and effect of demurrer.—It has been held that a special demurrer will not be entertained as such but will be treated as a general demurrer.*! Objections to the sufficiency of an indictment ordinarily should be raised by demurrer and cannot be made by objections to the introduction of any testimony there- under.” ‘ Where a demurrer goes both to the indictment and the -bill of particulars and is so treated by counsel on both sides, the court may so consider it to avoid a useless trial 27—Caha v. U. S., 152 U. S. 211; 30—Joplin Mercantile Co. v. U. 38 L. Ed. 418. MacDaniel v. U.S, S., 236 U. S. 581; 59 L. Ed. 705. 87 Fed. 321. 31—U. S. v. French, 57 Fed. 382. 28—Clement v. U. S., 149 Fed. 32—Nurnberger v. U. S., 156 Fed. 305. ‘721. “McSpadden v. U. 8., 224 Fed. 29—U. S. v. Howard, 132 Fed. 935. | B25. §199] PLEAS AND MOTIONS BEFORE TRIAL 123 of the indictment, though the law does not require him to do so.83 § 196. Admission by demurrer.—For the purpose of demurrer the facts alleged in the indictment are - admitted.*4 The truth of specific averments of facts in an informa- tion cannot be questioned on demurrer unless the truth or falsity of such facts is apparent from the record or can be judicially noticed by the court.®5 § 197. Consideration of demurrer in appellate court.— Even though a demurrer be general enough to cover a point raised in the upper court, such point will not be considered if not raised on the trial.?* An objection that should be raised by demurrer, such as repugnancy, is not available for argument on writ of error unless raised in the trial court.®7 § 198. When demurrer overruled, defendant to answer over.—Sec. 1026, Rev. Stats. ‘‘In every case in any court of the United States, where a demurrer is interposed to an indictment, or to any count or counts thereof, or to any information, and the demurrer is overruled, the judgment shall be respondeat ouster; and thereupon a trial may be ordered at the same term, or a continuance may be ordered, as justice may require.’’ 2 Fed. Stats. Anno. 343. § 199. Effect of pleading over.—When the defendant is allowed to plead over after the overruling of a demurrer, it has been held that error is not assignable for such over- ruling.®§ 33—U. 8. v. Adams Express Co., 36—Great Northern Ry. Co. v. U. 119 Fed. 240. 8., 208 U. 8. 452; 52 L. Ed. 567. 34—-MacDaniel v. U. 8., 87 Fed. 37—Sims v. U. 8., 121 Fed. 515. 321. 38—Hillegass v. U. S., 183 Fed. 35—U. S. v. Morrison, 109 Fed. 199. Lockwood v. U. S., 178 Fed. 891. 437, [§ 200 ve, BA 124 FEDERAL CRIMINAL PROCEDURE D—BILL OF PARTICULARS § 200. When bill of particulars is proper— Where the indictment though sufficient on demurrer is in general terms so that the defendant may be surprised by the evidence, a bill of particulars should be applied for and general descriptions in the indictment are considered waived by failure to make such application.®® Likewise the omission from the indictment of matters of descrip- tion which are not pertinent to the essence of the offense is not erroneous and defendant should ask for a bill of particulars if he wishes information thereon.’ § 201. Effect of bill of particulars—A bill of particu- lars cannot cure the omission from the indictment of material averments.*! On the other hand, an indictment which is not demurrable on its face does not become so by the addition of a bill of particulars.*? On the trial the prosecution should be limited in its evidence to the facts set forth in the bill of particulars.** And where a bill of particulars is of such a nature that it practically confines the prosecution to certain counts, alleged error in refusing to quash other counts is imma- terial.** § 202. Bill of particulars—Court’s discretion The allowance or refusal of a bill of particulars is ordinarily within the discretion of the trial judge.*® 39—Shaw v. U. S., 180 Fed. 348. Rinker v. U. 8., 151 Fed. 755. Tingle v. U. S., 87 Fed. 320. May v. U.S, 199 Fed. 42. Kirby v. U. S., 174 U. S. 47; 43 L. Ed. 809. Rimmer- man vy. U. S., 186 Fed. 307. 40—Williams v. U. S., 158 Fed. 30. 41—May v. U. 8., 199 Fed. 53. U. 8. v. Bayaud, 16 Fed. 376. 42—-Dunlap v. U. 8., 165 U. 8. 486; 41 L. Ed. 799. Coomer v. U. S., 213 Fed. 1. 43—U. 8. v. Adams Express Co., 119 Fed. 240. 44—Macdonald v. U. 8., 63 Fed. 426, 45—Dunlap v. U. S&, 165 U. 8. 486; 41 L. Ed. 799. Breese v. U. 8S. 106 Fed. 680. §205] PLEAS AND MOTIONS BEFORE TRIAL 125 E—NOLO CONTENDERE § 203. Nature and effect of nolo contendere.—A plea of nolo contendere is in effect a plea of guilty to every es- sential element of the offense well pleaded in the indict- ment and warrants the defendant’s conviction thereof without more.*¢ This plea of nolo contendere is open to defendant only under leave and acceptance by the court. When accepted by the court, it becomes an implied confession of guilt, and for the instant case equivalent to a plea of guilty but cannot be used against him in a civil case. Under com- mon law rules which govern in the federal courts, this plea is acceptable only in cases of misdemeanors punish- able by fine alone and not those requiring any imprison- ment or for felonies. So under an indictment containing charges of both kinds of misdemeanors, nolo contendere must be confined to those punishable by fine alone.** While a plea of nolo contendere is in some respects in the nature of a compromise between the state and defend- ant and while defendant may not have under such plea all the advantages of exception and review that could be saved by a plea of not guilty, nevertheless the defendant may, notwithstanding such plea of nolo contendere, have the question determined on writ of error whether the ‘indictment charges an offense, as this objection might be urged under plea of guilty.*® F—DOUBLE JEOPARDY § 204. Double jeopardy forbidden—Amendment V, United States Constitution. ‘‘Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.’’ 9 Fed. Stats. Anno. 264. § 205. Application of the constitutional provision.— The Fifth Amendment forbidding double jeopardy 46—U. 8. v. Lair, 195 Fed. 47. 48—Hocking Valley Ry. Oo. v. 47—Tucker v. U. 8., 196 Fed. 260. U. S., 210 Fed. 735. 126 FEDERAL CRIMINAL PROCEDURE [§ 205 applies only to criminal proceedings and has no applica- tion to proceedings for the deportation of aliens.*® This amendment also applies to misdemeanors as well as to felonies.°° § 206. Effect of arraignment and plea.—Mere arraign- ment and pleading of accused to an indictment does not constitute jeopardy.®+ § 207. Effect of discharge of jury before verdict.—The court may discharge the jury during the course of the trial if there appears to be manifest necessity for such act and may order trial by another jury. A double jeopardy is not thereby incurred.*? Where, owing to the illness of a juror, the trial cannot proceed the proper course is for the trial judge to discharge the jury and adjudge a mis- trial even though the defendant be willing to proceed with eleven jurors.®? A plea of former jeopardy cannot be based upon the discharge of a prior jury after they have been out at least twenty-four hours, and the trial court has found that there was a reasonable probability that the jury could not agree. Such disagreement and discharge of the jury constitute a mistrial.®5 Where it is made to appear to the court that either by reason of facts existing when the jurors were sworn but unknown to the court, or by reason of outside influence ' brought to bear pending the trial, the jurors or some of ‘them are not impartial, the jury may be discharged and the defendant brought before a new jury and he is not thereby twice put in jeopardy." 49—Sire v. Berkshire, 185 Fed. 54—Keerl v. Mont., 213 U. 8. 135; 967. 53 L. Ed. 734. 50—Ex parte Lange, 85 U. 8. (18 55—Keerl v. Mont., 213 U. 8. 135; Wall.) 163; 21 L. Ed. 872. 53 L. Ed. 734. Dreyer v. Llinois, 51—Bassing v. Cady, 208 U. S. 187 U.S. 71; 47 L. Ed. 79. Kelly v. 886; 52 L. Ed. 540. U. 8., 27 Fed. 616. 52—Thompson v. U. 8., 155 U. 8. 56—Simmons v. U. S., 142 U. 8. 271; 39 L, Ed. 146. 148; 35 L. Ed. 968. 538—Gardes v. U. 8., 87 Fed. 172. Bh me OF §209] PLEAS AND MOTIONS BEFORE TRIAL 127- However, where the court adjourned a case after evi- dence had been introduced by the prosecution and on the adjournment day, on' the ground that the judge was unwell, discharged the jury without the defendant’s con- sent, such discharge was held: equivalent to an acquittal, and defendant could not again be tried for the same offense.57 § 208. Effect of judgment without jurisdiction—A _ judgment by a court without jurisdiction is, of course, no bar to a second proceeding before a tribunal possess- ing jurisdiction, but a judgment by a court martial having jurisdiction ordinarily is a bar to further pro- _ ceedings.®® And where the records show that the defend- ant did not commit the crime and could not possibly have committed the crime charged, the court was without jurisdiction and the defendant has not been put in jeopardy.®° The dismissal of an indictment before submission to the jury, although after they were sworn, on the ground that it did not charge a crime will not support a plea of autrefois acquit or of former jeopardy to a second indict- ment for the same offense attempted to be charged in the first; the court in the first proceeding never having had jurisdiction of the offense.®° § 209. Effect of new trial through defendant’s appeal. - — and such error will be presumed harmless in the absence of a showing that it forced a partial or objectionable juror on the defendant against his will.56 The making and sustaining of a challenge for cause that should have been for favor is not reversible error.®7 The issue raised by a challenge for cause to a juror in a criminal case on the ground that he has formed and expressed an opinion as to the issue to be tried, is one of law and fact, and the court’s decision should not be set aside unless manifestly erroneous and prejudicial to defendant.®® § 255. Challenges in bigamy cases, etc.—Sec. 288, Judi- cial Code. ‘‘In any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be a sufficient cause of challenge to any person drawn or summoned as a juror or tales- man— ‘‘First, that he is or has been living in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable either by sections one or three of an Act entitled ‘An Act to amend section fifty-three hun- dred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes,’ approved March twenty-second, eighteen hundred and eighty-two, or by section fifty-three hundred and fifty- 54—Rosencranz'v. U. S., 155 Fed.°~ 57—Reynolds v. U. S., 98 U. 8. 38, 145; 25 L, Ed. 244, 55—Ex parte Spies, 123 U. S. 58—Ex parte Spies, 123 U. 8. 131; 131; 31 L. Ed. 80. 31 L. Ed. 80. 56—Kharas v. U. S., 192 Fed. 603. 152 FEDERAL CRIMINAL PROCEDURE [§ 255 two of the Revised Statutes of the United States, or the Act of July first, eighteen hundred and sixty-two, entitled ‘An Act to punish and prevent the practice of polygamy in the Territories of the United States and other places, and disapproving and annuling certain Acts of the legis- lative assembly of the Territory of Utah’; or “Second, that he believes it right for a man to have more than one living and undivorced wife at the same time, or to live in the practice of cohabiting with more than one woman. ‘‘Any person appearing or offered as a juror or tales- man, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge; and other evidence may be introduced bearing upon the question raised by such challenge; and this question shall be tried by the court. “But as to the first ground of challenge before men- tioned, the person challenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecution against him for any offense above named; but if he de- clines to answer on any ground he shall be rejected as incompetent.’’ 1912 Supl. Fed. Stats. Anno. 248. § 256. Application of Sec. 288 Judicial Code to grand jurors.—Under the statute from which Sec. 288 of the Judicial Code was obtained, it has been held that the causes of challenge in prosecutions for bigamy and the like specified in the statute apply as well to persons summoned as grand jurors as to those summoned as petit jurors.°® 59—Clawson v. U. S., 114 U. 8. 477; 29 L, Bd. 179. § 257. § 258. - -§ 259. § 260. § 261. § 262. § 263. § 264. § 265. § 266. § 267. § 268, . § 269. § 270. § 271. § 272. § 273. § 274. ' § 975. CHAPTER XI SPECIAL FEATURES A—DEFENDANT’S PRESENCE IN COURT During Trial. At Sentencing. Involuntary Attendance of Defendant. Right of Confrontation of Witnesses. Defendant as a Witness. Defendant’s Presence in Appellate Court. A B—RIGHT TO COUNSEL AND WITNESSES Copy of Indictment and List of Jurors and Witnesses to Be Furnished Defendant in Capital Cases. Decisions Regarding Defendant’s Rights under Rev. Stats. 1033. Defendant in Capital Case Entitled to Counsel and to Compel Witnesses. Witnesses for Indigent Defendants at Government Ex- pense. Decisions Regarding the Procuring of Defendants’ Wit- nesses at Government Expense. Right of Counsel to See Defendant. C—IMMUNITY FROM SELF-CRIMINATION No Person to be a Witness Against Self. Immunity of Defendant on Trial. Immunity of Witnesses. As to Obtaining and Use of Evidence. Construction of Laws Granting Immunity. D—ARGUMENT TO THE JURY Scope of Argument. Improper Argument—When Prejudicial. 153 154 FEDERAL CRIMINAL PROCEDURE [§ 257 E—COURT’S DUTIES AND POWERS § 276. In General. § 277. Administering Oaths. § 278. Examination of Witnesses. § 279. Regulating Order of Proof. § 280. Allowance of Leading Questions. § 281. Time for Motions. § 282. Exclusion of Witnesses and Spectators. § 283. Process for Witnesses. § 284. Ruling on Continuances. § 285. Change of Venue When Judge Interested in Case. § 286. Interest of Judge Discussed. § 287. Change of Venue When Judge Prejudiced. § 288. Remarks by Court to Jury. § 289. Supervision of Jury by Court. § 290. De Facto Judges. F—DUE PROCESS OF LAW § 291. Due Process to be Observed. § 292. Due Process Defined. § 298. Due Process—Matters Not Required by. A—DEFENDANT’S PRESENCE IN COURT § 257. During trial—In trials for. capital offenses, the defendant cannot waive either by himself or counsel his right to be personally present during the trial,’ but where a defendant who is not in custody is on trial for a non- capital offense, and absents himself from the trial after it has begun in his presence he waives his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.” Although in felony cases no important step should be taken without defendant’s presence, the record need not affirmatively repeat the statement of defendant’s pres- ence if enough is shown to justify the presumption that 1—Lewis v. U. 8. 146 U. 8.370; =2—Diaz v. U. S.,, 223 U. 8. 4425 36 L. Ed. 1011. 56 L, Ed. 500. § 259] SPECIAL FEATURES 155 he was present during the trial* and the presumption is that a presence once noted continues at least during the entire day.* Still it should be remembered that the ques- tion of whether a defendant was properly arraigned or not is a matter of substance not of form and should be satisfactorily shown by the record.® The making of challenges is an essential part of: the trial and it is one of defendant’s substantial rights to be present at such challenging.® But the fact that the Sixth Amendment to the Con- stitution is intended to prevent convictions by ex parte affidavits does not prevent the certifying of the record of the lower court to the higher court in the absence of the defendant.’ § 258. Defendant’s presence at sentence.—A defendant in a misdemeanor case need not be personally present at arraignment nor during the trial but must be present at the time of sentence.? Although defendant must be pres- ent at the time of sentence even in misdemeanors, in such: cases it is not absolutely essential that he be asked if he has anything to say why sentence should not be pro- nounced.® The designation of the place of imprisonment in a sentence is no part of the judgment and may be made in the absence of defendant.”® § 259. Involuntary attendance of defendant.—Under Rev. Stats. 1030 a writ to bring the prisoner into court is not necessary, an order of the court or of the district attorney being sufficient." 3—Peters v. U. S., 94 Fed. 127. 7—Dowdell v. U. S., 221 U. 8. Kie v. U. 8., 27 Fed. 351. 325; 55 L, Ed. 753. 4—Peters v. U. S., 94 Fed. 127. 8—Breese v. U. S., 106 Fed. 680. 5—Johnson v. U. S., 225 U. S. 9—Turner v. U. S., 66 Fed. 280. 405; 56 L. Ed. 1142. 10—Ex parte Waterman, 33 Fed. 6—Lewis v. U. S., 146 U. 8. 370; = 29. 36 L. Ed, 1011. 11—U. 8S. v. Harden, 10 Fed. 820. 156 FEDERAL CRIMINAL PROCEDURE [§ 259 ‘A federal court may issue process to another state to bring before it corporate defendants who are citizens of such state and cannot be found. or served in the state or district of the indictment.12 § 260. Right of confrontation of witnesses.—The ad- mission in evidence of the statement under oath or depo- sition of a defendant who has fied the trial without the suggestion or procurement of the remaining defendants constitutes reversible error as to them, being in violation of their constitutional rights to be confronted with the witnesses against them; 1? but when witnesses are absent by defendant’s procurement or when enough has been proved to cast upon him the burden of showing, and he with full opportunity to do so, fails to show that he has not been instrumental in concealing them or keeping them away, evidence may be given against him of the tes- timony which they gave on previous trials of the same issue between himself and the United States. A defendant can waive by stipulation his right to object to depositions and cannot comp of evidence introduced by himself.1® Dying declarations are impliedly excepted from the effect of the Sixth Amendment; '* so also the reading in evidence on a second trial of the testimony given on the first trial by a witness since deceased does not violate the constitutional provision that accused shall be confronted with the witnesses against him.'” A statute making the record of conviction of one per- son for stealing goods admissible as against another on trial for receiving stolen goods is unconstitutional.'® 12—U. 8. v. Virginia-Carolina § 15—Diaz v. U. S., 223 U. S. 442; Chemical Co., 163 Fed. 66. U.S. v. 56 L. Ed. 500. Standard Oil Co. of Indiana, 154 16—Kirby v. U. 8. 174 U. 8. 473 Fed. 728. 43 L, Ed. 809. 13—Motes v. U. S., 178 U. 8. 17—Mattox v. U. 8., 156 U. 8. 458; 44 L. Ed. 750. 237; 39 L. Ed. 409. 14—Reynolds v. U. &., 98 U. S. 18—Kirby v. U. S., 174 U. S. 47; 145; 25 L. Ed. 244, 43 L. Ed. 809. : \ f § 262] SPECIAL FEATURES 157 Experiments to test the truth of evidence are in the discretion of the court, as in a murder trial allowing the shooting off of a gun in the presence of a marshal to see if it scattered shot; *® or by operating before the jury a plating machine taken from defendants to show it plated coins such as those which defendants were charged with making.?° But-it has been held fatal error to charge the jury that they could after retirement test opium to see if it was smoking opium, as such action would be outside defendant’s presence.”! § 261. The defendant as a witness—A defendant’ may if he desires testify for the government and against a co- defendant; ?? so also where a severance is ordered, one of the defendants whose case is undisposed of may be called and examined as a witness for the government against his co-defendant.”* A defendant who testifies for himself int submit to cross-examination 24 and cannot object that such cross- examination on the subjects of his direct testimony, forces him to incriminate himself, and his testimony is to be treated like that of any other witness and may be con- sidered for all purposes.”® It has been held that when two defendants are indicted jointly but tried separately it is not allowable for one to call the other as a witness in his behalf.?¢ § 262. Defendant’s presence in appellate court.—The presence of the defendant is not necessary in the appel- ate court.?” ' ; 19—Ball v. U. 8., 163 U. S. 662; 41 L. Ed. 300. -20—Taylor v. U. S., 89 Fed. 954. 21-——Wilson v. U. S., 116 Fed. 484. 22—Wolfson v. U. S., 101 Fed. 430. ’ 23—Benson v. U. S., 146 U. S. 325; 36 L. Ed, 991. 24—Diaz v. U. S., 223 U. 8. 442; 56 L. Ed. 500. Ex parte Spies, 123 U. S., 181; 31 L. Ed. 80. See also Sec. 271, infra. 25—Radin v. U. 8., 189 Fed. 568. 26—U. 8. v. Ried, 12 How. 361; 13 L. Ed. 1023. 27—Dowdell v. U. 8., 221 U. 8. 325; 55 L. Hd. 753. 168 FEDERAL CRIMINAL PROCEDURE [§ 268 B—RIGHT TO COUNSEL AND WITNESSES — § 263. Copy of indictment and list of jurors and wit- nesses to be delivered to prisoner in capital cases.—Sec. 1033, Rev. Stats. ‘‘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.’? 2 Fed. Stats. Anno. 344. § 264. Decisions regarding defendant’s rights under Sec. 1033 Rev. Stats.—Rev. Stats. 1033 applies only to the courts of the United States and not to those of terri- tories.® This statute applies only to treason and capital cases.” Nor does it apply to rebuttal witnesses and a list of such witnesses need not be furnished.*° If the defendant seasonably claims his rights under the statute, refusal to grant them constitutes reversible error; *! but the objection that the name of a witness was not on the indictment is waived when not made until the examination in chief of such witness has been con- cluded.*? The requirements of the statute as to furnishing the defendant with a list of jurors are satisfied by giving him in proper time a list of the regular panel of jurors in attendance at the opening of the trial, and if it becomes 28—Thiede v. Utah, 159 U. S. 70; 40 L. Ed. 343. Logan v. U.S. 510; 40 L. Ed. 237, Ballv. U.S, 144 U. 8. 263; 36 L. Ed. 429. 147 Fed. 32. 31—Logan v. U. 8., 144 U. 8. 29—Jones v. U. 9., 162 Fed. 417. 263; 36 L. Ed. 429. Balliett v. U. 8, 129 Fed. 689. 32—Hickory v. U. S., 151 U. 8. Shelp v. U. 8., 81 Fed. 694. 303; 38 L. Ed. 170, 30—Goldsby v. U. S., 160 U. S. 3 '§ 266] SPECIAL FEATURES 159 necessary to call a new panel to complete the trial jury, no error is committed by the fact that defendant is not given a list of their names in advance.?8 It seems that in the absence of a contrary showing, the presumption is that the requirements of this section have been complied with.*4 § 265. Persons indicted for capital crimes entitled to counsel and to compel witnesses.—Sec. 1034, Rev. Stats. ‘‘Every person who is indicted of treason or other capital crime, shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign to him such counsel, not exceeding two, as he may desire, and they shall have free access to him at all seasonable hours. He shall be allowed, in his defense, to make any proof that he can produce by lawful witnesses, and shall have the like process of the court to compel his witnesses to appear at his trial, as is usually granted to compel witnesses to appear on behalf of the prosecution.’’ 2 Fed. Stats. Anno. 344. § 266. Witnesses on behalf of indigent defendants in criminal cases.—Sec. 878, Rev. Stats. ‘‘Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are witnesses whose _ evidence is material to his defense; that he cannot safely go to trial without them; what he expects to prove by each of them; that they are within the district in which the court is held, or within one hundred miles of the place of trial; and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the court in term, or any judge thereof in vacation, may order that such witnesses be subpoenaed if found within the limits aforesaid. In such case the 33—Stewart v. U. 8., 211 Fed. 41. 34—-Johnson v. U. 8., 225 U. 8. 405; 56 L. Ed. 1142. 160 FEDERAL CRIMINAL PROCEDURE [§ 266 cost incurred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States.’ 7 Fed. Stats, Anno. 1122. § 267. Decisions regarding procuring defendant’s wit- nesses at government’s expense.—The right to sum- mon witnesses for the defendant at the government’s expense under Rev. Stats. 878 is in the discretion of the trial court, and therefore not reviewable on writ of error unless such discretion has been abused.*® Under Rev. Stats. 878 the court has a discretion to limit the number of witnesses to be subpoenaed for the defendant at the government’s expense.* § 268. Right to see counsel.—Although a person under arrest is ordinarily entitled to be visited by his counsel at all stages of the procedure, the refusal of this right is not necessarily a ground for setting aside a conviction, oy means of habeas corpus.*" C—IMMUNITY FROM SELF-CRIMINATION § 269. No person compelled to testify against self.— Amendment V, United States Constitution. ‘‘Nor shall (any person) be compelled in any criminal case to be a witness against himself.’’ 9 Fed. Stats. Anno. 277. § 270. Immunity of defendant on trial—lIt is revers- ible error for the prosecuting attorney to call the atten- tion of the jury in any way to defendant’s right to testify on his own behalf and such error is not cured by the fact that the defendant actually testifies afterwards since he is virtually compelled to do so to. avoid unfavorable inference by the jury.*® So also it is reversible error for 35—Goldsby v. U.S, 160 U.S. 38—McKnight v. U. S., 115 Fed. 70; 40 L, Ba. 343. 972. 36—Alexis v. U. S., 129 Fed. 60. 37—Andersen v. Treat, 172 U. S. 24; 43 L. Ed. 351. § 270] SPECIAL FEATURES: 161 the prosecuting attorney to call upon the defendant in the presence of the jury for any papers necessary to make out the government’s case.2® Government counsel like- wise cannot over objection refer to defendant’s failure to offer evidence of good character.*® If, however, defend- ant chooses to testify for himself, he waives his constitu- tional immunity, and his failure to testify regarding pertinent matters may be argued to the jury.*? The prosecuting attorney, also, may say that the pros- ecution has made out a prima facie case which has not been contradicted,‘? and may refer to the fact that of a large number of available witnesses none has been called by defendant.*? The erroneous rejection of testimony sought by the defense from a witness is not cured by the fact that the defendant later testifies as to such matters, as the rejec- tion of the testimony may have forced defendant to take the stand.*4 In proceedings civil in form but criminal in nature, the defendant cannot be forced to testify against his will.*® Thus a proceeding to forfeit a person’s goods for an offense against the laws, though civil in form is a criminal case within the meaning of the Fifth Amendment pro- hibiting compulsory self-crimination.** It is equivalent to a compulsory production of papers to make the nonproduction of them a confession of the allegations which it is pretended they will prove.** 39—McKnight v. U. S., 122 Fed. 926. McKnight v. U. S., 115 Fed. 972, 40—Bacon v. U. S., 97 Fed. 35. Wilson v. U. S., 149 U. S. 60; 39 L. Ed. 650. Lowdon v. U. 8., 149 Fed. 673. 41—Diggs v. U. S., 220 Fed. 545. 42—Carlisle v. U. S., 194 Fed. 827... 43—Jackson v. U. S., 102 Fed. 473. 44 King v. U. S., 112 Fed. 988. 45—Lees v. U. S., 150 U. 8. 476; 37 L. Ed. 1150. Boyd v. U. 8., 116 U. S. 616; 29 L, Ed. 746. Hepner v. U. 8. 213 U. 8. 1038; 53 L. Ed. 720. 46—Boyd v. U. S., 116 U. 8. 616; 29 L. Ed. 746. 47—Boyd v. U. 8., 116 U. 8. 616; 29 L, Ed. 746, 162 FEDERAL CRIMINAL PROCEDURE [§ 271 § 271. Immunity of witnesses.—It is not necessary that one claiming immunity under the federal laws should have asserted the privilege of the statute when the in- criminating testimony was given by him if he then had no reason to suppose that it would ever be usdd against him. It is sufficient if he claims the exemption when the evi- dence is first sought to be used contrary to law.*8 Matters of evidence from which defendant is immune cannot be used against him even on his cross examina- tion; *° but such immunity relates to past transactions mentioned in or disclosed by the testimony and not to perjury committed in such testimony.®° Immunity from prosecution extends only to the matters about which the witness testifies and to offenses to which such testimony relates in a substantial manner.®! One who has been promised immunity on a promise to testify truly before a trial jury may be prosecuted if he fails to keep such promise,®? and where the accused with knowledge that a proposed prosecution for con- spiracy is being investigated by the United States attor- ney, in an endeavor to establish his innocence to such officer, voluntarily produces and delivers to him certain letters, checks, etc., which the attorney at one time offers to return, but on finding that they contain valuable evi- dence against the accused and others refuses to return them and submits them to the grand jury on which with other evidence an indictment is voted, there has been no unreasonable search or seizure or deprivation of prop- erty, and the United States is entitled to use the papers against the accused, subject only to his right to examine and have copies of them and to have them surrendered 48—Hammond Lumber Co. v. 50—Wechsler v. U. S., 158 Fed. Sailors’ Union of the Pacific, 167 579. Edelstein v. U. S., 149 Fed. Fed. 809. 631, Daniels v. U. 8., 196 Fed. 459. 49—-Jacobs v. U. S., 161 Fed. 51—Heike v. U. S., 192 Fed. 83. 694. See however Diaz v. U. S, Heike v. U. S., 227 Fed 131. 223 U. 8. 442; 56 L. Ed. 500; see 52—U. 8. v. Hinz, 35 Fed, 272. also Sec. 261 supra. § 272] SPECIAL FEATURES 163 to him when the purpose of the government has been accomplished and in such case the accused cannot be said to have been compelled to produce evidence against him- self.53 The refusal of a witness to answer questions which _might incriminate himself is not to be considered as a circumstance unfavorable to the defendant." § 272. As to obtaining and use of evidence.—The Fifth Amendment to the Constitution does not prevent the use in evidence of the fact that a blouse fitted the prisoner even though the garment was donned under duress, since ‘though the evidence might have been im- properly obtained it was nevertheless competent.> Like- wise the fact that documentary or other evidence has been unlawfully obtained does not impair its competency or credibility.5* And the fact that a subpoena requires the witness to produce books and papers which he cannot lawfully be forced to produce does not affect the legality of the issuance of the subpoena nor the obligation of the witness to appear in obedience to it.5” On the other hand, a defendant cannot be required to produce private papers °° and although a corporation may be required to produce its books by subpoena, a subpoena calling for all of a corporation’s books and records is equivalent to an unreasonable search and seizure such as forbidden by the Fourth Constitutional Amendment.®® However, corporate books and records cannot be with- held from production in response to subpoena, on the ground that they will incriminate the individual pro- ducing them; nor can an attorney withhold them on the 53—U. S. v. Hart, 216 Fed. 374. 57—Leber v. U. 8., 170 Fed. 881. 54—Beach v. U. S., 46 Fed. 754. 58—Boyd v. U. S., 116 U. 8.' 616; 55—Holt v. U. S., 218 U.S. 245; 29 L. Ed. 746. 54 L, Ed. 1021. 59—Hale v. Henkel, 201 U. 8. 43; 56—-Adams v. New York, 192 U. 50 L. Ed. 652. 8. 585; 48 L, Ed. 575. Byrne’s Crim. Proc.—13 164 FEDERAL CRIMINAL PROCEDURE [§ 272 ground that he received them in his professional capacity. If defendant seasonably and before trial applies for an order for the restoration of books and other property unlawfully seized by officers, it is reversible error for the court to refuse to grant such motion and to allow the property to be used as evidence against defendant on the trial.*1_ The application must be seasonably made, how- ever, and defendant’s acquiescence in the disposition of the property made by the court, waives the right to require their return.® § 273. Construction of laws granting immunity—The immunity conferred by the Fifth Amendment extends not only to a criminal case proper but also to any criminal investigation; ® also to cases civil in form but criminal in nature.®* The immunity granted by a statute must be as complete as that of the amendment, or the law will be held uncon- stitutional.*© However, the statute is sufficiently broad if it gives the witness immunity which protects him in the same jurisdiction and under the same sovereignty.** The Fifth Amendment reasonably construed means that a witness is protected from being compelled to dis- close the circumstances of his offense, or the source from which or the modes by which evidence of its commission or his. connection with it may be obtained or made effectual for his conviction, without using his answers as direct admissions against him.” 60—Grant v. U. 8., 227 U. 8. 74; 64—Boyd v. U. 8., 116 U. S. 616; 57 L. Ed. 423. 29 L. Ed. 746. 61—Weeks v. U. 8., 232 U. S. 383; 65—Counselman v. Hitchcock, 142 58 L. Ed. 652. See also Sec. 5 U.S. 547; 35 L, Ed. 1110. supra. 66—Hale v. Henkel, 201 U. 8. 62—Farmer v. U. §., 223 Fed. 903. 43; 50 L. Bd. 652. Jack v. Kansas, 63—Counselman v. Hitchcock, 142 199 U. S. 372; 50 L. Ed. 234 U. S. 547; 35 L. Ed. 1110. In re 67—-Counselman v. Hitchcock, 142 Shaw, 172 Fed. 520. U. 8. 457; 38 L. Ed. 1110. & § 274] SPECIAL FEATURES 165 Inasmuch as immunity statutes operate only as to past offenses, a person cannot be said to have been a witness against himself in respect to an offense which had not been committed at the time the testimony was given; °®* in bankruptcy cases under a statute prohibiting the use of testimony obtained from a person in such proceedings the immunity relates to prosecutions for antecedent matters and not to offenses committed by such person in giving such testimony.*® D—THE ARGUMENT TO THE JURY § 274. Scope of argument.—The use of language by counsel calculated to prejudice defendant and not founded upon the evidence is improper, but invective based on the evidence and upon legitimate inference therefrom is not prohibited and it is usually within the discretion of the trial court to determine whether or not the limits of professional propriety have been exceeded.”° Similarly it has been held that there is a certain liberty allowed counsel in argument which the trial judge should respect unless the privilege is abused.7! How- ever, when prosecuting counsel over objection by defend- ant and unrestrained by the court goes outside the evidence to make prejudicial remarks, he commits error calling for reversal,” but improper argument by the government attorney will not be severely criticised by the appellate court when defendant’s counsel invites the error by challenging to such argument.” The prosecuting attorney cannot comment on the defendant’s failure to testify but may in substance say 68—U. 8. v. Swift, 186 Fed. 1002. 71—Chadwick v. U. S., 141 Fed. 69—In re Kaplan Bros. 213 Fed. 225. 753. Daniels v. U. 8., 196 Fed. 459. 72—Hall v. U. S., 150 U. S. 76; Wechsler v. U. S., 158 Fed. 579. 37 L. Ed. 1003. Edelstein v. U. 8., 149 Fed. 631. 73—Dimmick v. U. S., 185 Fed. 70—Johnston v. U. 8., 154 Fed. 257. 445. 166 FEDERAL CRIMINAL PROCEDURE [§ 274 that the prosecution has made out a prima facie case which has not been contradicted,7* but cannot attack defendant for not giving evidence of good character.” However, the prosecuting attorney may comment on the fact that the defendant had a witness in court who did not testify, if there is evidence that such witness has probable knowledge as to the facts relied on for the con- viction.7*' Defendants who do not ask for the reading of the in- dictment at arraignment thereby waive such reading and cannot subsequently complain if the indictment is partly read to the jury with clear and accurate explanations of the unread portions, where the trial court states that the defendant has a right to read the indictment to the jury in its entirety if he wishes to do so.”7 § 275. Improper argument—When prejudicial.—_A new trial will not ordinarily be granted by reason of improper argument by the prosecuting attorney unless the court’s attention was called to the impropriety at the time; 7° nor are such remarks ordinarily prejudicial when the jury are instructed by the court to disregard them.”® Im- proper argument of the prosecuting attorney should be promptly objected and excepted to.®° Improper remarks of counsel which are promptly with- drawn when the court rules that they are improper are usually deemed to be cured *! and the court has a dis- 74—Carlisle v. U. 8., 194 Fed. 1. Woods v. U. S., 174 Fed. 651. 827. Richards v. U. S. 175 Fed. 911. 75—Lowdon v. U. S&., 149 Fed. 673. Wilson v. U. 8., 149 U. 8. 60; 39 L. Ed. 650. Bacon v. U. S., 97 Fed. 35. 76—U. 8S. v. Chandler, 65 Fed. 308. - 77—Gardes v. U. S., 87 Fed. 172. Gallot v. U. S., 87 Fed. 446. : 78—Carlisle v. U. S., 194 Fed. 827. 79—Ammerman v. U. S8., 185 Fed. Carroll v. U. S., 154 Fed. 425. U. S. v. Snyder, 14 Fed. 554. 80—Higgins v. U. S., 185 Fed. 710. Chadwick v. U. S., 141 Fed. 225. Shelp v. U. S,, 81 Fed. 694.. 81—Dunlap v. U. S., 165 U. &. 486; 41 L. Ed. 799. Dimmick v. U. 8. 121 Fed. 638. \ § 278] SPECIAL FEATURES 167 cretion as to counsel’s argument and should not stop it unless improper and injurious,® but it is clearly \the court’s duty to stop improper prejudicial remarks by prosecuting counsel such as comments on the absence from the trial of the defendant’s wife,®* or the making of an incorrect statement of law.*4 The refusal of the court to exclude jurors during argu- ments over the admissibility of evidence is not prejudicial where the court instructs the jury to disregard such - arguments.®> E—COURT’S DUTIES AND POWERS § 276. In general.—A trial judge in the federal court is not a mere presiding officer, it being his function to conduct the trial in an orderly way with a view to elicit- ing the truth and attaining justice between the parties, and he is authorized to interrogate witnesses and express his opinion on the weight of the evidence and the credi- bility of the witnesses.®* § 277. Administering oaths.—A judge of the district court has power to administer oaths in matters arising in his court or coming before him as a judicial officer, as such power is incident to his judicial office.’” § 278. Examination of witnesses.—While the court at his discretion may participate in the examination of wit- nesses, it is reversible error for him to do so in such a manner as will lead the jury to think the court has a fixed opinion that the defendant should be convicted,®® and any examination of the witnesses by the court in a 82—Chadwick v. U. S., 141 Fed. 86—Kettenbach v. U. S., 202 Fed. 225. 377. 83—Graves'v. U. S., 150 U. 8. 87—U. S. v. Ambrose, 2 Fed. 556. 118; 37 L. Ed. 1021. 88—Adler v. U. S., 182 Fed. 464. 84—Bryan v. U. 8., 133 Fed. 495. 85—Holt v. U. 8., 218 U. 8. 245; 54 L, Ed. 1021. 168 FEDERAL CRIMINAL PROCEDURE [§ 278 manner indicating that those for the defense are testify- ing falsely is improper.®® However, the direct examina- tion, cross-examination and recross-examination are all largely subject to the court’s discretion. Thus, he may allow a witness to be recalled to change his statements made on cross-examination,®! and permit the prosecutor to recall the defendant for further cross-examination after the close of the defendant’s case.% The opposing party has a right to a full and fair cross- examination of witnesses on the subject of their direct examination, and the party calling a witness has the right to restrict his cross-examination to the subjects of his direct examination. Violation of these rights is not discretionary with the court but is reversible error, and the defendant comes within these rules the same as any other witness.°? And the depriving of the defense of the benefit of cross-examination is substantial error, as by sustaining the refusal of the prosecuting attorney to allow defendant’s counsel to inspect a paper which has been used to refresh the recollection of a witness.** Ordi- narily cross-examination to test a witness’ credibility and his accuracy is largely subject to the court’s discretion.*® It has been held that the exclusion of certain cross- examination on the ground that the direct examination did not open up the matter, is not prejudicial error where such matter is not offered subsequently in the trial,°* and cross-examination is unnecessary where none of the wit- ness’ direct testimony has been material to the issue,®” but cross-examination to show the interest of the witness 89—Glover v. U. 8., 147 Fed. 426. 94—Morris v. U. S., 149 Fed. 123. 90—Jacobs v. U. S., 161 Fed, 694, 95—Blitz v. U. 8., 153 U. 8. 308; 91—Faust v. U. 8., 163 U. 8. 452; 38 L. Ed. 725. Foster v. U. S., 178 41 L. Ed. 224. Fed. 165. 92—Kalen v. U. 8., 196 Fed. 888. 96—Putnam v. U. S., 162 U. S. 93—Harrold v. Oklahoma, 169 687; 40 L. Ed. 1118. Fed. 47. Tingle v. U. 8., 87 Fed. 97—Radin v. U. S., 189 Fed. 568. 320. § 282] SPECIAL FEATURES 169 is proper,®® and the defendant may be asked on cross- examination if he has been confined in prison,®® and generally questions regarding the age, antecedents, busi- ness and experience of a witness are largely in the court’s discretion, which is usually not reviewable. The judicial discretion of the court in allowing testimony in rebuttal is not reviewable unless grossly abused.? § 279. Regulating order of proof.—Regulation of the order of proof rests in the sound discretion of the court. The order of testimony used should be arranged by counsel subject to the court’s discretion.” But the erroneous rejection of competent evidence is not cured by a suggestion by the court that if offered later in the trial it may be admissible.® § 280. Allowance of leading questions—Leading ques- tions are permitted in the court’s discretion to expedite the case, if without prejudice to the defendant; * but the abuse of that discretion may be reviewed by the appellate court.5 § 281. Time for motions.—The court has a discretion to order that a motion to dismiss be made at the close of the testimony.® § 282. Exclusion of witnesses and spectators.—The refusal of the court to exclude witnesses during the trial is discretionary and will only be reviewed for abuse of 98—Ammerman v. U. S, 185 Fed. 1. 40 L. Ed. 237. Stockslager v. U. 8., 116 Fed. 590. 99—Lang v. U. 8., 133 Fed. 201. 100—Cochran v. U. S., 157 U.S. 286; 39 L. Ed. 704. 101—Goldsby v. U. S., 160 U. 8. 70; 40 L. Ed. 343. 1—Taylor v. U. 8., 89 Fed. 954. Turner v. U. &, 66 Fed. 280. 2—Thiede v. Utah, 159 U. S. 510; 3—Edgington v. U. 8., 164 U. 8. 361; 41 L. Ed. 467. 4—Hart v. U. S., 183 Fed. 368. Peters v. U. S., 94 Fed. 127. 5—Nurnberger v. U. 8., 156 Fed. 721, 6—Dillard v. U. S., 141 Fed. 303. 170 FEDERAL CRIMINAL PROCEDURE [§ 282 such discretion,’ and the decision of the trial court upon an objection to a witness on the ground of nonage or lack of intelligence is not reviewable except for abuse of dis- cretion.® It has been held that a witness who disobeys the court’s order for exclusion from the court room is not necessarily disqualified by such disobedience, but his testimony is open to comment to the jury by reason of such conduct.® . A public trial is not denied the defendant in a rape case by the judge’s order excluding spectators but allow- ing court officers, members of the bar and all persons in any manner connected with the court to remain.’° § 283. Process for witnesses.—The granting or refusal of an application for process for witnesses made during the trial, and of a motion for delaying the trial for such purpose lies in the discretion of the court.1 § 284. Ruling on continuances.—Error ordinarily does not lie to the court’s action on a motion for continuance, which is in the discretion of the court.1?_ As in other dis- cretionary matters the court’s action regarding con- tinuances is not reviewable unless abuse is shown.”? _ Where an affidavit for a continuance contained some false statements and was partly overcome by counter affidavits and was also defective because it offered in part to produce immaterial evidence, refusal of a con- tinuance was not an abuse of judicial discretion.* 456; 54 L, Ed. 566. Hardy v. U. 8, 7—Bromberger v. U. 8., 128 Fed. ; 186 U. S. 244; 46 L. Ed. 1137. 346. 8—Wheeler v. U. S., 159 U. 8S. 523; 40 L. Ed. 244. 9—Holder v. U. S., 150 U. 8. 91; 37 L. Ed. 1010. , 10—Reagan v. U. S., 202 Fed. 488. 11—Crumpton v. U. S., 188 U. 8. 361; 34 L. Ed. 958. 12—Pickett v. U. 8., 216 U. S. 13—Goldsby v. U. 8., 160 U. 8. 70; 40 L. Ed. 343, Isaacs v. U. 8., 159 U. S. 487; 40 L. Ed. 229. Cal- lahan v. U. S., 195 Fed. 924. Clem- ent v. U. S., 149 Fed. 305. Latham v. U.S., 210 Fed. 159. 14—Hardy v. U. 8., 186 U. 8. 224; 46 L. Ed. 1137. § 286] SPECIAL FEATURES 171 A motion for a continuance because of the absence of . Witnesses must show due diligence on the part of the moving party to procure the attendance of such wit- nesses.15 And if the testimony of the absent witness would be only of a rebutting nature, denial of a contin- uance is not an abuse of discretion:1® But if defendant has been diligent in endeavoring to secure the attendance of witnesses, and is unable to do so because of lack of notice of the time of trial and unexpected change of the place of trial, refusal of a continuance is an error neces- sitating a new trial.’7 § 285. Change of venue when judge interested in case. —Sec. 20, Judicial Code. ‘‘Whenever it appears that the judge of any district court is in any way concerned in interest in any suit pending therein, or has been of coun- sel or is a material witness for either party, or is so related to or connected with either party as to render it improper, in his opinion, for him to sit on the trial, it shall be his duty, on application by either party, to cause the fact to be entered on the records of the court; and also an order that an authenticated copy thereof shall be forthwith certified to the senior circuit judge for said circuit then present in the circuit; and thereupon such proceedings shall be had as are provided in section four- teen.’’ 1912 Supl. Fed. Stats. Anno. 137 § 286. Interest of judge discussed.—A judge is not a party concerned or interested in a case under this statute merely because at the hearing of an antecedent civil case he seemed indignant when it appeared that a criminal offense had been committed and ordered the matter in- vestigated by a government officer.1® 15—Isaaes v. U. 8., 159 U.S. 487; 17—Younge v. U. S., 223 Fed. 40 L. Ed. 229. Goldsby v. U.S, 941. 160 U. S. 70; 40 L. Ed. 343, 18—Epstein v. U. S&S. 196 Fed. 16—Latham v. U. S., 210 Fed. 354. 159. 172 FEDERAL CRIMINAL PROCEDURE [§ 287 § 287. Change of venue when judge prejudiced.—Sec. 21, Judicial Code. ‘‘ Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or pro- ceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated in the man- ner prescribed in the section last preceding, or chosen in the manner prescribed in section twenty-three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The same proceedings shall be had when the presiding judge shall file with the clerk of the court a certificate that he deems himself unable for any reason to preside with absolute impartiality in the pending suit or action.’’ 1912 Supl. Fed. Stats. Anno. 137. § 288. Remarks by court to jury.—A remark by the court before the jury that the guilt of a certain co-de- fendant was an established fact in the community has’ been held prejudicial error 1° and this applies generally to prejudicial remarks by the court in the presence of the jury even though they have not been impaneled.” However, remarks by the court not in the jury’s hearing are not prejudicial.*4 Prejudicial remarks by court to jury in the absence of 19—Hawkins v. U. S., 116 Fed. 20—Allen v. U. 8., 115 Fed. 3. 569. 21—Lillis v. U. S., 190 Fed. 530. § 291] SPECIAL FEATURES 173 defendant and his counsel, constitute reversible error. And generally the rule is that the judge should not com- municate with the jurors except in open court and in the presence of counsel for both sides.?? § 289. Supervision of jury.—It is a common practice to recall the jury after they have been in deliberation for some time, to ascertain what their difficulties are in considering the case and to make proper efforts to help them to a solution. The time of such recall is in the court’s discretion.”* But it is improper for the judge to ask how the vote of the jury stands when they return to court to request additional instructions.?* If defendant does not wish the jury to deliberate further after they have been out a long time, such as forty-eight hours, he should object at the time if the court orders mate jury to consider the case further.2® If the defendant desires that the officer in Seas of the trial jury be especially sworn he should so request the court.?¢ ; § 290. Defacto judges.—A judge from one district who serves in another upon designation by a superior judge in accordance with the statute is no less than a defacto judge whose official actions are not subject to question by defendant.?" F—DUE PROCESS OF LAW § 291. Due process of law to be observed.—Amendment V, United States Constitution. ‘‘No person shall . be deprived of life, liberty or property, without dua process of law.’’? 9 Fed. Stats. Anno. 288. 22—Doyle v. U. S., 10 Fed. 269. 26—Ball v. U. S., 140 U. S. 118; 23—Allis v. U. 8., 155 U.S.117; 35 L, Ed. 377. 39 L. Ed. 91. 27—McDowell v. U. S., 159 U. 8. 24—Campbell v. U. S., 221 Fed. 596; 40 L. Ed. 271. 186. 25—Burton v. U. S., 196 U. S. 288; 49 L. Ed. 482. = ' 174 FEDERAL CRIMINAL PROCEDURE [§ 292 § 292. Due process of law defined.—Due process of law within the meaning of the Constitution is secured by laws operating on all alike and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice.”® Due process has been observed where accused has been heard in a court of competent jurisdiction and proceeded against under the orderly process of law and punished only after inquiry and investigation on notice with opportunity to be heard and judgment awarded within the authority of a constitutional law.” _ §293. Due process—Matters not required by.—Due process does not prohibit the use of depositions in crim- inal cases under certain circumstances; ?° nor the giving of a discretion to the judge as to sentencing within estab- lished limits a person convicted of offenses for a third time; *! nor trial by struck jury; *? nor prosecution for felony by information; ** nor assessment of costs by the jury against the prosecution in accordance with stat- ute ®4 nor require grand jury proceduré and opportunity for examination of witnesses before accused is informed. against by the district attorney; ** nor indictments by a grand jury of less than thirteen members; ** nor require allowance of an appeal or writ of error upon conviction; ** 28—Leeper v. Texas, 139 U. 8S. 462; 35 L. Ed. 225. 29—Ong Chang Wing v. U. S., 218 U.S. 272; 54 L. Ed. 1040. 30—West v. La., 194 U. 8. 259; 48 L. Ed. 965. 31—Ohio v. Dollison, 194 U. 8. 446; 48 L. Ed. 1062. 32—Brown v. New Jersey, 175 U. 8. 172; 44 L, Ed. 119. 33—Bolln v. Nebraska, 176 U. 8S. 83; 44 L. Ed. 382. Maxwell v. Dow, 176 U. S. 581; 44 L. Ed. 597. Hodgson v. Vermont, 168 U. 8. 263; 42 L. Ed. 461. Hurtado v. Califor- nia, 110 U. S. 516; 28 L, Ed. 232. MeNulty v. California, 149 U. S. 645; 37 L. Ed. 882. 34—Lowe v. Kansas, 163 U. 8S. 81; 41 L. Ed. 78. 35—Lem Woon v. Oregon, 229 U. S. 586; 57 L. Ed, 1340. Caldwell v. Texas, 137 U. 8S. 692; 34 L. Ed. 816. 36—Talton vy. Mayes, 163 U. S. 376; 41 L. Ed. 196. 37—Kohi v. Lehlback, 160 U. 8S. 293; 40 L. Bd. 432. Reetz v. Michi- gan, 188 U. S. 505; 47 L. Ed. 563. § 293] SPECIAL FEATURES 175 nor admission to bail periding appeal; ** nor freedom from self-crimination; *° nor trial by a petit jury of crim- inal cases.*° It has been held that due process ordinarily is not denied when the trial is conducted in accordance with the customary forms of criminal trials.“ 38—McKane v. Durston, 153 U. 8. 684; 38 L. Ed. 867. — 39—Twining v. N. J., 211 U. 8. 78; 53 L. Ed. 97. 40—Hodgson v. Vermont, 168 U. 8. 263; 42 L. Ed. 461. Hurtado v. ‘ California, 110 U. 8. 516; 28 L. Ed. 232. McNulty v. California, 149 U. S. 645; 37 L. Ed. 882. 41—Miller v. Texas, 153 U. 8. 535; 38 L. Ed. 812. / CHAPTER XII THE CHARGE TO THE JURY f § 294. Manner of Delivering Charge. § 295. Issues of Fact to Be Decided by Jury. § 296. Issues of Fact Becoming Questions of Law. § 297. Comment on Evidence by Judge. § 298. Curing Errors by the Charge. § 299. Requested Instructions—When to Be Given. § 300. Error in the Charge. § 801. Charge to Be Considered as an Entirety. § 302. Time for Exceptions to Charge. | § 294. Manner of delivering charge—Federal courts are not required to conform to the state practice, in charg- ing the jury.? The better practice is for the court to charge the jury as a body and not each juror individually.2. Ordinarily the instructions should be read to the jury in the court room or they should be allowed to read such themselves, but if instructions are taken by the jury on retirement “without having been read in the court room, such irreg- ularity is not prejudicial;* and the action of the trial court on a motion to allow the jury to take out certain instructions is discretionary.* Parties waiving by conduct their right to written in- structions cannot urge the giving of oral instructions as error® § 295. Issues of fact—Decision by jury.—In United States courts it is the duty of the jury to receive the law 1—Steers v. U. S., 192 Fed. 1. 4—Garst v. U. S., 180 Fed. 339. 2—Shepard v. U. S., 160 Fed. 584, 5—Williams v. U. 8., 158 Fed. 30. 38—Winters v. U. 8., 201 Fed. 845. 176 § 295] THE CHARGE TO THE JURY 177 from the court and to apply it as given by the court, subject to the condition that by a general verdict a jury of necessity determines both the law and facts as com- pounded in the issues submitted to them in the particular case.® , The greatest caution should be used by the trial judge in expressing his opinion of the facts, and the jury should be left free and untrammeled in the determination of questions of fact, and in no instance should the judge express an opinion as to the guilt of defendant after the case has been submitted to the jury and they have reported their inability to agree.” Although in criminal cases it is proper for the court to charge the jury as to the legal presumption arising from a given state of facts, it is improper by a peremptory instruction to require the jury to find the accused guilty of the offense charged or of an offense less than the one charged. And it is error for the court to instruct the jury to disregard certain evidence on the ground that it is contrary to the laws of nature if such evidence be com- petent notwithstanding its incredible nature.® The jury are the judges of the facts, such as to whether a withdrawal from a fight was bona fide on a plea of self defense;!° and as to the voluntary character of confes- sions, where the evidence is conflicting on that point 1 (but it has been held also that whether a confession is voluntary or not is for the court, and that it is not proper for the jury to hear evidence thereon).!12 The jury also are the judges of whether a person is a fugitive from 6—Sparf v. U. S., 156 U. S. 51; 39 L. Ed. 343. 7—Foster v. U. S., 188 Fed. 305. Garst v. U. 8., 180 Fed. 339. 8—Sparf v. U. S., 156 U. 8. 51; 39 L. Ed. 3438. 9—Post v. U. 8., 135 Fed. 1. 10—Rowe v. U. S., 164 U. 8. 546; 41 L. Ed. 547. See also Barton v. Forsyth, 20 How. 532; 15 L. Ed. 1012. McDonald v. U. S., 63 Fed. 426. 11—Kent v. Porto Rico, 207 U. 8. 113; 52 L. Ed. 127. Wilson v. U. S., 162 U. 8. 613; 40 L. Ed. 1090. Shaw v. U. 8., 180 Fed. 348. j2—Harrold v. Oklahoma, 169 Fed. 47. 178 FEDERAL CRIMINAL PROCEDURE [§ 295 justice or not; 1 and as to whether or not a certain writing is obscene, first, however, is the preliminary question for the court as to whether or not the paper could reasonably be held to be obscene.‘ The credibility of witnesses also is for the jury, and the court should not by heaping injurious epithets upon witnesses virtually remove the determination of their credibility from the jury.1* The jury also are judges of whether or not a defendant is sane or insane.!” Instructions assuming certain facts to be proved are not erroneous where the court repeatedly instructs the jury that they are the sole judges of the facts and that the court’s views of the facts are not controlling1® The weight of the evidence and the extent to which it is explained or contradicted by witnesses is exclusively for the jury.’® , § 296. Issues of fact becoming questions of law.—If evidence upon any issue is clear and uncontradicted, the result is a question of law on which the court may instruct the jury.?° An instruction has been held proper that if the jury found the defendant guilty there was nothing in the case to reduce the crime below the grade of murder when in fact there was no evidence to so reduce the crime.” And it has been held that where evidence in support of a matter of defense does not justify its submission to the 19—Hedderly v. U. S., 193 Fed. 13—Porter v. U. S., 91 Fed. 494. 561, Dimmick v. U. S., 135 Fed. 14—Knowles v. U. S., 170 Fed. 409. 15—Smith v. U. S., 161 U. 8. 85; 40 L. Ed. 626. Post v. U. 8., 135 Fed. 1. Dimmick v. U. S., 135 Fed. 257. 16—Smith v. U. 8., 161 U. S. 85; 40 L. Ed. 626. 17—Davis v. U. 8., 160 U. 8. 469; 40 L. Ed. 499. 18—Crain v. U. S., 162 U. 8. 625; 40 L, Ed. 1097. 257. Post v. U. S. 1385 Fed. 1. Turner v. U. S., 66 Fed. 280. 20—Rosen v. U. 8., 161 U. S., 29; 40 L. Ed. 606. 21—Andersen v. U. S., 170 U. 8. 481; 42 L. Ed. 1116. Davis v. U.S. 165 U. S. 373; 41 L. Ed. 750. Sparf vy. U. 8. 156 U. 8. 51; 39 L, Ed. 343. § 297] THE CHARGE TO THE JURY 179 jury, the court may instruct the jury that such matter is not material.2? However, if is error for the court to say that murder was of the first degree when the jury properly could have found it to be either first or second degree.?? The defend- ant has the right to have the decision of every material allegation of fact in the indictment left to the jury even though the evidence against the defendant be clear and uncontradicted, and an instruction to the jury that any material allegation of fact in the indictment has been proven against defendant is reversible error.”4 § 297. Comment on evidence by judge.—The court may state the rules of law applicable and leave the case to the jury without setting forth the facts or the inferences therefrom.?® The defendant has a right to a full statement of the law from the judge and when such statement is not given as by ignoring defendant’s evidence in the charge, there is sufficient ground for reversal.2° But the court when stating part of the testimony on a certain point need not state it all if he makes it plain that he is not attempting to state it fully.?7 The judge may express his opinion on the facts if he leaves the decision of them to the jury.?8 However, the trial judge, it has been held, should never express an opinion as to the guilt of defendant after the case has been submitted to the jury and they have reported their 22—Stubbs v. U. S., 111 Fed. 366, 23—Hurtado v. California, 110 U. S. 516; 28 L. Ed. 232. 24—Konda v. U. S., 166 Fed. 91. 25—Gourdain v. U. 8., 154 Fed. 453. 26—Bird v. U. S., 180 U. S. 356; 45 L. Ed. 570. 27—Allis v. U. 8., 155 U. S. 117; 39 L. Ed. 91. 28—Keller v. U. S., 168 Fed. 697. Smith v. U. S., 157 Fed. 721. Breese Byrne’s Crim. Proe.—14 v. U. S., 106 Fed. 680. Endleman v. U. S., 86 Fed. 456. Wiborg v. U. — S., 163 U. 8S. 632; 41 L. Ed. 289. Allis v. U. S8., 155 U. 8S. 117; 39 L. Ed. 91. Hart v. U. S., 84 Fed. 799. MacDonald v. U. S., 63 Fed. 426. Woodruff v. U. 8S. 58 Fed. 766.’ Simmons v. U. S., 142 U. S. 148; 39 L. Ed. 968. Brown v. U. 8., 142 Fed. 1. Ching v. U. S., 118 Fed. 538. Starr v. U. 8., 153 U. 8. 614; 38 L. Ed. 841. 180 FEDERAL CRIMINAL PROCEDURE [§ 297 inability to agree.2® And instructions depriving the defendant of any presumption of law to which he is entitled, such as that of good character, are fatally defect- ive, the rule being that when no evidence is produced by either side as to defendant’s character, he is entitled to a charge that character is presumed to be good.” All comment by the judge should be judicial and dispassion- ate, and the mere withdrawal of objectionable remarks is not always sufficient to remove their effect.** Nor should the judge appeal to the passions or prejudice of the jury; ®? nor express his indignation in terms inconsistent either with due regard to the jury’s right to exercise an independent judgment or with the circumspection and caution which should characterize judicial utterances; *? nor should the judge say that in his opinion it is the duty of the jury to convict.** § 298. Curing errors by the charge.—Where the court instructs the jury to disregard improper remarks by the prosecutor, the error is cured except in cases where it is so flagrant as necessarily to raise a presumption of prejudice to defendant.?°> An error in the admission or rejection of evidence is usually cured by instructions to the jury to disregard such evidence.** However, an instruction tending to eliminate from the case one of the defendant’s elements of defense con- stitutes material error, such as insisting that a scheme alleged to be fraudulent was in fact bound to fail and to cause a loss to buyers of stock from the defendant, thus eliminating from the defense the good faith offered by the defendant. And such error is not necessarily cured 29—Foster v. U. 8., 188 Fed. 305. 34—Breese v. U. S., 108 Fed. 804. 30—Mullen v. U. S., 106 Fed. 892. 35—Stewart v. U. 8., 211 Fed. 41. 31—Rudd v. U. 8., 173 Fed. 912. 36—Dimmick v. U. S., 135 Fed. 32—Hickory v. U. S, 160 U.S. 257. Tubbs v. U. S., 105 Fed. 59. 408; 40 L. Ed. 474. Francis v. U. S., 152 Fed. 155. 33—Starr v. U. S., 153 U.S. 614; Krause v. U. S., 147 Fed. 442. 38 L. Ed. 841. i § 299] THE CHARGE TO THE JURY a 181 by general remarks of the court to the effect that he does not intend to influence the jury.®” § 299. Requested instructions—When to be given.— The refusal of the court to give an instruction specifically requested to which defendant is entitled is reversible error.2® And when instructions tendered by defendant’s counsel are given as part of the charge to the jury, the judge should not comment unfavorably on them.?° However, when the charge as a whole is correct, the court’s failure to instruct specifically on certain points when not requested to do so, is not error.*° The court is not forced to:adopt the language which counsel uses in requested instructions, but may set forth the proposition in his own terms if he fully covers the ground indicated by the request,*: and the court, after instructing once on a certain proposition, such as the pre- sumption of innocence, need not repeat such charge in requested instructions.*? The court need not give a requested instruction even though it be technically correct, unless there is evidence in the case on which to base it; *® and generally the ‘court need not give a requested instruction which does not relate to the matters in controversy; ** so that an instruc- 37—Sandals v. U. 8., 213 Fed. 569. 38—Stevenson v. U. 8., 86 Fed. 106. 39—Burton v. U. S., 196 U. S. 283; 49 L. Ed. 482. 40—Goldsby v. U. 8., 160 U. 8. 70; 40 L. Ed. 343. Trias v. U. S., 159 U. S. 487; 40 L. Ed. 229. orn v. U. S., 182 Fed. 721. Alexis v. U. S., 129 Fed. 60. Robinson v. U. S., 172 Fed. 105. Johnson v. U. S., 170 Fed. 581. 41—Thiede v. Utah, 159 U. 8. 510; 40 L. Ed. 237. Brown v. U. S., 142 Fed. 1. Alexis v. U. S., 129 Fed. 60. Stockslager v. U. S., 116 Fed. 590. Dorsey v. U. S., 101 Fed. 746. Kettenbach v. U. 8., 202 Fed. 377. Mackenzie v. U. S., 209 Fed. 289. Horn v. U. S., 182 Fed. 721. Garst v. U. S., 180 Fed. 399. Gour- dain v. U. S., 154 Fed. 453. Tucker v. U. S., 151 U. S. 164; 38 L. Ed. 112. Browne v. U. S., 145 Fed. 1. 42—Allen v. U. S., 164 U.S. 492; 41 L. Ed. 528. Blanton v. U.S., 213 Fed. 320. 43—Crain v. U. S., 162 U. S. 625; 40 L, Ed. 1097. Schmidt v. U. S., 133 Fed. 257. Betts v. U. S., 132 Fed. 228. Holmgren v. U. 8, 156 Fed. 439. Brown v. U.S., 142 Fed. 1. 44—O’Leary v. U. 8., 158 Fed. 182 FEDERAL CRIMINAL PROCEDURE [§ 299 tion as to manslaughter is unnecessary when there is no testimony to reduce the offense, if any, below the grade of murder; *> but where the evidence is not conclusive that a killing is murder, it is error to refuse to charge the jury upon the issue of manslaughter as well as upon murder.*® An instruction which recites as facts matters which in reality are in dispute should be refused; likewise an instruction may be properly refused unless it should have been given in the very terms in which it was offered.‘7 If the jury desires certain portions of the charge | re-read, the court need read only such portions and need not reiterate other parts at the defendant’s request.*® When numerous requests for instructions are offered so late that the court cannot properly examine them, he is justified in the refusal of them as a whole.*® § 300. Error in the charge——Immaterial errors in the charge are not reviewable.*° However, if the court’s instruction, though correct in itself necessarily can have no connection with the case except to mislead the jury, the error is prejudicial, such as an instruction that every sane man is conclusively presumed to intend the neces- sary and probable consequences of his acts, in a case which requires proof of a specific criminal intent.5* And an instruction not to convict unless the proof shows guilt beyond a reasonable doubt does not sufficiently embody a statement as to the presumption of innocence so as to justify a refusal to charge as to such presumption when 797. Bird v. U. 8, 187 U. 8. 119; 47 L. Ed. 100. Agnew v. U. 8., 165 U.S. 36; 41 L. Ed. 624. Roberts v. U. S., 126 Fed. 897. Diggs v. U. 8., 220 Fed. 545. 45—Davis v. U. S., 165 U.S. 378; 41 L. Ed. 750. Sparf v. U..S., 156 U. 8. 51; 39 L. Ed. 343. 46—Stevenson v. U. S., 162 U. 8. 313; 40 L. Hd. 980. 47—Blanton v. U. S., 213 Fed. 320. 48—Rieger v. U. S., 107 Fed. 916. 49—MacF adden v. U. S., 165 Fed. 61. 50—Rieger v. U. S., 107 Fed. 916. 51—Hibbard v. U. S., 172 Fed. 66. § 301] THE CHARGE TO THE JURY 183 requested to do so.*? It is also error for the court to instruct the jury to assume the existence of a fact which ‘the jury should decide for itself, or of one in support of which there is no evidence.®* Likewise error is com- mitted when the charge mentions and is founded on evi- dence on one side and disregards evidence in contradic- tion of the same point; ** but a misstatement of the evi- dence caused by defendant’s counsel and not called to the court’s attention is not material, and the court may assume as true facts proven by the evidence, namely, by admission of defendant while a witness.®¢ An instruction erroneously placing the burden of proof on defendant is fatally prejudicial; >? and comment by the court on defendant’s failure to produce letters referred to by a government witness constitutes prejudi- cial error.®® A charge which practically defeats the com- petency of a defendant as a witness for himself by means of injurious remarks of the court is prejudicially erro- neous; °° however, the court may in proper terms remind the jury of the defendant’s interest as affecting his credibility.©° An instruction which, if erroneous, refers only to one of two counts on which defendant has been convicted and _sentenced, is not prejudicially erroneous, as the judgment will be sustained by the count unaffected by the error.®+ § 301. Charge to be considered as an entirety.—The charge must be considered as an entirety and extracts 52—Coffin v. U. 8. 156 U. S. 432; 39 L. Ed. 481. 58—Dolan v. U. 8.; 123 Fed. 52. 54—Allison v. U. S&S. 160 U. 8S. 203; 40 L. Ed. 395. 55—Horn v. U. 8., 182 Fed. 721. 56—Mgy v. U. 8., 157 Fed. 1. 57—Williams v. U. 8., 158 Fed. 30. Perara v. U. S., 221 Fed. 213. 58—Hibbard v. U. S., 172: Fed. 66. 59—Allison v. U. S., 160 U. S. 203; 40 L. Ed. 395. Hickory v. U. 8., 160 U. 8S. 408; 40 L. Ed. 474. Reagan v. U. S., 157 U. S. 301; 39 L. Ed. 709. Hicks v. U. 8., 150 U. 8. 442; 37 L. Ed. 1187. 60—Reagan v. U. S., 157 U. 8. 301; 39 L. Ed. 709. Johnson v. U. 8., 157 U. S. 320; 39 L. Ed. 717. 61—Charles v. U. S., 213 Fed. 707. 184 FEDERAL CRIMINAL PROCEDURE [§ 301 therefrom cannot be considered alone but must be taken in connection with such parts as refer to the same mat- ter.°? Generally language not entirely accurate is harm- less when the same point is specifically and correctly covered by another part of the charge.®* But in a capital case parts of a charge which are not full enough are not corrected by full instructions in another part on the same point, as it is impossible to determine which of the two statements was acted on by the jury.** § 302. Time for exceptions to charge.—Exceptions to the court’s charge should be brought to the court’s attention before the jury retire so that the court may have an opportunity to correct the errors, if any. And an exception to instructions made after the jury retire is of no avail.®® 62—Colt v. U. S&S, 190 Fed. 305. . 63—Morse v. U. 8., 174 Fed. 539. Robertson v. Arizona, 188 Fed. 783. 64—Mills v. U. S., 164 U. S. 644; Horn v. U. 8., 182 Fed. 721. Walsh 41 L. Ed. 584. v. U. S., 174 Fed. 615. Alexis v. U. 65—Hickery v. U. S., 151 U. 8. S., 129 Fed. 60. Blake v.U.S., 71 303; 38 L. Ed. 170. Fed. 286. Hotema v. U. 8., 186 U. 66—Rogers v. U. S., 180 Fed. 54. 8. 413; 46 L. Ed. 1225. Stewart v. Greene v. U. S., 154 Fed. 401. U. S., 211 Fed. 41. Charles v. U. ° S., 213 Fed. 717. \ : § 303. § 804. § 805. § 306. § 307. § 308. § 309. § 310. § 311. § 312. § 313. § 314. § 315. § 316. § 817. § 318. § 319. § 320. § 321. CHAPTER XIII THE VERDICT General and Specific Verdicts. Different Verdicts as to Different Counts. Verdict Against Part of Several Joint Defendants. Verdict in Consolidated Cases. Verdict of Less Offense than Charged. Decisions Regarding Verdicts for Lesser Offenses. Qualified Verdicts in Capital Cases. . Qualified Verdict—Question for Jury. Directing Verdict of Acquittal. Verdict of Guilty Cannot Be Directed. Directing Verdict in Quasi-Criminal Cases. Verdict—Sufficiency of Evidence. Sealed Verdicts. Verdict on Sunday. General Verdict Sustained by One Good Count. Repugnancy and Surplusage in Verdict. Verdict—When Indictment Too Broad. Verdict as Affected by Conduct of Jury. Verdict—Effect on Errors. § 303. General and specific verdicts —Inasmuch as each count is practically a separate indictment a verdict is proper which finds specifically as to each count.2 _ However, a verdict of guilty as charged is, proper where defendant is found guilty on all counts in the indictment.2 And a general verdict of guilty will be con- sidered as equivalent to a verdict of guilty on each count in the indictment.® 1—Selvester v. U. S., 170 U. 8. Dimmick v. U. S., 116 Fed. 825. 262; 42 L. Ed. 1029. Breese v. U. S., 106 Fed. 680. Dor- 2—Gardes v. U. 8., 87 Fed. 172. sey v. U. S., 101 Fed. 746. Gardes 8—Kaye v. U. S., 177 Fed. 147. v. U. S., 87 Fed. 172. Claassen v. 185 186 FEDERAL CRIMINAL PROCEDURE [§ 804 § 304. Different verdicts as to different counts—On an indictment containing several counts, if the verdict is guilty on one count and nothing is said as to the others, this is equivalent to a verdict of not guilty as to the counts not mentioned.* A verdict may find defendant guilty on one count, not guilty on another and disagree on a third, and judgment may be entered on the counts finally disposed of.® If in contemplation of law the legal effect of the counts on which there has been a verdict of guilty is the same, there is no inconsistency in the verdict. Likewise the same act may be charged in different ways in different counts, and acquittal or conviction of one or more does not affect the others,’ as each count is practically a separate indictment.® § 305. Verdict against part of several joint defendants. —Sec. 1036, Rev. Stats. ‘‘On an indictment against. - several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly; and the cause as to the other defendants may be tried by another jury.’’? 2 Fed. Stats. Anno. 353. § 306. Verdict in consolidated cases——When several criminal cases are consolidated, it is error for the court. to charge that the jury cannot find a verdict as to some defendants and disagree as to others.® § 307. Verdict of less offense than charged.—Sec. 1035, Rev. Stats. ‘‘In all criminal causes the defendant may be U. S., 142 U. 8. 140; 35 L. Ed. 966. 6—Walsh v. U. 8., 174 Fed. 615. Ballew v. U. S., 160 U. 8. 187; 40 7—Corbin v. U. 8., 205 Fed. 278. L. Ed. 388. 8—Selvester v. U. S., 170 U. 8. ‘4—Dealy v. U. 8., 152 U.S. 589; 262; 42 L. Ed. 1029. 38 L. Ed. 545. Peters v. U. 8., 94 9—Buceklin v. U. S., 159 U. 8. Fed. 127. 682; 40 L. Ed. 605. 5—Dolan v. U. S., 183 Fed. 440. Peters v. U. 8., 94 Fed. 127. § 310] ' THE VERDICT 187 found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense so charged: Provided, That such attempt be itself a separate offense.’’ 2 Fed. Stats. Anno. 352. § 308. Decisions regarding verdicts for lesser offenses. —Under this section if defendant is not shown to be guilty of the particular crime charged the jury may, if the evidence warrants, find him guilty of a lesser offense necessarily included in the one charged, or of an attempt to commit the one charged.” But, a verdict of guilty is a conviction of the crime directly charged in the indict- ment (as murder—not the included crime of manslaugh- ter)... However, it has been held that upon a verdict finding defendant guilty of a greater offense than was warranted by the evidence, the court has power to pro- nounce judgment for a lesser included offense which is supported by the evidence.” § 309. Qualified verdict in capital cases—Sec. 330, Criminal Code: ‘‘In all cases where the accused is found guilty of the crime of murder in the first degree, or rape, the jury may qualify their verdict by adding thereto ‘without capital punishment;’ and whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to imprisonment for life.’’ 1912 Supl. Fed. Stats. Anno. 494. § 310. Qualifying verdict—Question for jury.—On ren- dering a verdict of guilty in a murder case the question as to whether it shall be without capital punishment, is one for the jury to decide uninfluenced by the court.18 € 10—Sparf v. U. S., 156 U. 8. 51; 12—U. 9. v. Linnier, 125 Fed. 88. 39 L. Ed. 343. 13—Winston v. U. 8, 172 U. 8, " J1—St. Clair v. U. S., 154 U. S. 3038; 43 L. Ed. 456. 184; 38 L. Ed. 936. 188 FEDERAL CRIMINAL PROCEDURE [§ 311 § 311. Directing verdict of acquittal—When the evi- dence for the government if assumed to be true in fact, together with all reasonable inferences therefrom, is not legally sufficient to support a verdict of guilty, it is the trial court’s duty, upon motion, to direct a verdict of acquittal.‘ On motion for the direction of an acquittal, the question for the court is whether there is sufficient evidence to go to the jury; © but the weight of the evi- dence is not in question;?° and where the question of the sufficiency of the evidence is largely determined by the credibility of witnesses, the case should be left to the jury.‘* Where the prosecuting attorney in his opening statement clearly and deliberately admits a fact which must necessarily prevent a conviction and require an acquittal, the court may direct a verdict for the accused.1® The sufficiency of evidence to support a conviction can- not be reviewed on writ of error where no request has been made for a verdict of acquittal at the close of the evidence.!® The findings of a jury upon conflicting evi- dence as to points of fact are conclusive in the appellate court; 7° and on reviewing the question of whether a verdict should have been directed for defendant, the appellate court will look to see only whether there was any evidence to sustain the verdict.”! The introduction of evidence by defendant constitutes a waiver of a motion for a directed verdict made at the close of the government’s case,?? and the strength of the government’s case must then be decided on a new motion 14—Duff v. U. 8., 185 Fed. 101. 15—Clyatt v. U. S., 197 U. S. 207; 49 L. Ed. 726. Hedderly v. U. 8., 193 Fed. 561. 16—Sprinkle vy. U. S., 141 Fed. 811. 17—Higgins v. U. 8. 185 Fed. 710... 18—U. 8. v. Dietrich, 126 Fed. 676. 19—Rimmerman v. U. S., 186 Fed. 307. Simpson v. U. S., 184 Fed. 817. 20—Morse v. U. S., 174 Fed, 539. 21—Cohen v. U. S., 214 Fed. 23. 22—Goldman ‘v. U. 8., 220 Fed. 57. Sandals v. U. S., 213 Fed. 569. Simpson v. U. S., 184 Fed. 817. Stearns v. U. S., 152 Fed. 901. But see Goll v. U. S., 166 Fed. 419. § 313] THE VERDICT 189 to direct a verdict after both sides have rested, on the entire record made.?3 A motion to direct a verdict saves for review questions of substantial defects in the indictment raised by such motion; 24 however, it is necessary in all cases to state specifically the grounds for such motion as otherwise assignments of error thereon may be disregarded; 2° and a general exception to a refusal to direct a verdict is insufficient to preserve the question of variance for review.?® ‘ A motion for a verdict at the close of the prosecution’s case which is not renewed at the close of defendant’s case' does not raise the question of the sufficiency of the evidence.?? § 312. Verdict of guilty cannot be directed—In a criminal case the court cannot direct a verdict of guilty even where the facts are admitted beyond dispute, and the question of guilt or innocence depends wholly upon a question of law which the court must determine.?® Like- wise it is error for the court to coerce the jury into a verdict, especially where the circumstances indicate that but for such coercion the jury would not have agreed.?® But the judge may instruct the jury that it is their duty if possible to come to an agreement, and he may within proper limits use argument and solicitation showing the desirability of a verdict.*° § 313. Directing verdict in quasi criminal cases.—Pen- -alties for criminal causes are usually enforcible both by indictment and by civil suit, and when the government 23—Kaye v. U. S., 177 Fed. 147. 27—Gould v. U. S., 209 Fed. 730. Burton v. U. 8., 142 Fed. 57. Tuck- 28—U. S. v. Taylor, 11 Fed. 470. er v. U. 8., 224 Fed. 183. | 29—Peterson v. U. 8., 213 Fed. 24—Hillegass v. U. S., 183 Fed. 920. 199. Stearns v. U. S., 152 Fed. 901. 30—Suslak v. U. S., 213 Fed. 913, 25—Horn v. U. S., 182 Fed. 721. 26—Richardson v. U. S., 181 Fed. 1. 190 FEDERAL CRIMINAL PROCEDURE [§ 313 chooses to proceed in such cases by indictment, a verdict cannot be directed against defendant by the court.2! But where the government proceeds by civil action, a verdict may be directed against the defendant on undisputed testimony.°? § 314. Verdict and sufficiency of evidence—Where there is sufficient evidence to go to the jury its decision is conclusive on the facts and the appellate court will not determine the guilt or innocence of defendant by a preponderance of the evidence.*3 Where from the evidence a conclusion against the defendant may be reached the case should be submitted to the jury; ** but where all the substantial elements are as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a judgment of convic- tion; *° and a verdict should be instructed for defendant unless the evidence is sufficient to warrant a reasonable conclusion of his guilt.®* Where no motion for a directed verdict has been made at the trial the point that the evidence does not support the verdict cannot be heard in the appellate court.®” Where a statute prescribes a moneyed penalty recover- able in a civil suit for a criminal act, the prosecution must prove its allegations beyond a reasonable doubt.** % 31—U. 8. v. Stevenson, 215 U. S. 34—Hart v. U. S., 84 Fed. 799. 190; 54 L. Ed. 153. 35—Union Pacifie Coal Co. v. U. 32—Hepner v. U. S., 213 U. S. S., 173 Fed. 737. 103; 53 L. Ed. 720. 36—Mickle v. U. 8., 157 Fed. 229. 33—Burton v. U. S., 202 U. 8S. U.S. v. Shapeleigh, 54 Fed. 126. 344; 50 L. Ed. 1057. Humes v. U. 37—McDonnell v. U. 8., 133 Fed. 8., 170 U. 8. 210; 42 L. Ed. 1011. 293. 2 Johnson v. U. 8., 157 U. S. 320; 39 88—U. 8. v. Shapeleigh, 54 Fed. L. Ed. 717. Matthews v. U. 8.192 126. U.S. v. Reagan, 203 Fed. 433. Fed. 490. Crumpton v. U. 8. 188 M. K. & T. Ry. Co. v. U. S., 178 U S. 361; 34 L. Ed. 958. Hoke v. Fed. 15, contra, A. T. & S. F. Ry. U. S., 227 U. 8. 308; 57 L. Ed. 523. Co. v. U. S., 172 Fed. 194. Van Schaick v. U. 8., 159 Fed. 847. ; Kellogg v. U. S., 103 Fed. 200. § 317] THE VERDICT 191 § 315. Sealed verdicts.—A sealed verdict received ‘by agreement of counsel and returned before separation of the jury is allowable.2° However, the jury should be present when a sealed verdict is opened in court.*° § 316. Verdict on Sunday.—No trial can be had nor judgment rendered on Sunday, but when necessary a verdict may properly be received on that day.*? § 317. General verdict sustained by one count.—A gen- eral verdict on several counts is sustained by any one good count.*? Likewise a general verdict on several counts which are all sufficient in form is good if any one count is sustained by the evidence.*? On writ of error where there is a general verdict and judgment upon an indictment containing several counts, the presumption is that judgment was rendered on the good counts, unless the contrary is shown by the record.** Where a conviction on two counts is erroneous as to one, the verdict will stand as to the good count unaffected by the reversal, although if the judgment appears to ‘have been affected by the bad count (as by inducing the imposition of a heavier sentence), the cause will be remanded with instructions to enter appropriate judg- ment on the good count and for proper proceedings with respect to the bad count.*5 39—Pounds v. U. 8., 171 U. 8. S. 303; 56 L. Ed. 448. Bartholomew 35; 43 L. Ed. 62. 40—Doyle v. U. S., 10 Fed. 269. 41—Ball v. U. 8., 140 U. S. 118; 35 L. Ed. 377. Stone v. U. S., 64 Fed. 667. 42—Claassen v. U. 8., 142 U. 8. 140; 35 L. Ed.-966. U.S. v. Pirates, 18 U. S. (5 Wheat.) 184; 5 L, Ed. 64. Woods v. U. S., 174 Fed. 651. Evans v. U. 8., 153 U. S. 584; 38 L. Ed. 830. Schraubstadter.v. U. S., 199 Fed. 568. Norton v. U. 8., 205 Fed. 598. Powers v. U. 8., 223 U. v. U. S., 177 Fed. 902. Billingsley v. U.S., 178 Fed. 653. 43—Goode v. U. S., 159 U. 8. 663; 40 L. Ed. 297. Lehman v. U. §S., 127 Fed. 41. Milby v. U. S., -120 Fed. 1. 44-Hardesty v. U. 8.5 168 Fed. 25. Hartman v. U. S., 168 Fed. 30. 45—Ballew v. U. S., 160 U. 8. 187; 40 L. Ed. 388. Johnson v. U. S., 215 Fed. 679. Wroclawski v. U. S., 183 Fed. 312. 192 FEDERAL CRIMINAL PROCEDURE [§ 318 §318. Repugnancy and surplusage in verdict.—Argn- ments based upon inconsistency and repugnancy in ver- dicts are not favored by the law; ** and surplusage in a verdict which does not affect its validity should be disregarded.*? Thus a verdict is not repugnant in find- ing a defendant not guilty on several counts each con- taining a single transaction, and guilty on one count containing all such transactions;** nor one findings defendant not guilty on the charge of obstructing justice and guilty on the charge of aiding and abetting, although under Criminal Code, Sec. 332 (Sec. 171 supra) one aid- ing and abetting is a principal.*® A verdict otherwise good is not vitiated by an unneces- sary additional finding as by stating the value of property involved in a case, as the non-essential portion may be regarded as surplusage and judgment entered on the valid portion of the verdict.© § 319. Verdict—When indictment too broad.—If the indictment is so broad, as by stating two supposedly unlawful intents, one of which is in legal effect innocent, that the verdict of guilty may be considered as a finding by the jury that the defendant committed only acts which are not forbidden by statute, the judgment cannot be sustained and a new trial will be ordered.®4 However, a verdict of guilty upon an indictment charging two acts, each of which is a crime, as the com- mitting of an offense and the causing it to be committed, is proper if the evidence sustains either charge.°? § 320. The verdict as affected by conduct of jury.— When the jury render a verdict within the issues, the 46—Davey v. U. 8., 208 Fed. 237. 51—Morgan v. U. S., 148 Fed. 47—Statler v. U. S., 157 U. S. 189. 277; 39 L. Ed. 700. 52—Richardson v. U. S., 181 48—Flickinger v.U.8.,150 Fed.1. Fed. 1. 49—Davey v. U. 8., 208 Fed. 237. \ 50—U. 8. v. Tyler, 11 U. 8. (7 Cranch.) 287; 3 L. Ed. 344. § 320] THE VERDICT 193 testimony of the jurors themselves should not be received to show matters which essentially inhere in the verdict and necessarily can require no corroboration.®? Like- wise, the testimony of jurors as to the information which affected their deliberations is inadmissible either to impeach or support their verdict; °¢ and a verdict is not impeachable by evidence of the jury that it was the result of a bargain or induced by coercion.® However, though matters resting in the personal con- sciousness of jurors are not ground for new trial, evi- dence of overt acts is receivable in support of such motion such as proof of the reading by a jury of a news- paper article injurious to defendant on trial.® Affidavits of jurors impeaching their verdict should be received with caution, but cases may arise in which to refuse them would violate the principles of justice; * but it is not error to deny a motion for a new trial based upon the affidavits of jurors to the effect that they did not understand the legal effect of their verdict.®® ‘Objections to the verdict on account of alleged miscon- duct of the jury should, if possible, be brought to the court’s attention before the verdict is received, and such objections based on unverified statements of counsel will not be considered; *® so also where the defendant did not raise the point during the trial, it was held that no special oath in addition to his oath of office was required on the part of the deputy marshal who had charge of the jury." 58—Hyde v. U. S., 225 U. 8. 347; 57—U. 8. v. Reid, 12 How. 361; 56 L. Ed. 1114. 13 L. Ed. 1023. 54—Holmgren v. U. S., 156 Fed. 58—Hendrix v. U. S., 219 U. 8S. 439, , - 79; 55 L. Bd. 102. 55—Hyde v. U. S., 225 U. S. 347; 59—Jackson v. U. &., 102 Fed. 56 L. Ed. 1114. 473, 56—Mattox v. U. 8. 146 U. S. 60—Ball v. U. S., 163 U. 8. 662; 140; 36 L. Ed. 917. Hendrix v. U. 41 L, Ed. 300. S., 219 U. 8. 79; 55 L. Ed, 102. 194 FEDERAL CRIMINAL PROCEDURE [§ 321 § 321. Verdict—Effect on errors.—The verdict cures formal but not substantial errors; * especially if formal errors pertaining to the indictment have not been raised by demurrer.®? Defects of substance are not cured by a verdict of guilty; °* and some defects which would be cured by a verdict will not be so cured if seasonable objection has been made by demurrer or motion to quash; * but it has been held that where it appears to the court that unless defective averments in the indictment were true, a verdict could not be sustained, such averments will be cured though they might have been bad on demurrer.* After verdict the indictment may be construed in the broadest sense authorized by the words used, even though it be adverse to the accused.** And where the evidence is such that no other verdict than that of guilty could have been reached by the jury, minor errors with respect to the conduct of the trial will not be considered material by the appellate court.®” Objections to the manner and mode of drawing and impaneling the grand jury and trial jury should be pre- sented as grounds of challenge either to the entire array or to the objectionable juror before trial, and when not so presented are cured by the verdict.*® 61—Hardesty v. U. S., 168° Fed. 64—McKenna v. U. S., 127 Fed. 25. Lehman v. U. 8., 127 Fed. 41. 88. King v. U. S., 112 Fed. 988. Grey 65—Lehman v. U. 8., 127 Fed. 41. v. U. 8, 172 Fed. 101. 66—Price v. U. 8., 165 U. 8. 311; 62—Dunbar v. U. S., 156 U. 8. 41 L. Ed. 727. Rosen v. U. S., 161 185; 39 L. Ed. 890. Nemeof v. U. U.S. 29; 40 L. Ed. 606. S., 202 Fed. 911. 67—Myers v. U. S., 223 Fed. 919. 63—U. S. v. Hess, 124 U. 8. 483; 68—Turner v. U. 8., 66 Fed. 280. 31 L. Ed. 516. CHAPTER XIV MOTION FOR NEW TRIAL AND MOTION IN ARREST -§ 322, § 323. § 324. § 325. § 326, § 327. § 328. § 329. § 330. § 331. § 382. § 333. OF JUDGMENT A—MOTION FOR NEW TRIAL New Trial in Discretion of Court. Time for Motion for New Trial. Defendant’s Presence at Motion for New Trial. New Trial as to Some of Joint Defendants. Disqualification of Jurors as Ground for New Trial. Separation of Jury as Ground for New Trial. Evidence Not Produced at First Trial, as Ground for New Trial. Information Improperly Given to Jury, as Ground for New Trial. Error in Admission or Rejection of Evidence, as Ground for New Trial. Error in Charge, as Ground for New Trial. B—MOTION IN ARREST OF JUDGMENT. Grounds for Motion in Arrest. Time for Motion in Arrest. A-—MOTION FOR NEW TRIAL § 322. New trial in discretion of the court.—The granting or refusal of a new trial is usually discretionary with the trial court;! but the rejection of affidavits show- ing good cause for a new trial is error where the trial 1—Pickett v. U. S., 216 U.S. 456; Holder v. U. 8., 150 U.S. 91; 87 L. 54 L. Ed. 566. Bucklinv. U..S.,159 Ed.1010. Lueders v. U. 8., 210 Fed. U. 8. 682; 40 L. Ed. 305. Adding- 419. Kettenbach v. U. S., 202 Fed. ton v. U. S., 165 U. 8. 184; 41 L. 377. Mitchell v. U. 8., 196 Fed. Ed. 679. Blitz v. U. S., 153 U. 8S. 874. Daniels v. U. 8, 195 Fed. 459. 308; 38 L, Hd. 725. Moore v. U. Hedderly v. U. S., 193 Fed. 561. 8., 150 U. 8S. 57; 37 L. Ed. 996. Corenman'v. U. S., 188 Fed. 424. 195 Byrne’s Crim. Proce. —15 196 FEDERAL CRIMINAL PROCEDURE [§ 322 court exercises no discretion in excluding them. But the court’s ruling that affidavits in support of a motion for a new trial are insufficient is not reviewable;? and after the court has taken a motion for a new trial under advisement it is discretionary with him as to whether or not to hear oral evidence or receive cuniulative affidavits.? § 323. Time for motion for new trial.—A motion for a new trial can only be entertained at the same term at which sentence is pronounced.* And the granting of a new trial, upon motion made after the expiration of the term, may be forbidden by the Circuit Court of Appeals by writ of prohibition, when the case is properly before it.5 But where it is shown after conviction that material and prejudicial testimony given against defendant was false, defendant’s laches in applying for a new trial on the ground of newly discovered evidence will be disre- garded by the court.® § 324. Defendant’s presence at motion for new trial._— The defendant’s presence is not essential at the making of a motion for a new trial.’ § 325. New trial as to some of joint defendants.— Where some of the defendants have been convicted and others acquitted a new trial may be granted as to the former without affecting the verdict as it relates to the latter.®’ : § 326. Disqualification of jurors as ground for new trial—aA new trial will be granted only where the record shows that an impartial jury may not have been selected, la—Mattox v. U. S., 146 U. S. 4—Trafton v. U. S., 147 Fed. 513. 140; 86 L. Ed. 917. Dwyer v. U. 5—U, 8. v. Mayer, 235 U. S. 55; S., 170 Fed. 160. Ogden v. U.S, 59 L. Ed. 129. 112 Fed. 523. 6—U. 8. v. Radford, 131 Fed. 378. 2—Kulp v. U. S., 210 Fed. 249. 7—Alexis v. U. S., 129 Fed. 60. Andrews v. U. 8., 224 Fed. 418. 8—Browne v. U. S., 145 Fed. 1. : 3—Hillman v. U. 8, 192 Fed. 264. § 329] MOTION FOR NEW TRIAL 197 either because of the exhaustion of defendant’s peremp- ° tory challenges and the selection of a juror over his objection, or by some other equally cogent evidence.? So a variance between a juror’s name in the jury list and in the jury panel is not ground for a new trial when the identity of the person was not disputed and he acted dsa juror in good faith and was the person intended to be summoned.?° § 327. Separation of the jury as ground for new trial. —Separation of the jury in a murder case has been held not reversible error in the absence of facts showing prej- udice to defendant.1! § 328. Evidence not produced at first trial as ground for new trial.—The existence of evidence known to, and available to, defendant at the time of trial, but not pro- duced, does not justify the granting of a new trial.1? Nor will the appellate court consider. affidavits on the subject of newly discovered evidence which are not part of the record and which are handed the court during the . argument on writ of error.12 And generally the rule is that such affidavits will not be considered in the review- - ing court, unless theretofore presented to the trial court as the basis for a motion for a new trial.'4 § 329. Information improperly given to jury as ground for new trial.—The giving of any material paper or evi- dence to the jury which has not been introduced in evi- dence will be cause for setting aside the verdict unless defendant’s counsel fails to object to the matter at the proper time.*® Thus, the giving to the jury of a copy of an indictment bearing an endorsement of guilt by a 9—Simpson v. U. 8., 184 Fed. 817. 12—Angle v. U. S., 162 Fed. 264. 10—Chadwick v. U. S., 141 Fed. 13—Kulp v. U. 8., 210 Fed, 249. 225. 14—Whitaker v. U. S., 220 Fed. 11—Holt v. U. S., 218 U. 8S. 245; 114. 54 L. Ed. 1021. See also U. 8. v. 15—Holmgren v. U. 8., 217 U. S. Davis, 103 Fed. 457. 509; 54 L. Ed. 861. 198 FEDERAL CRIMINAL PROCEDURE [§ 329 previous jury is fatal error without any necessity for showing that the jury actually read such endorsement; 1 and the reading by the jury of a newspaper article injurious in tendency to the defendant which apparently had considerable influence on the verdict constitutes ground for a new trial; ‘” and, in another case the appear- ance of an injurious article in a newspaper was held ground for a new trial, although apparently no proof was made that the jurors knew of, or saw, the article.1® An instruction that the jury may test opium to see whether it is for smoking purposes, after retiring to the jury room, is error inasmuch as it allows the jury to consider evidence not introduced at the trial and not produced in defendant’s presence.1® But the fact that the jury unknown to the court and attorneys, obtained a copy of the federal statutes is not reversible error where such action apparently did not influence the verdict.?° §.330. Error in admission or rejection of evidence as ground for new trial.—The admission of irrelevant or incompetent evidence is usually fatal;?1 because it is presumed prejudicial since the appellate court cannot determine what effect the acceptance or rejection of evi- dence has had on the jury.?? The erroneous admission of evidence which is not prejudicial, however, is not ground for a new trial; 7° thus, where the defendant practically admits guilt, no prejudice will be found in an erroneous ruling as to other evidence; 74 and an error in admitting evidence under a count on which the defendant is acquitted is imma- 16—Ogden v. U. 8., 112 Fed. 523. 21—Sparks v. Oklahoma, 146 Fed. 17—Mattox v. U. 8S. 146 U.S. 37L 140; 36 L. Ed. 917. 22—King v. U. S., 112 Fed. 988. 18—Harrison v. U. S8., 200 Fed. 23—Dimmick v. U. 8., 116 Fed. 662. See, however, Lewellen v. U. 825. 8., 223 Fed. 18. 24—Motes v. U. S., 178 U. 8. 458; 19—Wilson v. U. §., 116 Fed. 484. 44 L. Ed.-1150. 20—Oolt v. U. S., 190 Fed. 305. \ § 331] MOTION FOR NEW TRIAL 199 terial; ?5 so also the improper reception of evidence is not ground for reversal if the evidence is subsequently ruled out and the jury directed to disregard it.”® The acquiescence of the defendant in the erroneous reception of evidence cures the error;?7 and the erro- neous reception of evidence not properly excepted to will not entitle defendant to a new trial unless it appears that the error is prejudicial.”® . A new trial will not be granted because of the admis- sion of evidence which has been wrongfully obtained, as such evidence is not for that reason inadmissible.?® Experiments to test the truth of the evidence may be allowed in the discretion of the court such as allowing a gun to be discharged in the presence of a marshal to see if it scattered shot. ' §331. Error in charge as ground for new trial Any misdirection by the trial court on matters material to the issue is ground for a new trial, such as a misdirection with respect to the evidence on self-defense in a murder case; *1 or that an essential element of the crime stated in the indictment is surplusage;* or that.a certain statute is controlling when it is not; *4 or that the defend- ant has the burden of proof as to an alibi; ** or failure to charge as to the presumption of innocence when requested to do so;** or depriving defendant of the 25—Dunbar v. U. S., 156 U. S. 185; 39 L. Ed. 390. 31—Allen v. U. S., 157 U.S. 675; 39 L. Ed. 854. See also Gourko v. 26—Calicchio v. U. S., 189 Fed. 305. ‘ 27—Franklin v. U. S., 193 Fed. 334, 28—Keliher v. U. S., 193 Fed. 8. 29—Hedderly v. U. 8., 193 Fed. 561. Bacon v. U. 8., 97 Fed. 35. May v. U. 8., 199 Fed. 42. 30—Ball v. U. S., 163 U. S. 662; 41 L. Ed. 300. U. S., 153 U. S. 183; 38 L. Ed. 680. Owens v. U. S., 130 Fed. 279, 32—McKnight v. U. §., 111 Fed. 735. 33—Dow v. U. 8., 82 Fed. 904. 34—Glover v. U. S., 147 Fed. 426. 35—Cochran v. U. 8., 157 U. S. 286; 39 L. Ed. 704. 1 200 FEDERAL CRIMINAL PROCEDURE [§ 331 benefit of the doctrine of reasonable doubt; ® or a mis- direction as to any other important matter.®” However, when a judgment is founded on several counts it will not be reversed for an erroneous instruc- tion which applies only to part of the counts. B—MOTION IN ARREST § 332. Grounds for motion in arrest.—Judgment can only be arrested for matters appearing in the record and the evidence is not part of the record for this. purpose.*® A motion in arrest will be granted when the indictment is substantially defective; *° and such motion saves for review questions as to the sufficiency of the indictment which were raised by such motion.*? A court may in its discretion allow the discussion of the sufficiency of the indictment during the trial, but ordinarily such matters should only be urged and heard on demurrer, motion to quash or motion in arrest.*? § 333. Time for motion in arrest.—A motion in arrest cannot be entertained after sentence and after the term at which sentence was entered has expired.*® 36—Adler v. U. S., 182 Fed. 464. Garst v. U. S., 180 Fed. 339. 37—Post v. U. 8., 135 Fed. 1. Balliett v. U. S., 129 Fed. 689. Mel- ton v. U. S., 120 Fed. 504. 38—Morse v. U. S., 174 Fed. 539. 39—De Molli v. U. S., 144 Fed. 363. U.S. v. Maxey, 200 Fed. 997. 40—Floren v. U. S., 186 Fed. 961. Morris v. U. S., 168 Fed. 682. 41—Hillegass v. U. S., 183 Fed. 199. : 42—U. S. v. Gooding, 25 U. 8. (12 Wheat.) 461; 6 L. Ed. 693. 43—MclInerney v. U. S., 147 Fed. 183. § 334. § 335. § 336. § 337. § 838. § 339. § 340. § 841. § 342. § 343. § 344, § 345. -§ 346. § 347. § 348. § 349. § 350. § 351. § 352. § 353. § 354, § 355. § 356, § 357. § 358, § 359. § 360. § 361. § 362. § 363. § 364. § 365. CHAPTER XV THE SENTENCE Effect of State Laws. Imprisonment for More Than a Year—Place of. Decisions Regarding Sentence to Imprisonment for More than a Year. i Sentence to Hard Labor—Place of. Decisions Regarding Sentences to Penitentiary Impris- onment. | Hard Labor—Imposition of. Hard Labor—Form of Sentence. Death Punishment by Hanging. Death Sentence—Time and Place of Execution. Dissection of Body of Person Executed. Execution in Capital Cases Postponed Pending Appel- late Proceedings. Discharge of Indigent Convicts. Decisions Regarding Discharge of Indigent Convicts. Whipping and the Pillory Forbidden. Cruel and Unusual Punishments Forbidden. Cruel and Unusual Punishments Defined. Corruption of Blood and Forfeiture of Estate Forbidden. Imprisonment to Enforce Payment of Fine. Sentencing of Corporations. Abatement of Fine by Death. Affirmance of Conviction—Effect of. Several Sentences as to Joint Defendants. Calling on Defendant to Speak Before Sentence. Cumulative Sentences—When Proper. Concurrent Sentences—When Proper. Running of Sentence. Postponement of Sentence. Suspension of Sentence. Change of Sentence. Correction of Sentence. Incompetency through Conviction. Error in Sentence. f f 201 202 FEDERAL CRIMINAL PROCEDURE [§ 334 § 334. Effect of state laws.—The federal courts in pro- nouncing sentence pending proceedings in error follow the common law and not the state law. § 335. Imprisonment for more than a year—Place of. — Sec. 5541, Rev. Stats. ‘‘In every case where any person convicted of any offense against the United States is sentenced to imprisonment for a period longer than one year, the court by which the sentence is passed may order the same to be executed in any state jail or peni- tentiary within the district or state where such court is held, the use of which jail or penitentiary is allowed by the legislature of the state for that purpose.’’ 6 Fed. Stats. Anno. 36. § 336. Decisions regarding sentences to imprisonment of more than a year— Where a statute prescribes punish- ment by imprisonment but does not require confinement in the penitentiary, a sentence for confinement of not longer than a year cannot be executed in a penitentiary ; ? and generally under Rev. Stats. 5541 a sentence to a penitentiary is proper_only when it is for a period of more than a year; ® the court having a discretion as to whether or not the confinement shall be in a penitentiary.* Consecutive sentences amounting to more than a year may be considered as one and name a penitentiary as a . place of imprisonment.® § 337. Sentence to hard labor—Place of execution.— Sec. 5542, Rev. Stats. ‘‘In every case where any criminal convicted of any offense against the United States is sentenced to imprisonment and confinement to hard 1—Pooler v. U. S., 127 Fed. 509. 4—Ex parte Karstendick, 93 U. 2—In re Mills, 185 U. S. 263; 34 8. 396; 23 L. Ed. 889. L. Ed. 107. 5—Thompson v. U. S., 204 Fed. 3—In re Bonner, 151 U. S. 242; 973. 88 L. Ed. 149. Francis v. U. 8., 152 Fed. 155. Haynes v. U. S., 101 Fed. 817. § 340] THE SENTENCE 203 labor, it shall be lawful for the court by which the sentence is passed to order the same to be executed in any state jail or penitentiary within the district or state where such court is held, the use of which jail or peni- tentiary is allowed by the legislature of the state for that purpose.’’ 6 Fed. Stats. Anno. 37. § 338. Decisions regarding sentences to penitentiary.— The court may follow the designation made by the Attorney General as to the place of imprisonment upon finding no place in the district or state proper therefor.® A defendant convicted of two different offenses on different trials may be sentenced to imprisonment in two different penal institutions.’ § 339. Hard Labor—Imposition of.—Sec. 338, Criminal Code. ‘‘The omission of the words ‘hard labor’ from the provisions prescribing the punishment in the various sections of this act, shall not be construed as depriving the court of the power to impose hard labor as a part _ of the punishment, in any case where such power now exists.’’? 1909 Supl. Fed. Stats. Anno. 496. § 340. Hard labor—Form of sentence.—In cases where the statute makes hard labor a part of the punishment, it is imperative that the court include it in the sentence.® Likewise when hard labor is not prescribed by the statute the sentence cannot include it; ® however, such error does not render the sentence void,’® and the appellate court may cure the error by striking out the improper portion 6—Ex parte Karstendick, 93 U.S. U.S., 50 Fed. 921. In re Johnson, 396; 23 L. Ed. 889. : 46 Fed. 477. 7—In re Walters, 128 Fed. 791. 9—Mitchell v. U. S., 196 Fed. 874. 8—Ex parte Karstendick, 93 U. Gardes v. U. S., 87 Fed. 172. Gal- 8. 396; 23 L. Ed. 889. In re Mills, lot v. U. S., 87 Fed. 446. 135 U. S. 263; 34 L. Ed. 107. Sor- 10—U. S. v. Pridgeon, 153 U. S. enson v. U. S., 168 Fed. 785. Inre 48; 38 L. Ed. 631. Christian, 82 Fed. 199. Harman v. 204 FEDERAL CRIMINAL PROCEDURE [§ 340 of the sentence." Notwithstanding the limitation above mentioned as to the use of the words hard labor in a sentence, the court may, where the imprisonment is for more than a year, order it to be in an institution where as a part of the discipline hard labor is enforced.!? § 341, Death punishment by hanging.—Sec. 323, Crim- inal Code. ‘‘The manner of inflicting the punishment of death shall be by hanging.’’ 1909 Supl. Fed. Stats. Anno. 493. § 342. Death sentence—Time and place of execution.— The time and place of execution are not part of a sentence of death unless made so by statute; }* and a statute may properly allow the date of execution of sentence of death to be fixed by the governor.1* And it has been held that the defendant cannot object that a law is ex post facto in changing the place of execution, as this is immaterial to the defendant.'® If the date of execution of sentence of death passes pending proceedings attacking the judgment, the court may without violating the defendant’s constitutional rights, name a new date for execution of sentence.*® § 343. Dissection of body of person executed.—Sec. 331, Criminal code. ‘‘The court before which any person is convicted of murder in the first degree, or rape, may, in its discretion, add to the judgment of death, that the body of the offender be delivered to a surgeon for dissec- tion; and the marshal who executes such judgment shall 11—Jackson v. U. &., 102 Fed. 14—Holden v. Minn., 137 U. 8. 473. 483; 34 L. Hd. 734. 12—Ex parte Karstendick, 93 U. 15—Rooney v. N. D., 196 U. 8. S. 396; 23 L. Ed. 889. 319; 49 L. Ed. 494. 18—Cross v. Burke, 146 U. S. 82; 16—Craemer v. Washington, 168 36 L. Ed. 896. Holden v. Minn., 137 U. 8, 125; 42 L. Ed. 407. U. 8. 483; 34 L. Ed. 734. Schwab v. Berggren, 143 U. S: 442; 36 L. Ed. 218, § 345] THE SENTENCE 205 deliver the body, after execution, to such surgeon as the court may direct; and such surgeon, or some person appointed by him, shall receive and take away the body at the time of execution.’’ 1909 Supl. Fed. Stats. Anno. 495. § 344. When a capital case is carried to the Supreme Court execution postponed.—Sec. 1040, Rev.’ Stats. ‘Whenever a judgment of death is rendered in any court of the United States, and the case is carried to the Supreme Court in pursuance of law, the court rendering such judgment shall, by its order, postpone the execution thereof from time to time and from term to term, until the mandate of the Supreme Court in the case is received: and entered upon the records of such lower court. In case of affirmance by the Supreme Court, the court rendering the original judgment shall appoint a day for the execution thereof; and in case of, reversal, such further proceedings shall be had in the lower court as the Supreme Court may direct.’’ 2 Fed. Stats. Anno. 354. § 345. Discharge of indigent convicts.—Sec. 5296, Rev. Stats. ‘‘When a poor convict, sentenced by any court of the United States to be imprisoned and pay a fine, or fine and costs, or to pay a fine, or fine and costs, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and costs, such convict may make application in writing to any commissioner of the United States court in the district where he is imprisoned setting forth his inability to pay such fine, or fine and costs, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the matter. If on examination it shall appear to him that such convict is unable to pay such fine, or fine and costs, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner 206 FEDERAL CRIMINAL PROCEDURE [§ 345 shall administer to him the following oath: ‘I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil process for debt by the laws of (naming the state where oath is administered) ; and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit. So help me God.’ Upon taking such oath such convict shall be discharged; and the com- missioner shall give to the keeper of the jail a certificate setting forth the facts.’’? 3 Fed. Stats. Anno. 106. § 346. Decisions regarding discharge of indigent con- victs.— Under Rev. Stats. 5296 (and Rev. Stats. 1042, 3 Fed. Stats. Anno. 99) a person confined for non-payment of a fine may, after serving thirty days’ time be dis- charged upon making affidavit that he is without means to pay the fine, and this section is applicable as well to penitentiaries as to jails proper.’’ § 347. Whipping and pillory forbidden.Sec. 325, Criminal Code. ‘‘The punishment of whipping and of standing in the pillory shall not be inflicted.’’ 1909 Supl. Fed. Stats. Anno. 493. § 348. Cruel and unusual punishments forbidden— Amendment VIII, United States Constitution. ‘‘ ‘ nor (shall) cruel and unusual punishments (be) in- flicted.’? 9 Fed. Stats. Anno. 352. § 349. Cruel and usual punishments defined.—This con- stitutional provision applies to national and not to state legislation.1® Ordinarily a punishment within the limits prescribed by statute is not cruel and unusual, as the sentence is 17—Haddox v. Richardson, 168 475; 18 L. Ed. 608. O’Neil v. Vt, Fed. 635. 144 U. S. 323; 36 L. Ed. 450. 18—Pervear v. Mass., 5 Wall. § 853] THE SENTENCE 207 within the trial court’s discretion.‘® However, a punish- ment even within statutory limits which is out of all pro- portion to the gravity of the offense is cruel and unusual.2° So also as to a punishment which involves torture or a lingering death.21 And the infliction of death alone is not a cruel or unusual punishment; *? and the fact that death is to be inflicted by shooting does not make such punishment cruel or unusual; 2? and a sentence to ten years in prison for an assault with a dangerous weapon has been held not to be cruel or unusual.?* § 350. Corruption of blood and forfeiture of estate for- bidden.—Sec. 324, Criminal Code. ‘‘No conviction or judgment shall work corruption of blood or any forfei- ture of estate.’’ 1909 Supl. Fed. Stats. Anno. 493. § 351. Imprisonment to enforce payment of fine.— When a sentence is to pay a fine the court may in its discretion order imprisonment until the fine is paid.?> § 352. Sentencing of corporations.—Where a statute specifies penalties by both fine and imprisonment that fact does not exempt corporations from its provisions and they may be fined thereunder.”® § 353. Abatement of fine by death—An unpaid fine abates by death of the person ordered fined2”_ The rule, however, has been stated somewhat differently, to this effect, that the death of the defendant abates both the fine -and the prosecution in which it was rendered, unless the term has passed at which judgment was rendered with- 19—Jackson v. U. S., 102 Fed. 473. 20—Weems v. U. 8., 217 U. 8. 349; 54 L. Ed. 793. 21—In re Kemmler, 136 U. 8. 436; 34 L. Ed. 519. 22—In re Kemmler, 136 U. §. 436; 34 L. Ed. 519. Wilkerson y. Utah, 99 U. S. 130; 25 L. Ed. 345. 23—Wilkerson v. Utah, 99 U. 8. 130; 25 L. Ed. 345. 24—Jackson v. U. S., 102 Fed. 473. 25—Ex parte Jackson, 96 U. 8S. 727; 24 L. Ed. 877. 26--U. S. v. Union Supply Co., 215 U. S. 50; 54 L. Ed. 87. 27—Dyar v. U. 8., 186 Fed. 614. 208 FEDERAL CRIMINAL PROCEDURE [§ 353 out appeal or writ of error.?8 And in civil contempt the rule seems to be that a fine does not abate with death.?° A proceeding to set aside a criminal judgment because of defendant’s death is a civil action independent with regard to the criminal case.*° § 354. Affirmance of conviction—Effect of—Upon the | affrmance of a judgment of conviction the defendant need not be sentenced anew by the trial court, as the judgment is not vacated by an appeal only its execution” heing temporarily stayed.31 On receipt of the mandate of the Count of Appeals affirming a judgment of conviction it is the trial court’s duty in the absence of instructions to the contrary to see that the judgment is carried into execution.®? After affirmance, the trial court cannot modify the judgment to the defendant’s disadvantage, as by adding costs against defendant.*? § 355. Several sentences as to joint defendants.—Sev- eral sentences, whether by fine or imprisonment, may be imposed upon defendants convicted jointly of crime.®* § 356. Calling on defendant to speak before sentence.— At common law it was reversible error for the court to fail to call upon the defendant in a capital case to ascer- tain if he had anything to say before sentence of death was passed upon him, thus giving him an opportunity to allege any ground of arrest, or plead a pardon if he had obtained one, or to urge any legal objection to further proceedings against him; *° however, the Supreme Court has intimated that such error might be cured by sen- tencing a second time with the proper procedure.*® 28—Dunne v. U. 8., 173 Fed. 254. 33—Morris v. U. 8., 185 Fed. 73. 29—Wasserman v. U. S., 161 Fed. 34—Tanner v. U. 8., 66 Fed. 280. 722. . 85—Schwab v. Berggren, 143 U. 30—U. S. v. Dunne, 173 Fed. 254. S, 442; 36 L. Ed. 218. 31—-Schwab v. Berggren, 143 U. 36—Ball v. U. S., 140 U. 8. 118; 8. 442; 36 L. Ed. 218. 35 L. Ed. 377. 32—Angle v. U. S., 162 Fed. 264. ; § 357] THE SENTENCE 209 In misdemeanors the defendant need not be asked by the court if he has anything to say why sentence should not be pronounced against him.’7 \ §357. Cumulative sentences—When proper.—Upon conviction on separate counts for distinct offenses, the sentences ordinarily may be made consecutive and cumu- lative.38 The consolidation of indictments for distinct offenses does not deprive the court of the power to render cumu- . lative sentences;*® nor does the fact that separate offenses are described in different counts in a single indictment; *° thus a verdict on two or more counts charging crimes of the same character but growing out of distinct and separate offenses will support a sentence for a specified term on each count, which terms may be consecutive, and it has been held erroneous to sentence for a certain period in gross if such gross sentence exceeds the maximum possible under the principal count; +! but if such gross sentence does not exceed that possible under the principal count, the irregularity, if any, cannot be attacked by habeas corpus as the sentence is not void.4? But separate offenses committed at one time as part of a continuous criminal act inspired by one general ¢rim- inal intent are susceptible of but one punishment,* thus burglary with intent to commit larceny and actual larceny,** and larceny of a mail pouch containing letters and larceny of such letters, and larceny of the contents of such letters.“ Under these rulings the defendant can- not be made to suffer more than the maximum punish- 37—Turner v. U. S., 66 Fed. 280. 555. Blake v. Moyer, 206 Fed. 559, 38—Chadwick v. U. S., 141 Fed. Blake v. Moyer, 208 Fed. 678. 225. 43—Munson v. McClaughry, 198 39—Howard v. U. S., 75 Fed. 986. Fed. 72. 40—McDonald v. U. S., 63 Fed. 44—Stevens v. McClaughry, 207 426. | Fed. 18. 41—U. 8S. v. Peeke, 153 Fed. 166. 45—Halligan v. Wayne, 179 Fed. 42—Howard v. Moyer, 206 Fed. 112. 210 FEDERAL CRIMINAL PROCEDURE [§ 357 ment for one offense.4¢ The rule is similar where several counts of an indictment charge the same crime in various ° ways as by forgery of a national bank note and forgery of signature to-such note.47 But when criminal acts such as cutting open mail bags, though continuous in some respects, each constitute a complete offence, consecutive sentences may be imposed for the different crimes.*® § 358. Concurrent sentences—When - proper.—Ordi- narily any one good count in an indictment sustains a general sentence not excessive as to such count.*? Like- wise concurrent sentences on consolidated indictments will not be ground for reversal if any of the indictments are good and sustained by evidence.*° However, if the evidence or instructions relating to a bad count prejudice ° _ the defendants on the good count, the judgment will be reversed.5+ The rule that one good count will support a judgment seems to apply only to cases where all counts in the indictment are for offenses against a single inhibition of law; 2 and where the elements involved in the different counts were not identical and the trial judge assessed the punishment on the basis that defendant was guilty of all the different offenses charged, a resentence was held proper.®? 46—Anderson v. Moyer, 193 Fed. 499. See also O’Brien v. Me- Claughry, 209 Fed. 816. ee 47—Logan v. U. 8., 123 Fed. 291. 48—Ebeling v. Morgan, 237 U. S. 625; 59 L. Ed. 1151. Compare Mor- gan v. Devine, 237 U. S. 632; 59 L. Ed. 1153. 49—Krause v. U. S., 147 Fed. 442. N.C. R. R. Co. v. U. S., 169 Fed. 76. Bartholomew v. U. 8., 177 Fed. 902. Shepard v. U. 8., 160 Fed. 584. Goll v. U. S., 151 Fed. 412. Clement v. U. S., 149 Fed. 305. Botsford v. U. S., 215 Fed. 510. Evans v. U. &., 153 U. S. 584; 38 L. Ed. 830. Kalen v. U. S., 196 Fed. 888. U.S. v. Lair, 195 Fed. 47. Harvey v. U. S., 159 Fed. 419. Cook v. U. S., 159 Fed. 919. Greene v. U. S., 154 Fed. 401. Tubbs v. U. S., 105 Fed. 59. Haynes v. U. 8., 101 Fed. 817. Gardes v. U. S., 87 Fed. 172. Ryan v. U. S., 216. Fed. 13. 50—Billingsley v. U. S., 178 Fed. 653. 51—Dwyer v. U. S., 170 Fed. 160. Miller v. U. S., 174 Fed. 35. 52—Ballew v. U. S., 160 U. 8S. 187; 40 L. Ed. 388. Wroclawski v. U. S., 183 Fed. 312. 53—Johnson v. U. 8., 215. Fed. § 359] THE SENTENCE 211 Ordinarily an error in the admission of evidence as to one good count does not affect the judgment on other counts charging separate and distinct offenses.°¢ Where several counts charge offenses each of which is but a step in a single transaction and a sentence is based upon a general verdict or plea, such sentence must impose only one penalty (for instance on charges of forging and utter- ing forged instruments).5> And several offenses which are committed at one time and are parts of a continuous criminal act inspired by the same criminal intent which is an essential element of each offense are susceptible of but one punishment.*¢ It has been intimated that when two sentences are imposed, they run concurrently unless otherwise speci- fied.*” And where three sentences were based upon three indictments, providing for a term of imprisonment upon each of the three indictments ‘‘said terms not to run con- currently,’’ the quoted words were held uncertain and incapable of application and the sentences considered as running concurrently.®® § 359. Running of sentence.—A sentence may direct that one term of imprisonment shall begin at the termina- tion of another, and if the first imprisonment be set aside on appeal, the second imprisonment should be begun on the day set for the first; *® if the second of three suc- cessive terms is void, the third term will begin on the termination of the first.®° If the party’s own action, such as seeking review on 679. Ballew v. U. S., 160 U.S. 187; 40 L. Hd. 388. Wroclawski v. U. 8., 183 Fed. 312. : 54—Brown v. U. S., 142 Fed. 1. 55—U. 8S. v. Carpenter, 151 Fed. 214, 56—Munson v. McClaughry, 198 Fed. 72. Stevens v. McClaughry, 207 Fed. 18. Halligan v. Wayne, 179 Fed. 112. Byrne’s Crim. Proc.—16 57—Kirkman v. McClaughry, 160 Fed. 436. 58—U. S. v. Patterson, 29 Fed. 775. : 59—Blitz v. U. S., 153 U. 8. 308; 38 L. Ed. 725. 60—U. 8S. v. Carpenter, 151 Fed. 214. 212 FEDERAL CRIMINAL PROCEDURE [§ 359 supersedeas, postpones the running of sentence he must serve the full sentence regardless of the expiration of:the . time set forth therein.*t So also when the execution of a sentence is suspended by proceedings in error the term is to be computed from the time when the defendant is actually incarcerated.*? And as the sentence does not begin to run until the imprisonment actually commences it is not satisfied by defendant’s offer to surrender and serve it, if such offer be not accepted by the authorities.® However, the running of a sentence is not delayed by the improper action of the marshal in failing to deliver the prisoner for imprisonment on the date specified in the sentence.® § 360. Postponement of sentence.—The courts have no power to suspend sentence except for a short period pending the determination of other motions or questions arising in the case after verdict.6° And where the court has by an order indefinitely suspended sentence, it cannot thereafter at a subsequent term reject such order and proceed to the judgment by sentencing the defendant.® Postponement of a sentence from a special term of court at which a verdict of guilty was reached to a regular term two weeks later at defendant’s request does not render the proceedings void.®? The trial court is not compelled to postpone sentence notwithstanding the pendency of a writ of error or appeal.®8 § 361. Suspension of sentence.——Suspension of execu- tion of sentence until the next term of court after con- viction, unaccompanied by any pending motion for a rehearing or modification of judgment or other proceed- 61—Dimmick v. Tompkins, 194 U. 65—U. S. v. Wilson, 46 Fed. 748. 8. 540; 48 L. Ed. 1110. 66—U. 8. v. Wilson, 46 Fed. 748. 62—In re Morse, 117 Fed. 763. 67—Gonzales v. Cunningham, 164 63—Morris v. U. 8., 185 Fed. 73. U.S. 612; 41 L. Ed. 572. 64—In re Jennings, 118 Fed. 479. 68—Pooler v. U. 8., 127 Fed. 509. § 363], THE SENTENCE 213 ings taken at the term when judgment was rendered, leaves the judgment in full force and the court without jurisdiction to proceed further in the case.® § 362. Change of sentence.—The court may during the same term set aside the judgment,” but cannot do so. thereafter... Thus after the expiration of the term during which sentence has been imposed the court is without power to order the removal of the prisoner from one institution to a different one.7? After the expiration of the term at which sentence was imposed it cannot be modified by a nunc pro tunc order, as the office of such order is to supply omissions in the record of what was actually done but which was not entered on the record through mistake or neglect, but not to modify orders previously made nor to make an order which was in fact. intended to be made but was not made.73 When the authorized portion of a sentence which is too broad. has been performed the courts cannot even at the same term modify the judgment to the disadvantage of the defendant; and if a second unfavorable sentence is passed in such a situation it is void.7* And in the absence of the contingencies enumerated in Rev. Stats. 5546, (6 Fed. Stats. Anno. 41) the government is not authorized without the consent of the prisoner, to move that the judgment and sentence of the court be modified.” § 363. Correction of sentence——The Circuit Court of Appeals may modify a criminal judgment which is partly erroneous; 7° or may reverse the judgment and direct the lower court to take such further proceedings as law and 69—U. 8. v. Pile, 130 U. 8. 280; 73—Ex parte Buskirk, 72 Fed. 14, 32 L. Ed. 904. Kelly v. U. 8., 27 Fed. 616. / 70—Basset v. U. S., 76 U. 8S. (9 74—Ex parte Lange, 85 U.S. (18 Wall.) 38; 19 L. Ed. 548. : Wall.) 163; 21 L. Ed. 872. 71—U. 8S. v. Malone, 9 Fed. 897. 75—U. 8. v. Lane, 221 Fed. 299. 72—U. S. v. Greenwald, 64 Fed. 6. 76—Booth v. U. 8., 197 Fed. 283. 214 FEDERAL CRIMINAL PROCEDURE [§ 368 justice require.” Even when affirming a judgment the appellate court may alter the sentence if it sees fit to do so;78 and with the consent of the United States attorney may authorize the trial court to modify the sentence.” So, if the sentence imposed is excessive the Circuit Court of Appeals may remand the case to the trial court with- out disturbing the judgment with instructions to modify the sentence by remitting the excess.®° On a concurrent sentence based upon conviction on two counts one of which is good and one defective, the court will not order a new trial but will let the lower court take proper action as to the erroneous count and will sustain the valid conviction.®! Where only a part of a sentence is illegal the case will be sent back for the court to correct the sentence by omitting the invalid portion, such as the words ‘‘at hard labor;’’ ®2 or to curtail an excessive imprisonment in order to comply with the statute.®? A person sentenced to a penitentiary improperly will be discharged on habeas corpus, but without prejudice to the power of the trial court to render a proper sentence.*4 And when a defendant duly convicted of crime obtains his discharge by habeas corpus on the ground that his sentence was illegal, the trial court has jurisdiction to impose a corrected sentence, though the term at which the original sentence was rendered has passed.*®® § 364. Incompetency through conviction—State stat- utes regarding the competency of witnesses do not govern the federal courts, such competency being determined by 77—Whitworth v. U. S., 114 Fed. 302. 78—Bates v. U .8., 10 Fed. 92. U. 8. v. Wynn, 11 Fed. 57. 79—Scott v. U. 8., 165 Fed. 172. 80—Hanley v. U. 8., 123 Fed. 849. 81—Putnam v. U. S., 162 U. 8. 687; 40 L. Ed. 1118. 82—Reynolds v. U. 8., 98 U. 8. 145; 25 L. Ed. 244. Mitchell v. U. S., 196 Fed. 874. 83—Weehsler v. U. S., 158 Fed. 579. See also Kie v. U. S., 27 Fed. 351. 84—In re Bonner, 151 U. 8. 242; 38 L. Ed. 149. 85—Bryant v. U. S., 214 Fed. 51. § 364] THE SENTENCE 215 the common law requirements of the state at the time the federal courts were created, and by such common law requirements a person convicted of crime is incom- petent only when convicted of treason, felony or crimen falsi, i. e., a crime tending to obstruct justice and involv- ing falsehood.** A conviction in one state does not affect competency of the witness in another state except through an express statute.®? : It has been held to be within the discretion of the prosecuting officers as to whether or not to use the testi- mony of a felon, though, of course, when used such testi- mony is to be viewed with suspicion.*®® It has been held that the fact that certain defendants plead guilty, does not render them incompetent to testify against codefendants.®° § 365. Error in sentence.—Any departure in the sen- tence from the statute on which it is based is an error fatal to the judgment; °*° such as imposing imprisonment alone under a statute requiring both fine and imprison- ment.*! On the other hand, it has been held that judgment will not be reversed for a sentence of imprisonment less than that permitted by law.®*? Omissions in the sentence such as failure to specify the offense for which it was imposed may be supplied by reference to other parts of the record.®* A sentence to ‘begin at the expiration of another sentence is not uncer- tain but is as certain as the circumstances of the case 86—U. S. v. Sims, 161 Fed. 1008. 91—Woodruff v. U. S., 58 Fed. 87—Logan v. U. 8., 144 U.S. 263; 766. See, however, Bartholomew v. 36 L. Ed. 429. U. S., 177 Fed. 902, and U. 8. v. 88—Crawford v. U. 8., 212 U.S. Union Supply Co., 215 U. 8. 50; 54 183; 53 L. Ed. 465. Keliher vy. U. L. Ed. 87. S., 193 Fed. 8. 92—Bartholomew v. U. S., 177 89—Ryan v. U. S., 216 Fed. 13. Fed. 902. 90—Whitworth v. U. S., 114 Fed. 93—De Molli v. U. S., 144 Fed. 302. 363. 216 FEDERAL CRIMINAL PROCEDURE [§ 365. will permit; °** nor does the possibility of ‘‘good time”’ allowance render a sentence uncertain.*® A sentence to five years in the penitentiary upon each of three indictments, said terms of imprisonment not to run concurrently, is indefinite as not showing upon which indictment the first five years is to be served.®* The imposition of an excessive sentence does not ren- der void the legal part thereof, but only leaves open to attack such portion as is unauthorized by law.” 94—-Howard v. U. 8., 75 Fed. 989. 96—U. 8. v. Patterson, 29 Fed. Blitz v. U. S., 153 U. S. 308; 388 L. = 775. Ed. 725. 97—U. 8S. v. Pridgeon, 153 U. 8S. 95—Howard v. U. S., 75 Fed. 986. 48; 38 L. Ed. 631. 8 § 366. § 366a. § 367. § 368. § 369. § 370. § 371. § 372. § 873. § 874. § 875. § 376. § 377. § 378. § 879. § 380. § 381. § 382. § 383. § 884. § 385. § 386. § 387. § 388. § 389. § 390. § 391. § 392. CHAPTER XVI WRIT OF ERROR Writs of Error from U. 8. Supreme to State Courts. Decisions Regarding Writs of Error from U. 8. Supreme to State Courts. Writs of Error from U. S. Supreme to U. 8. District Courts. Decisions Regarding Writs of Error from U. S. Supreme to U. 8. District Courts. Writs of Error on Behalf of United States. - Decisions Regarding Writs of Error on Behalf of United States. Writs of Error from U. 8. Circuit Court of Appeals to U.S. District Courts. What Criminal Judgments Reviewable. Criminal Judgments Reviewable by Writ of Error Only. Certiorari from | U. S. Supreme Court to U. S. Circuit Courts of Appeals. Decisions Regarding Certiorari. Bill of Exceptions—Allowance and Authentication of. Necessity for Bill of Exceptions. Authenticdtion of Bill of Exceptions. Setting Forth Evidence in Bill of Exceptions. Setting Forth Charge in Bill of Exceptions, Necessity for Objections and Exceptions. Objections Must Be Specific. Objections Must Be Prompt. i Necessity for Assignment of Error. Assignments of Error Must Be Specific and Based on the Record. Appeal Not a Matter of Right. Defendant Only Can Appeal. Time for Bringing Writ of Error. The Citation. Effect of Flight on Writ of Error. Requirements of Record on Appeal. Amending the Record. 217 ‘ 218 FEDERAL CRIMINAL PROCEDURE [§ 866 § 393. Record Must Show Jurisdiction. § 394. Presumption of Regularity. _ § 395. Effect of Errors Advantageous or Not Prejudicial to Defendant. § 396. Review of Discretionary Actions of Court. § 397. Joint Decision on Joint Writ of Error. § 398. Effect of Supersedeas. § 366. Writ of error from U. S. Supreme Court to State court.—Sec. 237, Judicial Code. ‘‘A final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute-of, or an authority exercised under, the United States, and the decision is against their validity; or, where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their valid- ity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority, may be reexamined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgment or decree of such state court, and may, at their discretion, award execution or remand the same to the court from which it was removed by the writ.’’ 1912 Supl. Fed. Stats. Anno. 230. § 366a. Decisions regarding writs of error to State courts from United States Supreme Court—Applications _ to the United States Supreme Court for writs of error to § 366a] WRIT OF ERROR 219 a state court are not entertained unless at the request of a member of the court concurred in by his associates.! A writ of error in such cases can only’ be issued in accordance with the statute.” The record must show some federal right, privilege or immunity claimed and denied in the state court to con- fer jurisdiction on the United States Supreme Court.? The writ should not be issued where the face of the record shows that the only result would be an affirmance of the judgment.* ' Where a state supreme court has disposed of an alleged federal question without a direct decision, upon a ground not reviewable by the United States Supreme Court, and which is not evasive but real, the decision of such federal question is not necessary to the judgment and therefore, the United States Supreme Court has no jurisdiction? The decisions of state courts on questions of state practice, the interpretation of state statutes, etc., are conclusive on the United States courts; *® as is also the decision of a state supreme court that a statute is not in conflict with the state constitution.’ 1—In re Robertson, 156 U. 8. 183; 39 L. Ed. 389. 2—Dunean v. Mo., 152 U. 8. 377; 38 L. Hd.. 485. 8—McNulty v. Calif., 149 U. S. 645; 37 L. Ed. 882. Bohannon v. Nebraska, 118 U. S. 231; 30 L. Ed. 71. MeGuire v. Mass., 70 U. S. (3 Wall.) 382; 18 L. Ed. 164. Home for Incurables v. State of New York, 187 U. 87155; 47 L. Ed. 117. Mil- ler v. Texas, 153 U. S. 535;°38 L. Ed. 812. Bolln v. Nebraska, 176 U. 8. 83; 44 L. Ed. 382. Leeper v. Texas, 139 U. 9. 462; 35 L. Ed. 225, Davis v. Texas, 139 U. 8S. 651; 35 L. Ed. 300. Baldwin v. Kansas, 129 U. S. 52; 82 L. Ed. 640. Clark v. \Pa., 128 U. 8S. 395; 32 L. Ed. 487. Moore v. Miss., 88 U. S. (21 Wall.) 636; 22 L. Ed. 653. 4—In re Kemmler, 136 U. 8. 436; 34 L. Ed. 519. Ex parte Spies, 123 U. 8. 131; 31 L. Ed. 80. Gibson v. Miss., 162 U. S. 565; 40 L. Ed. 1075. 5—Brooks v. Mo., 124 U. 8. 394; 31 L. Ed. 454. 6—West v. La, 194 U. 8. 259; 48 L. Ed. 965. Dreyer v. Tl., 187 U. S. 71; 47 L. Ed. 79. Nobles v. Ga., 168 U. 8. 398; 42 L. Ed. 515. Mallett v. N. Carolina, 181 U. S. 589; 45 L. Ed. 1015. Miller v. Tex- as, 153 U. S. 535; 38 L. Ed. 812. 7—Brown v. N. J., 175 U. 8. 172; 44 L, Ed. 119. 220 FEDERAL CRIMINAL PROCEDURE [§ 366 The action of a state court in denying an alleged fed- eral right can be reviewed by the Supreme Court, if the decision has been made by the highest court of the state in which such decision could be had, even though it be not the highest court of the state generally.’ The, case will not reviewed by the Supreme Court if both federal and non-federal grounds were involved, and the decision of the latter was sufficient and necessary to sustain the state decision.® § 367. Writs of error from U. S. Supreme to U. S. Dis- trict Court.—Sec. 238, Judicial Code. ‘‘Appeals and writs of error may be taken from the district courts, in- cluding the United States District Court for Hawaii, direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue, in which case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision; from the final sentences and decrees in prize causes; in any case that involves the construc- tion or application of the Constitution of the United States; in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority is drawn in ques- tion; and in any case in which the constitution or law of a state is claimed to be in contravention of the Con- stitution of the United States.’’ 1912 Supl. Fed. Stats. Anno. 231, § 368. Decisions regarding writs of error to District Court from Supreme Court.—There is no general right of appeal to the Supreme Court in criminal cases in the United States courts, such right existing only where con- ferred by statute.’° 8—Ky. v. Powers, 201 U. 8. 1; 33 L. Ed. 88. Snow v. U. S., 118 50 L. Ed. 633. U. 8. 346; 30 L. Ed. 207. Cannon 9—Adams v. Russell, 229 U. S. v. U.S, 118 U. 8. 355; 29 L. Ed. 353; 57 L. Ed. 1224. 561. 10—U. 8. v. Perrin, 131 U. 8. 55; § 369] WRIT OF ERROR 221 A direct appeal from the district court to the Supreme Court under the statute can only be had when the record shows that some question mentioned in the statute was raised at the trial. On an appeal to the Supreme Court involving the con-' stitutionality of a federal law that court acquires juris- diction of the entire case and all questions involved in it, and not merely questions of constitutionality alone.1? | A constitutional question is sufficiently raised in habeas corpus proceedings to authorize an appeal to the United States Supreme Court where such question is precenie’ in the petition and argued in the return.?* It seems that where defendant has the choice of review between the Supreme Court and the Circuit Court of Appeals, the taking of a writ of error to the former pre- cludes recourse to the latter; +* and likewise after a new trial upon reversal by Circuit Court of Appeals, the second writ’ of error will be denied by the Supreme Court.25 \ If the questions in the case are both constitutional and non-constitutional, the Circuit Court of Appeals may take jurisdiction.1* § 369. Writs of error on behalf of United States—Act of March 2, 1907.—‘‘That a writ of error may be taken by and on behalf of the United States from the district or circuit courts direct to the Supreme Court of the United States in all criminal cases, in the following in- stances, to wit: From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indict- ment, or any count thereof, where such decision or judg- ment is based upon the invalidity, or construction of the 11—Ansbro v. U. S., 159 U. S. 14—Van Gesner v. U. S., 153 Fed. 695; 40 L. Ed. 310. 46. 12—Horner v. U. S., 143 U. S. 15—Shapiro v. U. S., 235 U. 8. 570; 36 L. Ed. 266. 412; 59 L. Ed. 291. 13—Carter v. McClaughry, 183 U. 16—Morgan v. Ward, 224 Fed. S. 365; 46 L, Ed. 236. 698. Reed v. U. S., 224 Fed. 378. 222 FEDERAL CRIMINAL PROCEDURE [§ 369 statute upon which the indictment is founded. From a decision arresting a judgment of conviction for insuf- ficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded. From the decision or judgment sustaining a special plea in bar, when defend- ant has not been put in jeopardy. The writ of error in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted and shall have precedence over all other cases. Pending the prosecution and determination of the writ of error in the foregoing instances, the defend- ant shall be admitted to bail on\his own recognizance: Provided, that no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant.’’ 1909 Supl. Fed. Stats. Anno. 292. § 370. Decisions regarding writs of error on behalf of the United States in criminal cases.—The United States can have a writ of error when an indictment is quashed, or set aside, ora demurrer sustained, when such action is predicated on the construction or constitutionality of the statute.7 Outside the right granted by the above mentioned statute, the United States has no appeal in criminal cases.1® But where an action is civil even though for a penalty, of course, the government can appeal.’® Where it does not appear that the judgment sustaining the demurrer turned upon any controverted construction of the statute, the Supreme Court is without jurisdiction under the Criminal Appeals Act.?? But where an indict- © 17—U. 8. v. Stevenson, 215 U. 8. 19—U. 8. v. I. C. BR. BR. Co., 170 190; 54 L. Ed. 153. Fed. 542. 18—Kepner v. U. 8., 195 U. S.> 20—U. 8. v. Carter, 231 U. 8. 492; 100; 49 L. Ed. 114. U.S.v. Sanges, 58 L. Ed. 330. U.S. v. Moist, 231 144 U. 8. 310; 36 L. Ed. 445. U.S. U.S. 701; 58 L. Ed. 444. v. Dickinson, 213 U. 8. 92; 53 L. Ed. 711, § 370] WRIT OF ERROB 228 ment is quashed on a finding that facts alleged are not within the statute, the United States has an appeal.” But where it does not appear on what ground an indict- ment has been dismissed, the writ of error will not be entertained.?? But a decision of a trial court in sustain- ing a demurrer or motion similar in effect on the ground that the statute does not include the defendant named, is based upon a construction of the statute giving the Supreme Court jurisdiction.?# On such writ of error the Supreme Court will consider the decision below only so far as it is based on the in- validity or construction of the statute.24 The Supreme Court cannot review the trial court’s interpretation of the indictment but is confined to ascertaining whether that court erroneously construed the statute on which the indictment was brought.2® And under this act the Supreme Court will adopt as correct the meaning given the indictment by the lower court.?® The essential nature of a plea in bar, such as a plea of the statute of limitations, is not changed by designat- ing it a plea in abatement, and such designation does not defeat an appeal by the United States under this act.?7 Where only one question is brought up to the Supreme Court, it may reverse without prejudice as to other points.?° The Supreme Court has questioned the propriety of 21—U. 8. v. Keitel, 211 U. S. 370; 53 L. Ed. 230. U. 8. v. Birdsall, 233 v. Keitel, 211 U. 8. 370; 53 L. Ea. 230. U.S. 223; 58 L. Ed. 930. U.S. v. Patten, 226 U. 8. 525; 57 L. Ed. 333. 22—U. 8S. v. Carter, 231 U.‘S. 492; 58 L. Ed. 330. U. 8. v. Moist, 231 U.S. 701; 58 L. Ed. 444, 23—U. S. v. Adams Express Co., 229 U. 8. 381; 57 L. Ed. 1237. , ' 24, 8. v. Stevenson, 215 U. S. 190; 54 L, Ed. 153. U.S, v. Mason, 213 U. §. 115; 53 L, Ed. 725. U.S. 25—U. S. v. Carter, 231 U. 8. 492; 58 L. Ed. 330. 26—U. 8S. v. Davis, 231 U. 8. 183; 58 L. Ed. 177. 27—U. S. v. Barber, 219 U.S. 72; 55 L. Ed. 99. See also U. S. v. Adams Ex. Co., 229 U. S. 381; 57 L, Ed. 1237. 28—U. 8. v. Portale, 235 U. 8. 27; 59 L. Ed. 111. 224 FEDERAL CRIMINAL PROCEDURE [§ 370 contending in the trial court that the indictment is based upon one statute and in the Supreme Court upon a dif- ferent law; ?° nevertheless the error of the trial court in dismissing an indictment, is not cured by the fact that the statute supporting the indictment was not called to his attention.®° § 371. Writs of error from U. 8. Circuit Courts of Ap- peals to U. 8. District Courts.—Sec. 128, Judicial Code. “The Circuit Courts of Appeals shall exercise appellate jurisdiction to review by appeal or writ of error final decisions in the district courts, including the United States District Court for Hawaii, in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court, as provided i in section two hundred and thirty-eight, unless otherwise provided by law; and except as provided in sections two hundred and thirty-nine and two hundred and forty, the judgments and decrees of the Circuit Courts of Appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or contro- versy being aliens and citizens of the United States, or citizens of different states; also in all cases arising under the patent laws, under the copyright laws, under the rev- enue laws, and under the criminal laws, and in admiralty cases.’? 1912 Supl. Fed Stats. Anno. 195. § 372. What criminal judgments reviewable——Only final judgments in criminal cases are reviewable by the Court of Appeals.*t It has been held that where a jury is waived in a crim- inal case the court’s decision is reviewable if based entirely upon questions of law but not if it includes the determination of questions of fact. i 29—U. 8. v. George, 228 U. S. 31—Whitworth v. U. S., 114 Fed. 14; 57 L. Ed. 712. 302. 30—U. 8. v. Nixon, 235 U. 8S. 32—Frank v. U. S., 192 Fed. 864. 231; 59 L. Bd. 207. \ § 375] WRIT OF ERROR ~ 295 § 373. Criminal judgments reviewable by writ of error only.—Final judgments of United States courts in crim- inal cases are reviewable in the United States Supreme Court by writ of error and not by appeal.?# The Circuit Court of Appeals will dismiss a case brought to it by appeal that should have come by writ of error.*4 This means that all criminal cases should be reviewed by writ of error only.**> However, an appeal has been treated as a writ of error by means of season- able stipulation and general consent of the parties interested.?° § 374, Certiorari from Supreme Court to Circuit Court of Appeals.—Sec. 240, Judicial Code. ‘‘In any case, civil or criminal, in which the judgment or decree of the Cir- cuit Court of Appeals is made final by the provisions of this title, it shall be competent for the Supreme Court to require, by certiorari or otherwise, upon the petition of any party thereto, any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.’’ 1912 Supl. Fed. Stats. Anno. 232. § 375. Decisions regarding certiorari—aA writ of cer- tiorari is not a writ of right but is discretionary with ‘the court.?? A writ of certiorari or of prohibition will not be awarded in cases where the Supreme Court has no appel- late jurisdiction.*® Certiorari should not be used by the Circuit Court of Appeals in lieu of writ of error except in extraordinary cases.®? 33—Bucklin v. U. 8., 159 U. 8. 387—Ex parte Hitz, 111 U. 8. 682; 40 L. Ed. 305. 766; 28 L. Ed. 592. 34—Price v. U. 8., 169 Fed. 791. 38—Ex parte Gordon, 66 U. 8. 35—Sena v. U. S., 147 Fed. 485. 503; 17 L. Ed. 134. De Lemos v. U. S., 107 Fed. 121. 39—Whitney v. Dick, 202 U. S. 36—U. 8. v. Reaves, 126 Fed. 127. 132; 50 L. Ed. 963. 226 FEDERAL CRIMINAL PROCEDURE [§ 376 § 376. Bill of exceptions—Allowance and authentica- tion of —Sec. 953, Revised Statutes. ‘‘That a bill of excep- tions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof if more than one judge sat at the trial of the cause, without any seal of the court or judge annexed thereto. And in case the judge before whom the cause has heretofore been or may hereafter be tried is, by reason of death, sickness, or other disability, unable to hear and pass upon the motion for a new trial and allow and sign said bill of exceptions, then the judge who suc- ceeds such trial judge, or any other judge of the court in which the cause was tried, holding such court there- after, if the evidence in such case has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion and allow a true bill of exception, shall pass upon said motion and allow and sign such bill of exceptions; and his ruling upon such motion and allowance and signing of such bill of exceptions shall be as valid as if such rul- ing and allowance and signing of such bill of exceptions had been made by the judge before whom such cause was tried; but in case said judge is satisfied that owing to the fact that he did not preside at the trial, or for any other cause, that he can not fairly pass upon said motion, and allow and sign said bill of exceptions, then he may in his discretion grant a new trial to the party moving therefor.’’ 4 Fed. Stats. Anno. 594. § 377. Necessity for bill of exceptions.——Upon writ of error no error in law can be reviewed which does not appear upon the record, or has not by bill of exceptions been made part of the record.*° 40—Claassen v. U. S., 142 U. 8. 140; 35 L. Ed. 966. Miller v. U. 8, 103 U. 8. 304; 26 L. Ed. 481. § 378] | WRIT OF ERROR 227 A writ of error brings up errors of law only, so that the sufficiency of the evidence will not be considered if it be conceded that there was any evidence at all to sup- port the judgment.*! It has been held that where the only question for review is as to the sufficiency of the indictment, a bill of exceptions can be dispensed with and the case can go to the appellate court in the form of a remission of the indictment with the concurrence of the court and the district attorney. a When a case is tried by the court without a jury ex- ceptions cannot be taken to the finding of the judge on questions of law or fact.48 It has been held that defendant should not be allowed any further bill of exceptions than that which he has used before the trial court in moving for arrest of judg- ment and new trial.*4 § 378. Authentication of bill of exceptions.—The bill of exceptions must be signed by the trial judge to be effect- ive under Rev. Stats. 953.46 And where a purported bill of exceptions is not authenticated by the signature of the trial judge the proceedings at trial are not open to re- view.*® The clerk’s signature to the bill of exceptions does not answer for that of the trial judge.” On the death of the trial judge before the motion for a new trial has been passed upon, his successor has power under Rev. Stats. 953, to pass upon and overrule such motion where the testimony has been preserved, and can also render judgment on the verdict.*® 41—Ling Su Fan v. U. S., 218 U. 45—Origet v. U. S., 125 U. S. S. 302; 54 L. Ed. 1049. Humes v. 240; 31 L. Ed. 743. Whitaker v. U. U. 8, 170 U.S. 210; 42 L, Hd.1011. 8, 220 Fed, 114, Dimmick v. U. 8., 135 Fed. 257. 46~—Warien ¥, U. 8., 183 Fed. 718. Milby v. U. S., 120 Fed. 1. Hume Morgan v. U. 8., 148 Fed. 189. v. U.S., 118 Fed. 689. 47—Morgan v. U. 8, 148 Fed. 42—U. 8S. v. Haynes, 29 Fed. 691. 189. ; 43—Jackson v. U. 8., 21 Fed. 35. 48—Meldrum v. U. 8, 151 Fed. 44—U. S. v. Claassen, 46 Fed. 67. 177. Byrno’s Orim. Prov.—17 228 FEDERAL CRIMINAL PROCEDURE. [§ 878 Where a party does not move to have his bill of excep- tions signed until after the time fixed by statute and the rules of court thereunder, the district judge is without power to sign it.*® § 379. Setting forth evidence in bill of exceptions.— The certificate to the bill of exceptions should show that all the evidence is set forth, when it is claimed that the evidence does not sustain the verdict.©° And a claim that the verdict is against the evidence cannot be sustained where all the evidence, or all upon some essential issue is not presented.®! But if the record shows that it con- tains all the evidence the upper court will disregard informality of the certificate.®? Assignments of error based on the admission of evi- dence or exhibits should set forth the evidence or ex- hibits referred to.53 And on a similar principle an ex- ception to the court’s permission to a juror to take notes of the evidence is not reviewable where the record does not show any notes were actually taken.®¢ Exceptions to questions or to the exclusion of answers must show in the record the questions or answers re- ferred to.5> Likewise, the action of the trial court in. admitting testimony over objection will not be reviewed where the record does not show the purpose of the tes- timony nor the ground of the objection. But where the defendant offers certain evidence, all of which is excluded by the court, the bill of exceptions need not set forth 49—Glickstein v. U. S8., 215 Fed. 53—McGregor v. U. S., 184 Fed. 90. 187. Balliett v. U. 8., 129 Fed. 689. 50—Williamson v. U. 8, 207 U. 8. 425; 52 L. Ed. 278. 51—Clune v. U. S., 159 U. 8. 590; 40 L. Ed. 269. Allis v. U. S., 155 U. S., 117; 39 L. Ed. 91. Krause v. U. 8., 147 Fed. 442. 52—Clyatt v. U. 8., 197 U. 8, 207; 49 L. Ed. 726. 54— Agnew v. U. S., 165 U. S. 36; 41 L. Ed. 624. 55—Turner v. U. 8., 66 Fed. 280. Murray v. Louisiana, 163 U. 8. 101; 41 L. Ed. 87. Stokes v, U. S., 157 U. 8. 187; 39 L. Ed. 667. 56—O’Leary v. U. 8., 158 Fed. 797. § 380] WRIT OF ERROR 229 the names of witnesses and what they would have testified to.5” : Where the correctness of instructions depends on the evidence, the bill of exceptions must show such evidence or the instructions will not be reviewed.°® And even though the only objection be to the charge, the bill of exceptions should set forth enough evidence to show the application and relevancy of the charge.5® So also refusal of a motion to cause election of one of several conspiracies disclosed by the evidence, is not reviewable unless the bill of exceptions contains the evidence.® § 380. Setting forth charge in bill of exceptions —In- structions do not become part of the record unless incor- porated in the bill of exceptions.*! Exceptions to the court’s charge without setting forth the charge in the bill of exceptions are useless in the appellate court.® The refusal of requested instructions cannot be con- sidered by the appellate court when the record does not set forth the charge, the presumption being that the charge accurately stated the law covered by the request.®% Likewise, where the appellate record does not contain all the charge it will be presumed that the court properly charged upon every branch of the case and that further instructions were given to modify correctly any erro- neous instructions shown by the record, if it is clear that they could have been corrected.* 57—Carter v. Texas, 177 U. 8. 401. Ed. 269. Morgan v. U. 8., 148 442; 44 L. Ed. 839. Fed. 189. Blake v. U. S., 71 Fed. 58—Hotema v. U. 8., 186 U. S. 286. 418; 46 L. Ed. 1225. Clarke v. Pa., 62—Garst v. U. &., 180 Fed. 339. 128 U. 8. 395; 32 L. Ed. 487. Thompson v. U. S., 202 Fed. 401. 59—Vives v. U. S., 92 Fed. 355. ~ 683—Meyer v. U. S., 220 Fed. 60—Barrett v. U. 8. 169 U. S. 822. Saito v. U. S., 141 Fed. 653. 218; 42 L. Ed. 723. Whitaker v. U. 8., 220 Fed. 114. 61—Clune v. U. 8., 159 U. 8. 590; 64—Carroll v. U. S., 154 Fed. 425. 230 FEDERAL CRIMINAL PROCEDURE [s 381 § 381. Necessity for objections and exceptions.—Objec- tions and exceptions must be taken in the trial court to present questions for review in the upper court. And, ordinarily an objection without an exception is insufficient to save the point for review.®* Likewise, a privilege claimed by defendant in the appellate court must have been claimed at the trial to entitle him to raise the point on review.*? A charge which has not been excepted to will not be reviewed.®8 ; However, a plain error not objected nor excepted to may be noticed in the discretion of the appellate court.® State statutes making the taking of exceptions unnec- essary are not controlling on the United States courts in such states.”° Objection to the validity of an indictment cannot ordi- narily be made for the first time upon a writ of error.”! The appellate court record must show that the matters complained of were erroneous, and counsel cannot com- plain of the court’s reference in the charge to evidence to which no objection was made at the time of its intro- duction.7? 65—Bucklin v. U. S., 159 U. S. 682; 40 L. Ed. 305. Tucker v. U. S., 151 U. 8. 164; 38 L. Ed. 112. Alexander v. U. S., 188 U. 8. 353; 34 L. Ed. 954. Crumpton v. U. S., 138 U.S. 861; 34 L. Ed. 958. Bald- win v. Kansas, 129 U. S. 52; 32 L. Ed. 640. Carlisle v. U. 8., 194 Fed. 827. Shaw v. U. S., 180 Fed. 348. Jones v. U. S., 179 Fed. 584, Wil- liams v. U. S., 158 Fed. 30. Miller v. Oklahoma, 149 Fed. 330. Grey v. U. S., 172 Fed. 101. Ball v. U. 8., 147 Fed. 32. Vernon v. U. S., 146 Fed. 121. Bise v. U. S., 144 Fed. 374. Booth v. U. S., 139 Fed. 252. Donaldson v. U. S., 208 Fed. 4. Ryan v. U. S., 216 Fed. 13. 66—Holmgren v. U. S., 217 U. 8. 509; 54 L. Ed. 861. Bannon v. U. 8., 156 U. S. 464; 39 L. Ed. 494. St. Clair v. U. S. 154 U. 8. 184; 38 L. Ed. 936. 67—In re Chapman, 166 U. 8S. 661; 41 L, Ed. 1154. 68—Shepard v. U. S., 160 Fed. 584. Winters v. U. S., 201 Fed. 845. 69—Sykes v. U. S., 204 Fed. 909. Pettine v. New Mexico, 201 Fed. 489. 70—St. Clair v. U. S., 154 U. 8. 134; 38 L. Ed. 396. 71—Pickett v. U. S., 216 U. 8. 456; 54 L. Bd 566. Serra v. Mor- tiga, 204 U. S. 470; 51 L. Ed. 571. | 72-—Ware v. U. 8., 154 Fed. 577. § 382] WRIT OF ERROR 231 When a motion in arrest is overruled the defendant should save an exception to have the point reviewed in the appellate court.7* Where evidence is received against only one of several defendants the court’s failure to so limit it in his charge is not error in the absence of a request therefor.’* It has been intimated that where evidence is received on the permission of the district attorney to connect it with defendant, which promise is not kept, the defense should have it stricken out rather than rely alone on the previous objection and exception.7> On the other hand, failure to except to erroneous proceedings is not mate- rial where defendant afterward strives, but is not per- mitted, to cure the errors in such proceedings.”® A question of variance cannot be raised for the first time in the appellate court."” When no motion has been made for a directed verdict at trial the appellate court ordinarily will not review alleged error in not directing a verdict."® § 382. Objections must be specific_—Although in crim- inal cases courts are not so exacting as to the accurate statement of objections as they are in civil cases,”® never- theless, objections should state clearly and. specifically the ground on which they are based and general objec- tions are usually insufficient.6° And it has been said that a general objection i is sufficient only when the ground on which it is made is obvious.*! And a general exception to the court’s charge not 73—Rodriguez v. U. S., 198 U.S. 183; 53 L. Ed. 465. Thompson v. 156; 49 L. Ed. 994. Compare An-_ U. S., 202 Fed. 401. drews v. U. S., 224 Fed, 418. 80—Carver v. U. S., 160 U. 8S. 74—Foster v. U. S., 178 Fed. 165. 553; 40 L. Ed. 532. Allis v. U. S., 75—Grey v. U. S., 172 Fed. 101. 155 U. 8. 117; 39 L. Ed. 91. Steers - 76—Allen v. U. 8.,115 Fed. 3. | v.U.S., 192 Fed. 1. Prettyman v. 77—Jewett v. U. S., 100 Fed. 832. U.S8., 180 Fed. 30, Sparks v. Okla~ 78—MceDonnell v. U. S., 133: Fed. homa, 146 Fed. 371. Considine v. 293. U. S., 112 Fed. 342. 79—Crawford v. U. S., 212 U. 8. 81—Johnson v. U. S., 163 Fed. 30. 232 FEDERAL CRIMINAL PROCEDURE [§ 382 directing attention to any specific portion thereof, raises no question for review.*? And a general exception to the refusal of a series of requested instructions in untenable if any one of the series is erroneous.8* Likewise, a gen- eral exception to a portion of the charge containing two propositions of law is insufficient if either one of such propositions is correct.2 And a general exception to a portion of the charge without pointing out specifically the part objected to is insufficient.2> But an exception to one specific portion of the court’s charge which deals with but one subject, is sufficient.26 An exception to the court’s charge should be so definite as to indicate to the court just what is objected to so that if necessary he can correct it.87 On the same principle an objection to testimony as a whole, part of which is admissible is not specific enough to authorize review.®® § 383. Objections must be made promptly.—Objections and exceptions must be made promptly at the time the rulings complained of are made.®® Thus, an objection to the testimony of the wife of defendant which is not made until other witnesses have testified after the wife, is too late and a motion to strike out the testimony for incompetency is properly overruled.®° Exceptions to the charge should ordinarily be made before the jury retire.*' But where counsel relying on 82—Holder v. U. 8., 150 U. S. 91; 37 L. Ed. 1010. Lewis v. U. S., 146 U. S. 370; 36 L. Ed. 1011. Tucker v. U. S., 224 Fed. 833. 83—Thiede v. Utah, 159 U. 8. 510; 40 L. Ed. 237. 84—Armour Packing Co. v. U. 8., 153 Fed. 1. 85—Ball v. U. S., 147 Fed. 382. Kaufman v. U. S., 113 Fed. 919. Shelp v. U. S., 81 Fed. 694, 86—Humes v. U. 8., 182 Fed. 485. 87—Richards v. U. 8., 175 Fed. 911. . 88—Alkon v. U. S., 163 Fed. 810. Rinker v. U. 8., 151 Fed. 755. Wil- liams v. U. 8., 158 Fed. 30. Donald- son v. U. S., 208 Fed. 4. 89—Burchett v. U. 8., 194 Fed. 84. 90—Benson v. U. S., 146 U, S. 325; 36 L. Ed. 991. 91—Thompson v. U. S., 202 Fed. 401. § 385] WRIT OF ERROR 233 the court’s permission to follow such course as counsel deemed proper filed exceptions on the day following the giving of the charge, it was held that the objections and exceptions were seasonably made? Ordinarily, an exception to the charge which is not taken until after verdict will not be reviewed.?* § 384. Necessity for assignment of error.—The assign- ment of errors is not a jurisdictional requirement; * but is ordinarily necessary in order to obtain review of alleged errors.®® However, errors which are plain and of importance may be reviewed in the discretion of the appellate court even though no assignments of error have been based thereon.®* § 385. Assignments of error must be specific and based on the record.—Assignments of error founded on matters or issues not set forth in the record cannot be consid- ered,” in other words, if error is alleged its commission must affirmatively be shown by the record.®® However, if the record itself shows the ground on which reversal is sought, it has been held that there is no necessity for a bill of exceptions.*® Assignments of error should be founded on specific 92—Owens v. U. S., 130 Fed. 279. U. 8, 102 Fed. 473. Sykes v. 93—Thiede v. Utah, 159 U. 8S. 510; 40 L. Ed. 237. 94—Old Nick Williams Co. v. U. S., 215 U. 8. 541; 54 L. Ed. 318. 95—Steers v..U. 8., 192 Fed. 1. Old Nick Williams Co. v. U. 8., 215 U. 8. 541; 54 L. Ed. 318. Hardesty v. U. S., 168 Fed. 25. 96—Old Nick Williams Co. v. U. 8., 215 U. 8. 541; 54 L. Ed. 318. Humes v. U. 8, 182 Fed. 485. Williams v. U. S., 158 Fed. 30. Vives v. U. 8., 92 Fed. 355. Shelp v. U. &, 81 Fed. 694. Tubbs v. U. S&S, 105 Fed. 59. Jackson v. U. 8., 204 Fed. 909. Weems v. U. S., 217 U. S. 349; 54 L, Ed. 793. Holmgren v. U. 8., 217 U. 8. 509; 54 L. Ed. 861. Clyatt v. U. S., 197 U. 8. 207; 49 L, Ed. 726. Wiborg v. U. S., 163 U. S. 632; 41 L, Ed. 289. Mark Yick Hee v. U. 8., 223 Fed. 732. 97—Hoeffner v. U. S., 87 Fed. 1005. Glickstein v. U. 8., 193 Fed. 51. MeCarty v. U. S., 101 Fed. 113. 98—Jackson v. U. 8., 102 Fed. 473. 99—Shelp v. U. S., 81 Fed. 694. 234 ¥ FEDERAL CRIMINAL PROCEDURE [§ 385 objections and exceptions, and assignments of error ordinarily will be disregarded as to points not raised at the trial.1° Assignments of error must either quote or indicate, with reasonable certainty, the portion of the record on which they are based,’°? and a general assignment of error is insufficient to receive consideration in the appel- late court; 1°° for example, that the court erred in swear- ing and impaneling the jury, and erred in admitting testimony and in the instructions, without setting forth such alleged error, such testimony or such instructions,! or that the court made prejudicial remarks without set- ting forth such remarks. Likewise, assignments of error relating to the admission of evidence stated to be found on certain pages of the record where such evidence is not found, are insufficient to require the appellate court to review the alleged errors.1°* However, assign- ments of error as to the charge are sufficient if they clearly indicate the parts of the charge complained of.1°7 § 386. Appeal—Not matter of right Appeal is not a matter of right and the state or government can grant it on such terms as it sees fit.1 § 387. Defendant only can appeal.—Only the actual defendant can sue out a writ of error, and one sued out by any other person will be dismissed.? Likewise an 100—Enders v. U. S., 187 Fed. 754, Dillard v. U. S., 141 Fed. 303. 105—Miller v. Oklahoma, 149 Fed. 330. Short v. U. S., 221 Fed. 248. 101—Arkansas v. Schlierholz, 179 U. 8. 598; 45 L. Ed. 335. 102—Harless v. U. S., 92 Fed. 353. Gallot v. U. S., 87 Fed. 446. 108—Tam Shi Yan v. U. S., 224 Fed. 422. Kaller v. U. 8., 196 Fed. 888. Hodge v. U. S., 191 Fed. 165. Betts v. U. 8., 132 Fed. 228. \ 104—Burchett v. U. 8., 194 Fed. 84. 106—Hodge v. U. S., 191 Fed. 165. 107—Hickory v. U. S., 160 U. 8. 408; 40 L. Ed. 474. 1—McKane vy. Durston, 153 U. 8S. 684; 38 L. Ed. 867. 2—Grant v. U. S., 227 U. 8. 74; 57 L. Ed. 423. § 390] WRIT OF ERROR 235 application for a writ of error made without the authority of the defendant but at the request of his friends, cannot be granted.’ § 388. Time for bringing writ of error—A writ of error in a case taken to the Circuit Court of Appeals must be sued out within six months of the judgment com- plained of; the judgment is the final determination of the issues and corrections of formal defects do not change the date of entry of judgment.* The statutory time for suing out a writ of error cannot be extended nor can it be affected by a nunc pro tunc order.®; + A writ of error is not brought and does not remove the record from the lower court until filed in that court.® -§ 389. The citation.—The citation of a writ of error should give the proper names of all persons applying for the writ.’ However, informality i in naming the parties does not defeat the right of review.® The Circuit Court of Appeals has power to extend the time for return of the citation upon motion made during the term to which the writ is returnable, where the failure to secure an extension before the return day is plainly an oversight and where the time for taking out the writ of error has not yet passed.® § 390. Effect of flight on writ of error—A writ of error will not be heard when the party suing it out has escaped from the jurisdiction of the court and is not in custody 8—Ex parte Dorr, 44 U. 8. (3 Co., 202 Fed. 700. Old Nick Wil- How.) 103; 11 L. Ed. 514. liams Co. v. U. S., 152 Fed., 925. 4—Allis-Chalmers Co. v. U. 8., 162 7—Kerrch v. U. S., 171 Fed. 366. Fed. 679. 8—Hackfeld & Co. v. U. S., 141 5—Old Nick Williams Co. v. U. Fed. 9. 8., 152 Fed. 925. 9—Mark Yick Hee v. U. S., 223 6—U. 8S. v. Alamogordo Lumber Fed. 732. \ : 236 FEDERAL CRIMINAL PROCEDURE [§ 390 either actually or constructively.!° Thus, where the ac- cused escapes while a writ of error is pending the case will be stricken from the docket unless he is brought within the jurisdiction of the court below during the term.'! The dismissal by a state court of a writ of error when the accused is a fugitive, is not a denial of due process of law.?? § 391. Requirements of record on appeal.—The petition for writ of error forms part of the record in error.1? But does not form any part of the record of the court below." All parts of the record are to be interpreted together and a deficiency in one part may be supplied by a refer- ence to another.® The record imports verity and cannot be impeached or affected by affidavits.'® A record showing indictment, arraignment, plea, trial, conviction and defendant’s presence in court and sen- tencing shows sufficient judgment for all purposes.17, The caption of an indictment though not technically part of the indictment is a part of the appellate record and shows the court to which the jury was summoned, in which it was charged, when the indictment was re- turned, and whether the grand jury was sworn.'* The record sufficiently shows that the grand jury was sworn by a recital in the indictment to that effect.1® Likewise a recital in the bill of exceptions implying that the petit 10—Smith v. U. §., 94 U. S. 97; 24 L. Ed. 32. ' 11—Bohanan v. Nebraska, 125 U. 8. 692; 31 L. Ed. 854, 12—Allen v. Georgia, 166 U. 8S. 138; 41 L. Ed. 949. 13—Leeper v. Texas, 139 U. 8. 462; 35 L. Ed. 225. 14—Clark v. Pa., 128 U. S. 395; 32 L. Ed. 487. 15—Pointer v. U. 8., 151 U. 8S. 396; 38 L. Ed. 208. 16—Hopt v. Utah, 114 U. 8S. 488; 29 L. Ed. 183. Johnson v. U. S., 225 U.S. 405; 56 L. Ed. 1142. 17—White v. U. 8., 164 U. 8. 100; 41 L. Ed. 3665. 18—Burchett v. U. S., 194 Fed. 821. 19—Powers v. U. S., 223 U. 8. 303; 56 L. Ed. 448. § 393] WRIT OF ERROR 237 jury were sworn, is sufficient in the absence of contrary proof.?° § 392. Amending the record.—The clerk of the court cannot be heard to testify that his record is false.21 And the record cannot be impeached in the reviewing court, and if any corrections are made they must be made in the trial court.?? The record may be amended at a subsequent term pend- ing appeal, so as to show arraignment and pleas of de- fendant.”? But it has been held that an amendment of the record of a court in derogation of its final judgment can- not be allowed at a subsequent term.?* It has been held that when the defendant relies on an incomplete bill of exceptions on motion for a new trial and in arrest of judgment he thereby waives his right to a further bill of exceptions after issuance of the writ of error.” The record may be amended after the term by a ref- erence to an official part thereof such as the bill of ex- ceptions.?° § 393. Record must show jurisdiction.—The jurisdic- tion of United States courts being limited by the Con- stitution and acts of Congress an action is deemed to be without jurisdiction unless the record shows the con- trary.27 Likewise, it has been held that jurisdiction is never presumed in criminal proceedings but must always be proved, and that the concurrence of jurisdiction of person, of place and of the subject-matter is never waived by the defendant.*® 20—Powers v. U. S., 223 U. 8. 24—Fielden v. Illinois, 143 U. 8. 303; 56 L. Ed. 448. 452; 36 L, Ed. 224, 21—U. 8. v. Walsh, 22 Fed. 644. 25—U. 8. v. Claassen, 46 Fed. 67. 22—Ex parte Spies, 123 U. 8. 26—Brown v. U. S., 196 Fed. 351, 131; 31 L. Ed. 80. 27—In re Cuddy, 131 U. 9. 280; 23—Gonzales v. Cunningham, 164 33 L. Ed. 154. Z U. S. 612; 41 L. Ed. 572, 28—U. S. v. Rogers, 23 Fed. 658. 238 FEDERAL CRIMINAL PROCEDURE [§ 393 Where the trial court (a commissioner’s court) is without jurisdiction, the district court acting as an appel- late court is likewise so even though it would have had original jurisdiction if the case had gone there in the first instance.?® The jurisdiction of the trial court is not affected by defects in the proceeding in which the crime was com- mitted if such defects were not attacked in such pro- ceeding.®° Civil courts usually have concurrent jurisdiction of offenses triable by court-martial.** § 394. Presumption of regularity.——Where the record contains nothing to the contrary the appellate court will assume that the action of the trial court was regular and sustained by the facts before it.*? § 395. Effect of errors advantageous or not prejudicial to defendant.—Hrrors advantageous or not prejudicial to defendant are ordinarily not reviewable.*® Error invited by defendant cannot be assigned in the appellate court, such as granting defendant’s motion for consolidation of indictments,** or such as using the word ‘‘accomplice’’ in the court’s charge at the defend- ant’s suggestion.*® It has been held that if the record shows that no other verdict than that of guilty could have been reached, com- plaint of the erroneous reception of evidence and im- proper remarks by the prosecuting attorney will not be’ considered prejudicial.®* 29—Rider v. U. S., 149 Fed. 164. 9S. v. Shapeleigh, 54 Fed. 126. 30—Edelstein v. U. S., 149 Fed. 631. 31—Franklin v. U. S., 216 U. 8. 559; 54 L. Ed. 615. 32—Ex parte Stiner, 202 Fed. 419. Breese v. U. 8., 203 Fed. 824, 33—Garst v. U. S., 180 Fed. 339. Dimmick v. U. S., 185 Fed. 257. U. Brown v. U. 8., 142 Fed. 1. 34—Kettenbach v. U. S., 202 Fed. 377. 35—Thompson y. U. 8., 202 Fed. 401. 36—Johnson v. U. S., 215 Fed. 679. § 397] WRIT OF ERROR 239 x Moot questions will not be decided by the appellate court.%7 The admission of testimony which is favorable to the party objecting to it cannot be assigned for error.?® But when a party persists in putting in evidence which is ‘objected to and which is erroneous, the error is fatal if the testimony was, or might have been, prejudicial; *° and the prosecution cannot be heard to disclaim error by asserting it is harmless, as by introducing .a confession to prove guilt, and then contending in the appellate court that such evidence did not tend to accomplish that pur- pose.*° Error is presumptively injurious unless shown to be harmless.*1 § 396. Review of discretionary actions of court.—Mat- ters within the discretion of the trial court are not re- viewable except for abuse of such discretion.*? Thus, the court’s action on motion for a new trial is not reviewable except for an abuse of his discretion.*® Likewise, as to rulings as to continuances; ** qualifica- tions of jurors; * regulation of order of proof; ** regula- tion of leading questions; **? rulings on timeliness of motions; #8 and rulings on motions to quash.*® § 397. Joint decision on joint writ of error.—Defend- ants who sue out a joint writ of error and join in the assignments of error and argument must have a joint 37—U. 8S. v. Arnold, 82 Fed. 769. 42—Grunberg v. U. S., 145 Fed. 88—Pierce v. U. S., 160 U. 8. 355; 81. Alexis v. U. S., 129 Fed. 60. 40 L. Ed. 454, Hart v. U. S., 84 Fed. 799. 39—Alkon v. U. 8., 163 Fed. 810. 43—See Sec. 322 supra. 40—Bram v. U. S., 168 U. 8. 532; 44—See Sec. 284 supra. 42 L. Ed. 568. 45—See Sec. 81 supra. 41—Williams v. U. S., 158 Fed. 46—See Sec. 279 supra. 30. Sprinkle v. U. 8., 150 Fed. 56. 47—See Sec. 280 supra. Miller v. Oklahoma, 149 Fed. 330. 48—See Sec. 281 supra. Crawford v. U. S., 212 U. 8S. 183;° 49—See Sec. 192 supra. 53 L. Ed. 465. Pettine v. New Mex- ico, 201 Fed. 489. 240 FEDERAL CRIMINAL PROCEDURE [§ 397 decision and the case must be affirmed or reversed as to both.®° § 398. Effect of supersedeas.—The supersedeas stays the execution of sentence but does not settle the question of bail pending the writ of error.*! 50—Krause v. U. 8., 147 Fed. 442. 51—McKnight v. U. S., 113 Fed. 451. § 399. § 400. § 401. § 402. § 403. § 404. § 405. § 406. § 407. § 408. § 409. § 410. § 411. § 412. § 413. § 414. § 415. § 416. § 417. § 418. § 419. § 420. § 421. § 422. § 493, § 424. CHAPTER XVII HABEAS CORPUS AND CONTEMPT A—HABEAS CORPUS Power of Federal Courts to Issue Writs of Habeas Corpus. Decisions Regarding Powers of Federal Courts in Habeas Corpus Cases. Power of Judges to Grant Writs of Habeas Corpus. Decisions Regarding Power of Judges to Grant Writs of Habeas Corpus. Writs of Habeas Corpus When Prisoner Is in Jail. Decisions Regarding Writs of Habeas Corpus When Prisoner Is in Jail. Application for the Writ of Habeas Corpus. Decisions Regarding the Application for the Writ of Habeas Corpus. Allowance and Direction of the Writ. Decisions Regarding Allowance of the Writ. Time for Making Return. Contents of Return. Function and Effect of Return. Body of Prisoner to Be Produced. Effect of Writ on Prisoner’s Custody. Time for Hearing. Denial of Return, and Amendments. Summary Hearing and Disposition of Party. Final Judgment on Habeas Corpus. . Effect of Change in Status Pending Habeas Corpus. Effect of Discharge. In International Cases, Notice to Be Given State Attor- ney-General. Right of Appeal in Habeas Corpus Case. Practice on Appeal i in Habeas Corpus Cases. Effect of Appeal in Habeas Corpus. Suspension of Privilege of Writ of Habeas Corpus. 241 242 . FEDERAL CRIMINAL PROCEDURE ' [§ 899 § 425. Decisions Regarding Suspension ok the Privilege of the Writ. § 426. Use of Habeas Corpus to Review Binsin - § 427. Jurisdictional Errors Discussed. . § 428. Habeas Corpus Distinct from Writ of Error. § 429. Use of Habeas Corpus to Anticipate Errors. § 480. Use of Habeas Corpus in Lieu of Other Remedies, § 431. Use of Habeas Corpus in Moot Cases. § 482. Inquiry by State Courts Into Federal Cases. § 433. Inquiry by Federal Courts Into State Cases. § 434. Use of Habeas Corpus to Review Extradition Proceed- ings. § 435. Use of Habeas Corpus to Review Removal Cases. § 4386. Use of Habeas Corpus to Review Courts Martial. § 437. Use of Habeas Corpus to Correct Sentence. § 488. Certiorari as Auxiliary to Habeas Corpus. B—CONTEMPT § 439. Power of Federal Courts to Punish Contempt. § 440. Decisions Regarding Power of Federal Courts in Con- tempt Cases. § 441. Nature of Contempt Proceedings. § 442. Contempt Defined. § 443. Procedure at Contempt Hearing. § 444. Manner of Presenting Defense. § 445. Form of Sentence. § 446. Effect of Contempt Proceedings on Other Prosecutions. '§ 399. Power of courts to issue writs of habeas cor- pus.—Sec. 751, Rev. Stats. ‘‘The Supreme Court. . . and District Courts shall have power to issue writs of habeas corpus.’’ 3 Fed. Stats. Anno. 162. § 400. Decisions regarding power of courts in habeas corpus cases.—Habeas corpus should be applied for in the lower courts of the United States rather than i in the Supreme Court in the absence of circumstances requir- ing direct action by the latter. The United States Supreme Court may grant the writ 1—Ex parte Mirzan, 119 v. 8. 584; 30 L. Hd. 513. § 403] HABEAS CORPUS AND CONTEMPT 243 even after a circuit court has refused to discharge the prisoner.? Where a writ of habeas corpus possesses appellate character it may be issued by one justice or by the entire Supreme Court but cannot be issued by virtue of original jurisdiction.® The Supreme Court can exercise its original powers in habeas corpus only when the inferior court has acted without jurisdiction or exhausted its powers to the preju- dice ot petitioner.* The Circuit Court of Appeals has no original jurisdic- tion in habeas corpus but may issue the writ in cases when necessary in connection with the exercise of a jurisdiction already existing.® § 401. Power of judges to grant writs of habeas corpus. ~—See. 752 Rev. Stats. ‘‘The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the pur- pose of an inquiry into the cause of restraint of liberty.’’ 3 Fed. Stats. Anno. 167. § 402. Decisions regarding power of justice to grant writs of habeas corpus.—The Supreme Court has refused to review the action of a circuit court judge in.a habeas corpus case when such action was taken by him in cham- bers.® § 403. Writ of habeas corpus when prisoner is in jail. —Sec. 753, Rev. Stats. ‘‘The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some 2—Ex parte Yerger, 75 U. 8. (8 5—Whitney v. Dick, 202 U. 8S. Wall.) 85; 19 L, Hd. 332. 132; 50 L. Ed. 963. 38—Ex parte Siebold, 100 U. S. 6—In re Metzger, 5 How. 176; 12 371; 25 L. Ed. 717. L. Ed. 104. 4—In re Lane, 135 U. S., 443; 34 L. Ed. 219. Byrne’s Crim. Proe.—18 244 FEDERAL CRIMINAL PROCEDURE [§ 403 court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the Constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify.’’ 3 Fed. Stats. Anno. 167. § 404. Decisions regarding writ of habeas corpus when prisoner is in jail—To require a writ of habeas corpus there must be an actual confinement or the present: means of enforcing it; mere moral restraint is not sufficient.” But it has been held that a person at large on bail is entitled to habeas corpus the same as if the imprisonment were actual and that the purpose of the writ is to test the right of the court issuing the process of arrest to detain the person for any purpose to the extent of re- straining him of his right to go without question.® A person in custody for an act done or omitted in pursuance of a law of the United States or of an order, process, or decree of court or judge thereof, or in custody for violation of the Constitution or a law or treaty of the . United States, may under Rev. Stats. 753 be brought before any court of the United States oF justice or judge thereof by writ of habeas corpus for the purpose of in- quiring into the cause of his detention, and the court or justice or judge is required by Rev. Stats. 761 to proceed in a summary way to determine the facts of the case by 7—Wales v. Whitney, 114 U. S. 8—Mackenzie v. Barrett, 141 Fed. 564; 29 L. Ed. 277. 964. ; * § 406] HABEAS CORPUS AND CONTEMPT 245 hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.® § 405. Application for the writ of habeas corpus.— Sec. 754, Rev. Stats. ‘‘Application for writ of habeas corpus shall be made to the court, or justice, or judge authorized to issue the same, by complaint in writing signed by the person for whose relief it is intended, set- ting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. The facts set forth ‘in the complaint shall be verified by the oath of the per- son making the application.’’ 3 Fed. Stats. Anno. 172. § 406. Decisions regarding the application for the writ of habeas corpus.—Allegations that petitioner is re- strained in violation of the Constitution and laws of the United States are mere conclusions of law and not state- ments of fact. Allegations of fact although not denied by the return are assumed to be admitted only when dis- tinct and unambiguous.’° When a petition for habeas corpus prays for the release of petitioner from process alleged to be illegal, copies of such process must be annexed to, or the essential parts thereof set forth in the petition, mere averments of con- clusions of law being ineffectual.11 The petition for habeas corpus where it is nani’ that the commitment was founded on evidence, must show, either all the evidence admitted as material, or allegations of facts, not conclusions of law, which clearly overcome the presumption that legal evidence was heard to support the commitment.” It has been suggested that though it is doubtful whether or not a formal demurrer is necessary or proper 9—In re Neagle, 1385 U. 8S. 1; 34 11—Craemer v. Washington, 168 L. Ed. 55. U. S. 125; 42 L. Ed. 407. 10—Whitten v. Tomlinson, 160 U. 12—In re Count De Lautree, 102 8. 231; 40 L. Ed. 406. Fed. 878. 246 FEDERAL CRIMINAL PROCEDURE [§ 406 t as to a habeas corpus petition, the petitioner may orally demur or suggest to the court that: the petition does not state a case entitling petitioner to the writ. But the practice seems to be that demurrers are generally allowed.1# § 407. Allowance and direction of the writ.—Sec. 755, Rev. Stats. ‘‘The court, or justice, or judge, to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself ‘that the petitioner is not entitled thereto. The writ shall be directed to the person in whose custody the party is detained.’’ 3 Fed. Stats. Anno. 173. § 408. Decision regarding allowance of the writ.— While it is usual to issue the writ on application, the court can dispense with the issuing and consider whether on the facts presented in the petition the prisoner, if brought before it, would be discharged; but the pre- sentation of a petition for the writ is the institution of an action on behalf of petitioner, and the allowance or refusal of process as well as the disposition of the person, is governed by law and not by the court’s discretion.2® In habeas corpus, if it appears that, upon the peti- tioner’s own showing, if the writ were granted the action of the court below must be approved, the popnos Court will not issue the writ.?” In jurisdictions where statutory appeals ie been provided for in habeas corpus cases, it has come to be the custom, either by rule of law or as a matter of practical administration, that a judge is not required to allow an 13—Horn v. Mitchell, 223 Fed. 16—Ex parte Milligan, 71 U. 8. 549, citing Frank v. Mangum, 237 (4 Wall.) 2; 18 L. Ed. 281. U. 8. 309; 59 L. Ed. 969. 17—Ex parte Terry, 128 U. 8. 14—Choy Gum v. Backus, 223 289; 32 L. Ed. 405. Fed. 487. 15—Ex parte Milligan, 71 U. 8. (4 Wall.) 2; 18 L. Ed. 281. § 411] HABEAS CORPUS AND CONTEMPT 247 application for a writ which has been denied by another judge but may remit petitioner to his remedy by appeal.1® Another case holds, however, that the doctrine of res adjudicata does not apply in habeas corpus mat- ters, although the judiciary have discretion to prevent an abuse of the writ, and that there exists no federal statute restricting the common law right of an applicant to petition successively every judge having authority in the matter.?® On an application for a writ of habeas corpus pre- sented to a federal court, it is not, required to issue the writ instanter, but the court in its discretion may instead make an order on the officer having custody of petitioner to show cause why the writ should not be issued.?° § 409. Time for making return.—Sec. 756, Rev. Stats. ‘‘Any person to whom such writ is directed shall make due return thereof within three days thereafter, unless the party be detained beyond the distance of twenty miles; and if beyond that distance and not beyond a distance of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days.’’ 3 Fed: Stats. Anno. 173. § 410. Contents of return.—Sec. 757, Rev. Stats. ‘‘The person to whom the writ is directed shall certify to the court, or justice, or judge before whom it is returnable the true cause of the detention of such party.’’ 3 Fed. Stats. Anno. 173. § 411. The function and effect of the return.—Where the return to a writ of habeas corpus is not traversed, issues of law only are presented in the case.1 In the federal courts the return to a writ of habeas 18—Ex parte Moebus, 148 Fed. 20—Ex parte Collins, 154 Fed. 39. 980. 19—In re Kopel, 148 Fed. 505. 21—Haas v. Henkel, 166 Fed. 621. 248 FEDERAL CRIMINAL PROCEDURE [§ 411 corpus is deemed to import verity until impeached.?? And where the return shows sufficient cause for the detention and the petitioner merely moves for a dis- charge on the averments of the return, without offering evidence, an order dismissing the writ is proper.?* However, the rule of the common law that a showing by the return that the prisoner was held by virtue of a judgment or decree of a court of competent jurisdiction, closed the inquiry, has been liberalized by the acts of Congress and the decisions of the federal courts, so that a prisoner in custody under final judgment of a state court of criminal jurisdiction may have a judicial inquiry by habeas corpus in a federal court into the very truth and substance of the causes of the detention, even though it may become necessary to look behind and beyond the record of conviction to a sufficient extent to test the juris- diction of the state courts to proceed to judgment against him.4 § 412. Body of the prisoner to be produced.—Sec. 758, Rev. Stats. ‘‘The party making the return shall at the same time bring the body of the party before the judge who granted the writ.’? 3 Fed. Stats. Anno. 174. § 413. Effect of the writ on prisoner’s custody.—The effect of the writ of habeas corpus is to place the custody of the petitioner in the court issuing the writ, and when a sheriff’s right of custody is thus superseded he is not liable for the prisoner’s escape.” § 414. Time for hearing.—Sec. 759, Rev. Stats. ‘“When the writ is returned, a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning requests a longer time.’’ 3 Fed. Stats. Anno. 174. 22—Crowley v. Christensen, 137 24—-Frank v. Mangum, 237 U. 8. U. S. 86; 34 L. Ed. 620. 309; 59 L. Ed. 969. 23—Carter v. McClaughry, 183 U. 25—Barth v. Clise, 79 U. 8S. (12 8. 365; 46 L. Ed. 236. Wall.) 400; 20 L. Ed. 393. § 418] HABEAS CORPUS AND CONTEMPT 249 § 415. Denial of return and amendments.—Sec. 760, Rev. Stats. ‘‘The petitioner or the party imprisoned or restrained may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case. Said denials or allegations shall be under oath. The return and all suggestions made against it may be amended, by leave of the court, or justice, or judge, before or after the same are filed, so that thereby, the material facts may be ascertained.’’? 3 Fed. Stats. Anno. 174. § 416. Summary hearing and disposition of party.— Sec. 761, Rev. Stats. ‘‘The court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.’’? 3 Fed. Stats. Anno. 174. § 417. Final judgment on habeas corpus.—Upon habeas corpus the federal courts have jurisdiction and author- ity by Rev. Stats. 761 to dispose of the party as law and justice may require and need not discharge the person absolutely even though the particular proceedings under which he is held are unwarranted and illegal, but may order his surrender to any other person or authority shown by the record to have the right by law to detain the petitioner.”® Thus, on application for habeas corpus on ground that petitioner’s sentence is illegal, the court can on finding this to be so, direct the prisoner’s return to the trial court for a correction of the sentence and should not set the sentence aside and allow the convict to escape punish- ment altogether.?” § 418. Effect of change in status pending habeas corpus.— Where the status of petitioner changes between 26—Motherwell v. U. S., 107 Fed. citing In re Bonner, 151 U. 8. 242; 437. 38 L. Ed. 149. U. 8. v. Carpenter, 27—Bryant v. U. S., 214 Fed. 51, 151 Fed. 214. 250 FEDERAL CRIMINAL PROCEDURE [§ 418 the time of issuing the writ and the final decision thereon, the court will consider the latter status as the one on which judgment should be rendered, so that one resisting interstate extradition by habeas corpus on the ground that he is an officer of a foreign government, will he remanded to custody, if his official status is lost before the decision in habeas corpus.?8 § 419. Effect of discharge —A discharge in habeas corpus releases from the instant process but does not prevent detention on other process even under the same indictment.?® One erroneously discharged on habeas corpus may be retaken and reimprisoned when such order of discharge is reversed by the Circuit Court of Appeals.® § 420. In international cases, notice to be given state attorney general.—Sec. 762, Rev. Stats. ‘‘When a writ of habeas corpus is issued in the case of any prisoner who, being a subject or citizen of a foreign state and domiciled therein, is committed or confined, or in custody, by or under the authority or law of any one of the United States, or process founded thereon, on account of any act done or omitted under an alleged right, title, authority, privilege, protection, or exemption, claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations, notice of the said pro- ceeding, to be prescribed by the court, or justice, or judge at the time of granting said writ, shall be served on the attorney general or other officer prosecuting the pleas of said State, and due proof of such service shall be made to the court, or justice, or judge before the hearing.’’? 3 Fed. Stats. Anno. 175. i 28—Tasigi v. Van De Carr, 166 U. 30—Haddox v. Richardson, 168 S. 391; 41 L. Ed. 1045. U.S. v. Fed. 635. Patterson, 29 Fed. 775. 29—Ex parte Milburn, 34 U. 8. (9 Pet.) 704; 9 L. Ed. 208. § 422] HABEAS CORPUS AND CONTEMPT 251 § 421. Right of appeal in habeas corpus case—If a Constitutional question is involved a direct appeal can be taken to the Supreme Court.! Such question, however, must be sufficiently set forth in the petition for habeas corpus.*? Likewise, a dismissal by the highest court of a state of writ of habeas corpus is reviewable in the United States Supreme Court when a constitutional question has been saved.®3 No appeal lies to the Supreme Court from an order of a federal circuit judge sitting as a judge and not as a court, which dismisses a person from custody.* Mandamus cannot review habeas. corpus proceedings except where the latter are ancillary to proceedings wherein mandamus is the proper remedy for error.*5 The Supreme Court can issue a writ of habeas corpus under its appellate jurisdiction only, except in cases involving ambassadors, public ministers, consuls, or those in which a state is a party.* § 422. Practice on appeal in habeas corpus cases.—An appeal in habeas corpus lies under Rev. Stats. 767 and 761 but not Rev. Stats. 752.37 Appeals in habeas corpus cases are governed by the statute regulating civil appeals.*® Appeal and not writ of error is the proper method of obtaining appellate review in a habeas corpus case.®° 31—Carter v. Roberts, 177 U. 8. 496; 44 L. Ed. 861. Motes v. U.S., 178 U.S. 458; 44 L. Ed. 1150. Dim- mick v. Tompkins, 194 U. 8S. 540; 48 L. Ed. 1110. McKane v. Durston, 153 U. 8. 684; 38 L. Ed. 867. 32—Carter v. Roberts, 177 U. S. 496; 44 L, Ed. 861. 33—Tinsley v. Anderson, 171 U. S. 101; 43 L. Ed. 91. 34—Harkrader v. Wadley, 172 U. 8. 148; 43 L. Ed. 399. 35—Virginia v. Paul, 148 U. 8. “107; 37 L. Ed. 386. 36—Ex parte Hung Hang, 108 U. S. 552; 27 L. Ed. 811. 37—Carper v. Fitzgerald, 121 U. S. 87; 30 L. Ed. 882. 38—Ex parte Tom Tong, 108 U. S. 556; 27 L. Ed. 826. 39—Rice v. Ames, 180 U. S. 371; 45 L. Ed. 577. Morrissey, In re, 137 U. 8. 187; 34.L. Ed. 644. Fisher v. Baker, 203 U. S. 174; 51 L. Ed. 142. Reid v. Jones, 187 U. 8. 153; 47 L. Ed. 116. See also In re Schneider, 148 U. S. 157; 37 L. Ed. 404, \ 252 FEDERAL CRIMINAL PROCEDURE [§ 422 An appeal from a decision of a United States court in habeas corpus under Rev. Stats. 764 as amended brings up the whole case both law and facts and imposes upon the Supreme Court the duty of rehearing it upon the full record as heard in the inferior court.*° An order is final so as to justify appeal, when it terminates the custody of the person and puts an end to his imprisonment under process holding him, even though he is discharged only pending an injunction.*1 On appeal in habeas corpus cases no bill of exceptions is necessary, the rule being that in cases reviewed by appeals a bill of exceptions is not needed.” The mandate will be stayed pending application for certiorari to the Supreme Court where the issuance of the mandate would result in placing the petitioner in the hands of officers of another jurisdiction.*? It seems that an appeal cannot be taken in habeas corpus from the decision of a judge sitting as a judge rather than as a court.** '§ 423. Effect of appeal in habeas corpus.—The con- tinued execution of sentence by a state court after an appeal to the United States Supreme Court from a deci- sion of the United States circuit court denying a writ of habeas corpus is not violative of Rev. Stats. 766.4° After final judgment in the Supreme Court affirming judgment of a United States circuit court denying habeas corpus for a person convicted of murder by a state court, the restraint upon the state court terminates and it may proceed to execute sentence without waiting for the 40—In re Neagle, 135 U. 8. 1; 44—Harkrader v. Wadley, 172 U. 34 L. Ed. 55. S. 148; 43 L. Ed. 399. Ex parte 41—Harkrader v. Wadley, 172 U. Jacobi, 104 Fed. 681. 8. 148; 43 L. Ed. 399, 45—McKane v. Durston, 153 U. 42—Solomon y. Davenport, 87 8S. 684; 38 L. Ed. 867. Fed. 318. 43—Rose v. Roberts, 99 Fed. 952. § 426] HABEAS CORPUS AND CONTEMPT 253 mandate of the Supreme Court, although the propriety of so acting seems doubtful.** § 424. Suspension of privilege of writ of habeas corpus. —Section 9, Article I, U.S. Constitution. ‘‘The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.’’ 8 Fed. Stats. Anno. 690. § 425. Decisions regarding suspension of the privilege of habeas corpus.—The suspension of the privilege of the writ does not suspend the writ itself, it issues as a matter of course, and on its return the court decides whether or not the applicant can proceed farther.*7 § 426. Use of habeas corpus to review errors.—Habeas corpus lies only for lack of jurisdiction or for errors which render the judgment attacked void and not merely erroneous.*® Thus where petitioner is held in contempt for disobedience to an unconstitutional law, habeas corpus will lie.*® Likewise, a judgment in a criminal case which denies to the defendant a constitutional right or inflicts an unconstitutional penalty is void and he will be discharged on habeas corpus.®° But unless the com- mitment in a contempt case is absolutely void, habeas -corpus is not the proper method of review.™! But if the 46—In re Jugiro, 140 U. S. 291; 35 L. Ed. 570. 47—-Ex parte Milligan, 71 U. 8S. (4 Wall.) 2; 18 L. Ed. 281. 48—Felts v. Murphy, 201 U. 8. 123; 50 L. Ed. 689. Ex parte Belt, 159 U.S. 95; 40 L. Ed. 88. Horner v. U. S., 148 U. 8. 570; 36 L. Ed. 266. In re Wight, 134 U. 8. 136; 33 L. Ed. 865. Inte Greene, 134 U. 8. 877; 33 L. Ed. 951. Davis v. Beason, 183 U. 9. 333; 33 L. Ed. 637. In re Reese, 107 Fed. 942. Hopkins v. McClaughry, 209 Fed. 821. Harlan v. McGourin, 218 U. S. 442; 54 L. Ed. 1101. Ex parte Lange, 85 U. S. (18 Wall.) 163; 21 L. Ed. 872. In re Frederich, 149 U. S. 70; 37 L. Ed. 653. In re Jugiro, 140 U. 8. 291; 35 L. Ed. 570. In re Wilson, 140 U. 8. 575; 35 L, Ed. 513. Counselman v. Hitchcock, 142 U. 8. 547; 35 L. Ed. 1110. In re Ayers, 123 U. S. 443; 31 L. Ed. 216. _ 49—Counselman v. Hitchcock, 142 U. 8. 547; 35 L. Ed. 1110. 50—In re Neilsen, 131 U. 8. 176; 33 L. Ed. 118. 51—Tinsley v. Anderson, 171 U. 254 FEDERAL CRIMINAL PROCEDURE [§ 426 court did not have jurisdiction of the person of the offender, its order committing him for contempt is a nullity; °? so also if a person refuses to obey in a federal court a state law which is in conflict with United States laws.53 The rule has also been expressed as follows, that mistakes of law or fact by the trial court, no matter how gross, if they do not affect its jurisdiction, cannot be reviewed on habeas corpus.** When a court has juris- diction of the offense charged and the person accused, its judgments are not nullities.®® A court cannot on habeas corpus look behind the record of a court of co-ordinate jurisdiction to review its proceedings.5® And in cases of collateral attack on a judgment as by habeas corpus every.intendment must be made in support of the judgment, such as that the court had jurisdiction of the subject-matter.*” § 427. Jurisdictional errors discussed.—The validity of the action of a de facto judge having colorable authority cannot be attacked on habeas corpus.®® And, in fact, it seems the actions of such judge are not open to objection by defendant even in a criminal trial.°° When an indictment is attacked on habeas corpus the inquiry is not as to whether the pleading would be good: on demurrer but whether it, describes a class of offenses within the court’s jurisdiction and alleges defendant to be guilty. 8. 101; 43 L. Ed. 91. In re Debs, 56—Ex parte Alexander, 14 Fed. 158 U. 8. 564; 39 L, Ed. 1092. 680. 52—Ex parte Terry, 128 U. 8. 57—In re Cuddy, 131 U. 8. 280; 289; 32 L. Ed. 405. 33 L. Ed. 154. 538—Ex parte Fiske, 113 U. S. 58—Ex parte Ward, 173 U. 8. 713; 28 L, Ed. 1117. Ex parte Row- 452; 48 L. Ed. 765. land, 104 U.S. 604; 26 L. Ed. 861. 59—McDowell v. U. S., 159 U. 8. 54—Keizo v. Henry, 211 U. S. 596; 40 L, Ed. 271. Ball v. U.S, 146; 53 L. Ed. 125, 140 U. 8. 118; 35 L. Ed. 377. Me- 55—Ex parte Bigelow, 113 U. 8. Dowell v. U. 8, 74 Fed. 403. 328; 28 L. Ed. 1005. 60—In re Coy, 127 U. 8. 131; 82 . § 428] HABEAS CORPUS, AND CONTEMPT 255 On the same principle it has been held that the failure of a verdict to specify the degree of murder is not a ‘jurisdictional defect.*! But where a sentence has been imposed which neither the verdict nor the statute author- ize, the defendant is entitled to discharge on habeas corpus.®2 However when habeas corpus attacks a sen- tence which is defective in form only, the trial court will be given an opportunity to correct such sentence; * and generally the averments of a sentence of conviction can- not be disputed on habeas corpus except for fraud, non- identity, or want of jurisdiction.** § 428. Habeas corpus distinct from writ of error.—A writ of habeas corpus cannot perform the functions of a writ of error. This rule is applied both to appeal and original habeas corpus cases in the Supreme Court.* However, where no writ of error or appeal will lie, relief may be afforded by habeas corpus in cases where the petitioner is imprisoned under the judgment of a United States court which had no jurisdiction of the L. Ed. 274. In re Rowe, 77 Fed. 161. In re Gregory, 219 U. S. 210; 55 L. Ed. 184. Harlan v. MeGourin, 218 U. 8. 442; 54 L, Ed. 1101. Felts v. Murphy, 201 U. 8. 123; 50 L. Ed. 689. 61—In re Eckart, 166 U. 8. 481; 41 L. Ed. 1085. 62—In re Burns, 113 Fed. 987. 63—U. S. v. Carpenter, 151 Fed. 214, 7 64—Ex parte Lange, 85 U. S. (18 Wall.) 163; 21 L. Ed. 872. Ex parte Young, 209 U. S. 123; 52 L. Ed. 714, Ex parte Carll, 106 U. 8. 521; 27 L. Ed. 288. Ex parte Yarbor- ough, 110 U. 8. 651; 28 L, Hd. 274. 65—In re Cortes, 136 U. 8. 330; 34 L. Ed. 464. Davis v. Beason, 133 U. 8. 333; 33 L. Ed. 637. In re Savin, 131 U. 8. 267; 33 L. Ed. 150. Ex parte Carll, 106 U. 8. 521; 27 L. Ed. 288. Ex parte Siebold, 100 U. S. 371; 25 L, Ed. 717. Ex parte Parks, 93 U. S. 18; 23 L. Ed. 787. Stevens v. McClaughry, 207 Fed. 18. De Bara v. U. S., 99 Fed. 942. U. 8. v. Lair, 195 Fed. 47. In re Rowe, 77 Fed. 161. Howard v. U. S., 75 Fed. 986. In re Boyd, 49 Fed. 48. Charlton v. Kelly, 229 U. 8. 447; 57 L. Ed. 1274. Glasgow v. Moyer, 225 U. S. 420; 56 L. Ed. 1147. Ex parte Spencer, 228 U. S. 652; 57 L. Ed. 1010. Ss 66—Gonzales v. Cunningham, 164 U. S. 612; 41 L. Ed. 572. In re Schneider, 148 U. 8. 157; 37 L. Ed. 404. 256 FEDERAL CRIMINAL PROCEDURE - [§ 428 person or subject-matter or authority to render the judg- ment complained of.%” Habeas corpus not being a writ of error, the action of the trial court in consolidating, indictments cannot be reviewed under it. Likewise, the court should not on habeas corpus review the facts on which a commitment was ordered or the regularity of the proceedings which resulted in the commitment.*® § 429. Use of habeas corpus to anticipate errors.— Habeas corpus cannot anticipate errors in advance of the trial and avoid them before they have been committed; ® thus the indictment cannot be attacked by habeas corpus in advance of a demurrer or motion to quash in the trial court.” However, while the writ of habeas corpus is not usually granted in advance of trial, yet if the defendant is held without any lawful authority and by an order beyond the jurisdiction of an inferior court to make the Supreme Court will grant the writ and examine the lower court’s authority.71 But the Supreme Court strongly disap- proves of granting habeas corpus before the trial except in extraordinary cases. And a case is not extraordinary so as to call for habeas corpus in-advance of trial where the defendant is at liberty on bail.7? —§ 430. Use of habeas corpus in lieu of other remedies.— Habeas corpus should be denied when petitioner can have a trial on the merits and an appellate review of such 67—In re Tyler, 149 U. S. 164; “Henkel, 235 U. 8. 219; 59 L. Ed. 37 L. Ed. 689. 68—In re Reese, 107 Fed. 942. 69—Ohio v. Dollison, 194 U. 8. 446; 48 L. Ed. 1062. Ex parte Crouch, 112 U. 8. 178; 28 L, Ed. 690. Johnson v. Hoy, 227 U. 8. 445; 57 L. Ed. 497. In re Chapman, 156 U.S. 211; 39 L. Ed. 401. Henry v. 203. 70—In re Lancaster, 137 U. S. ° 393; 34 L. Ed. 713. 71—Ex parte Virginia, 100 U. 8. 339; 25 L. Ed. 676, 72—Johnson v. Hoy, 227 U. 8. 445; 57 L. Ed. 497. Ex parte Steiner, 202 Fed. 419. §431] HABEAS CORPUS AND CONTEMPT 257 trial.” And the defendant is not allowed to reserve defenses which might have been raised either at the trial or on appeal, and afterwards use such defense as the basis for a writ of habeas corpus as this would confuse the administration of justice.”4 Likewise, habeas corpus will not be granted where there is a remedy by appeal or writ of error except in rare and exceptional cases,?> and the accused should ordinarily exhaust his remedy by writ of error before seeking habeas corpus."® The rule holds true also in cases where a person is held by a state in alleged violation of the United States Con- stitution, as the federal courts have a discretion as to whether the writ of habeas corpus shall issue or whether the accused should be forced to exhaust his remedy by writ of error.”7. And the accused usually should exhaust his remedies of appeal in the state courts before seeking habeas corpus in the federal courts.7® § 431. Use of habeas corpus in moot cases.—Leave to file a petition for habeas corpus will be denied where it is obvious that before the writ can issue the restraint will be terminated.”® Likewise, a petition alleging the imposi- 73—Hooper v. Remmel, 165 Fed. 336. 74—-Ex parte Spencer, 228 U. S. 652; 57 L. Ed. 1010. Glasgow v. Moyer, 225 U. 8. 420; 56 L. Ed. 1147. 75—Riggins v. U. 8., 199 U. 8. 547; 50 L. Ed. 303. 76—In re Lincoln, 202 U. 8. 178; 50 L. Ed. 984. In re Chapman, 156 U. S. 211; 39 L. Ed. 401. In re Swan, 150 U. S. 637; 37 L. Ed. 1207. 77—In re Lincoln, 202 U. 8. 178; 50 L. Ed. 984. Ex parte Royall, 117 U. S. 241; 29 L. Hd. 868. U.S. v. McAleese, 93 Fed. 656. In re Huse, 79 Fed. 305.. In re Rowe, 77 Fed. 161. 78—Minnesota v. Brundage, 180 U.S. 499; 45 L. Ed. 639. New York v. Eno, 155 U. 8. 89; 39 L. Ed. 80. Pepke, v. Cronan, 155 U. 8S. 100; 39 L. Ed. 84. Cook v. Hart, 146 U. 8. 183; 36 L. Ed. 934. In re Wood, 140 U. 8. 278; 35 L. Bd. 505. In re Duncan, 139 U. 8. 449; 35 L. Ed. 219. ‘Ex parte Royall, 117 U. 8. 241; 29 L. Ed. 868. Ex parte Ul- rich, 43 Fed. 661. ; 79—Ex parte Baez, 177 U. 8. 378; 44 L. Ed. 813. 258 FEDERAL CRIMINAL PROCEDURE [§ 431 tion of excessive bail will be dismissed when petitioner gives such bail before the decision on habeas corpus.®° § 432. Inquiry by state courts into federal cases.—State courts may inquire into the legality of a detention alleged to be unlawful even though the alleged illegality may arise from a violation of the Constitution and laws of-the United States, unless the detention is by order of a federal court, or commissioner or United States officer acting under the authority of United States laws. And it has been held that the state court should not inquire further than to ascertain that the party is in fact held under authority of the United States by an officer of that government.®? § 433. Inquiry by federal courts into state cases.— Ordinarily, the federal courts will not interfere by habeas corpus with the state courts when the defendant has an opportunity after conviction to take a writ of error to the state supreme court and then to the United States Supreme Court.®? Federal courts should not issue the writ of habeas corpus to state courts except in urgent and exceptional cases. Thus, the surrender of defendant by his bail at his request and his consequent imprisonment does not constitute a case of urgency calling for the issuance of the writ.® 80—Johnson v. Hoy, 227 U. 8S. 445; 57 L. Ed. 497. 81—Robb v. Connolly, 111 U. 8S. 624; 28 L. Ed. 542. 82—Ableman v. Booth, 21 How. 506; 16 L. Ed. 169. U. 8. v. Tarble, 80 U. S. (18 Wall.) 397; 20 L. Ed. 597. 83—Ex parte Spencer, 228 U.S. 652; 57 L. Ed. 1010. Urquhart v. Brown, 205 U. S. 179; 51 L. Ed. 750. 84—Tinsley v. Anderson, 171 U. 8. 101; 43 L. Ed. 91. Eaton v. W. Virginia, 91 Fed. 760. Ex parte Spencer, 228 U. S. 652; 57 L. Ed. 1010. Pettibone v. Nichols, 203 U. S. 192; 51 L. Ed. 148. Drury v. Lewis, 200 U. S. 1; 50 L. Ed. 343. Baker v. Grice, 169 U. S. 284; 42 L. Ed. 748. Whitten v. Tomlinson, 160 U. S. 231; 40 L. Ed. 406. In re Wood, 140 U. 8. 278; 35 L. Ed. 505. 85—Baker v. Grice, 169 U. 8. 284; 42 L. Ed. 748. § 434] HABEAS CORPUS AND CONTEMPT 259 There must be some apparent violation of a right given by the Constitution to justify the issuance of a writ, where an arrest by the state authorities is alleged to be in violation of the Constitution or laws of the United States.8° But a person held in custody by a state on a charge over which the United States has exclusive juris- diction will be released by the federal courts on habeas corpus.®? And a person arrested by the state authorities for an act done in pursuance of an order or process of a federal court may sue out habeas corpus in United States courts.®® Rights under the federal Constitution must be claimed in the state courts or the United States Supreme Court: will not consider them, notwithstanding the fact that the state supreme court discussed them on writ of error.®® Questions depending upon state laws will not be reviewed by the United States courts on habeas corpus.” Nor will matters of state jurisdiction or practice or the ‘repugnancy of state statutes with the state constitution be considered by federal courts.** § 434. Use of habeas corpus to review extradition pro- ceedings.— Where habeas corpus is sued out in an extra- dition case before any evidence is heard by the extradi- tion magistrate, the only questions are as to such magistrate’s jurisdiction and the petitioner will not be allowed to produce evidence tending to show that no 86—Rogers v. Peck, 199 U. 8S. 89—Howard v. Fleming, 191 U. 8S. 425; 50 L. Ed. 256. Carfer v. Cald- well, 200 U. S. 293; 50 L. Ed. 488. Baker v. Grice, 169 U. S. 284; 42 L. Ed. 748. In re Graham, 138 U. S. 461; 34 L. Ed. 1051. Berger- mann v. Backer, 157 U. S. 655; 39 L. Ed. 845, Andrews v. Swartz, 156 U. 8. 272; 39 L. Ed. 422. 87—In re Loney, 134 U. 8. 372; 33 L. Bd. 949. 88—Hunter v. Wood, 209 U. 8. 205; 52 L. Ed. 747. Byrne’s Crim. Proc.—19 126; 48 L. Ed. 121. Davis v. Burke, 179 U. S. 399; 45 L. Hd. 249. 90—Storti v. Massachusetts, 183 U. S. 138; 46 L. Ed. 120. Kohl v. Lehlback, 160 U. 8. 293; 40 L. Ed. 432. Lambert v. Barrett, 157 U.S. 697; 39 L. Ed. 865. 91—Carfer v. Caldwell, 200 U. S. 293; 50 L. Hd. 488. Andrews v. Swartz, 156 U. 8. 272; 39 L. Ed. 422. Frank v. Mangum, 237 U. 8. 309; 59 L. Ed. 969. \ 260 | FEDERAL CRIMINAL PROCEDURE [§ 434 extraditable offense has been committed.®? Likewise, in cases of international extradition if the commissioner had jurisdiction of the subject-matter and of the person of the accused and the offense, charged was within the terms of a treaty of extradition and the commissioner had competent legal evidence on which to. base his decision, it cannot be reviewed by habeas corpus.®* And, generally on habeas corpus in an extradition case the rule is that the merits of the controversy between the accused and the demanding state will not be considered.® Habeas corpus cannot be used to end extradition pro- ceedings regularly begun in accordance with the Con- stitution.% On habeas corpus in extradition cases the question to be determined is had the commissioner jurisdiction and a sufficient legal ground for his action, mere errors of procedure being immaterial®® And if the evidence makes out a prima facie case of fleeing from justice, its sufficiency will not be further considered.” A similar rule obtains with respect to indictments, a substantial charge of crime being sufficient to defeat habeas corpus. Also the question of guilt or innocence is not in issue, and the only points to be decided are as to the person’s identity and whether or not he was in the demanding state when the crime was committed. A claim that extradition was accomplished by fraud or connivance on the part of the state authorities does not 92—Terlinden v. Ames, 184 U. 8. 97—Ex parte Reggel, 114 U. S. 270; 46 L. Ed. 534. ~ 642; 29 L. Ed, 250. 93—In re Cortes, 136 U. S. 330; 98—Strassheim v. Daily, 221 U. 34 L. Ed. 464. Charlton v. Kelly, 8S. 280; 55 L. Ed. 735. Pierce v. 229 U. 8. 447; 57 L. Ed. 1274. Creecy, 210 U. S. 387; 52 L. Ed. 94—Roberts v. Reilley, 116 U.S. 1113. U.S. v. Pridgeon, 153 U. S. 80; 29 L. Ed. 544. 48; 38 L. Ed. 631. 95—Terlinden v. Ames, 184 U. 8. 99—In re White, 55 Fed. 54. See 270; 46 L. Ed. 534. also Grin v. Shine, 187 U. 8S. 181; 96—Benson v. McMahon, 127 U. 47 L. Ed. 130. 8. 457;.32 L. Ed. 284. § 436] HABEAS CORPUS AND CONTEMPT 261 raise an issue which will be considered by the federal courts on habeas corpus.’ The federal courts have a discretion as to the issuance of habeas corpus in cases of interstate extradition.1° § 435. Use of habeas corpus to review removal cases.— Removal proceedings where the magistrate had jurisdic- tion cannot be attacked on the merits by habeas corpus; } and, on habeas corpus the courts will not hear the evi- dence taken in removal proceedings.2, And where a per- son is committed for trial in another district the question of his identity cannot be reviewed on habeas corpus.® But it has been held that under the removal statute a person arrested in one state upon an indictment found in another may, on habeas corpus, show that the alleged offense was not committed within the state where the indictment was found.‘ § 436. Use of habeas corpus to review courts martial. Civil courts cannot by appellate proceedings review the actions of a court martial unless by authority of some specific enabling statute. However, civil courts may by © means of habeas corpus inquire into the jurisdiction of a court martial but cannot review or correct mere errors in its proceedings. And if the court martial has juris- diction of the person accused and of the offense charged, its decision and sentence are beyond reach of the civil courts.? And, likewise, a person legally in custody await- 100—Pettibone v. Nichols, 203 U. 8. 192; 51 L. Ed. 148. 101—Iasigi v. Van De Carr, 166 U.S. 391; 41 L. Ed. 1045. 1—Greene v. Henkel, 183 U. S. 249; 46 L. Ed. 177. 2—Price v. Henkel, 216 U. 8. 488; 54 L. Ed. 581. In re Count De Lautrec, 102 Fed. 878. 3—Horner v. U. 8., 143 U. 8. 207; 36 L. Ed. 126. 4—U. 8. v. Fowkes, 53 Fed. 13. 5—Wales v. Whitney, 114 U. S. 564; 29 L. Ed. 277. 6—In re Grimley, 137 U. S. 147; 34 L. Ed. 636. 7—Johnson v. Sayre, 158 U. 8. 109; 39 L. Ed. 914. Ex parte Ma- son, 105 U. 8. 696; 26 L. Ed. 1213. Rose v. Roberts, 99 Fed. 952. In re Davison, 21 Fed. 618. Ex parte Reed, 100 U. S. 13; 25 L. Ed. 538. Dynes v. Hoover, 20 How. 65; 15 L. Ed. 838. Ex parte Vallandigham, 262 FEDERAL CRIMINAL PROCEDURE [§ 436 ing trial by a court martial cannot be released on habeas corpus by a United States civil court.® However, where a court martial is without jurisdiction in being composed of officers ineligible to form it, consent of the accused cannot confer jurisdiction and the defect can be raised by habeas corpus.® Proceedings in court martial, of course, are conducted in conformity with military law and not common law.’° § 437. Use of habeas corpus to correct sentence.— Habeas corpus cannot be used to obtain the discharge of petitioner unless the sentence is entirely void;1! and where a sentence exceeds the authority of the court, only the excess is void.1? And so a sentence being legal so far as it is within the provisions of law and the jurisdic- tion of the court over the person and the offense, a petitioner cannot be discharged on habeas corpus until he has undergone the legal and proper portion of the sentence.!3 However, it has been held that where a person is con- fined under a sentence embracing two terms of imprison- ment, the second of which is illegal, he can be discharged on habeas corpus before the expiration of the first term, because of the effect which the illegal term has on his right to petition for parole after serving one-third of his total sentence. (Act of June 25, 1910, 1912 Supl. Fed. Stats. Anno. 304.) 4 68 U. 8. (1 Wall.) 243; 17 L. Ed. 589. 8—In re Davison, 21 Fed. 618. In re White, 17 Fed. 723. 9—McClaughry v. Deming, 186 U. 8. 49; 46 L. Ed. 1049. 10—Kirkman v. McClaughry, 160 Fed. 436. 11—U. 8S. v. Pridgeon, 153 U. 8. 48; 38 L. Ed. 631. 19—Flaslan v. McGourin, 218 U.' 8. 442; 54 L. Ed. 1101. 18—In re Swan, 150 U. S. 637; 37 L. Ed. 1207. De Bara v. U. 8, 99 Fed. 942, Munson v. McClaughry, 198 Fed. 72. Stevens v. McClaughry, 207 Fed. 18. Halligan v. Wayne, 179 Fed. 112. U. S. v. Peeke, 153 Fed. 166. 14—O’Brien v. MeClaughry, 209 Fed. 816. § 440] HABEAS CORPUS AND CONTEMPT 263 § 438. Certiorari as auxiliary to habeas corpus.— Certiorari as auxiliary to habeas corpus is discretionary with the court.15 B—CONTEMPT § 439. Power of federal courts to punish contempt. —Sec. 268, Judicial Code. ‘‘The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not _ be construed to extend to any cases except the misbe- havior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbe- havior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts.’? 1912 Supl. Fed. Stats. Anno. 243. § 440. Decisions regarding powers of United States courts in contempt cases.—The power of federal courts to punish for contempt is incidental to their power to exercise judicial functions and the cases in which such power may be employed are enumerated by acts of Congress.1¢ United States commissioners have no powee to punish for contempt.?" Section 268 of the Judicial Code (formerly Rev. Stats. 725) is a limitation upon the powers of federal courts to punish for contempt, and restricts such power to the cases specifically enumerated i in the statute.'§ 15—Hyde v. Shine, 199 U. 8. 62; 289; 32 L. Ed. 405. U.S. v. Tom 50 L. Ed. 90. Wah, 160 Fed. 207. ; 16—In re Debs, 158 U. S. 564; 39 17—Ex parte Perkins, 29 Fed. L. Ed. 1092. Interstate Com. Com. 900. v. Brimson, 154 U. 8.447; 38 L. Ed. | 18—Ex parte Buskirk, 72 Fed. 14. 1047. Ex parte Terry, 128 U. S. 7 264 FEDERAL CRIMINAL PROCEDURE _[§ 440 A court’s jurisdiction is conclusive-as to contempt of its authority and another court is without power to bail or discharge a prisoner committed for contempt of a court which had jurisdiction to make the order and to issue the commitment.?® § 441. Nature of contempt proceedings.—A criminal contempt is no part of the main case but is a proceeding independent and apart therefrom in the nature of a criminal prosecution.2° Likewise, a proceeding to punish for violation of an injunction is criminal in character.?! The distinction between civil and criminal contempt gen- ‘erally is that the former consists of a refusal to do a thing required by court and therefore the punishment is coercive and remedial; while in criminal contempt the accused has done something he has been commanded not to do and the disobedience being a thing accomplished, the sentence is fixed and definite and intended solely to punish the offender and vindicate the court’s authority. A. civil contempt proceeding terminates with the termi- nation of the cause out of which it developed; while a criminal contempt case exists independently of its parent cause.?? , § 442. Contempt defined.—The court, at least when in session, is present in every place set apart for its own use and for its jurors, officers and witnesses, and mis- behavior in any of such places is deemed misbehavior in the presence of the court.?? Thus, misconduct in endeav- oring to obstruct a witness in the presence of the court or so near it as to obstruct the administration of justice may be punished by contempt proceedings.** Likewise, 19—In re Nevitt, 117 Fed. 448. Range Co., 221 U. 8. 418; 55 L. Ed. 20—Gompers v. Bucks Stove & 797. Range Co., 221 U. 8. 418; 55 L. Ed. 23—In re Savin, 131 U. 8. 267; 797. §. Anargyros v. Anargyros & 33 LL. Ed. 150. Co., 191 Fed. 208. 24—In re Savin, 181 U. S. 267; 21—U. S. v. Colo., 216 Fed. 654. 33 L. Ed. 150. 22—Gompers v. Bucks Stove & t § 443] HABEAS CORPUS AND CONTEMPT 265 an attempt although at a considerable distance from the court house to corrupt jurors expected to sit on the trial of a case is contempt in the court’s presence.”® There can be no contempt by disobedience of an order made and entered subsequently to the alleged contempt.*° On the other hand, the fact that a case has been concluded does not prevent the court from punishing as a contempt an assault upon a court officer because of the performance _ of his duty in such past case.?? A court has power to treat as a criminal contempt persistent perjury which blocks the inquiry before it.?8 § 443. Procedure at contempt hearing—A federal court upon commission of contempt in its presence may, upon its own knowledge of the facts, without further proof, without issue or trial, and without hearing the explanation of the motives of the offender immediately proceed to determine whether the facts justify punish- ment and to inflict such punishment as the law allows.”® If the offender leaves the court room the court may pro- ceed notwithstanding his absence, or may cause his arrest and give him an opportunity to defend the charge of contempt, and jurisdiction of the person of the con- temnor is not lost by his flight or voluntary absence.?° In cases where an information is drawn, no particular form is necessary if it clearly apprises the defendant of the charge against him.*? And it has been held that the question as to whether or not the defendant was suf- ficiently informed of the charge against him is to be determined by an examination of the entire record.® But 25—Kirk v. U. S., 192 Fed. 273.- 289; 32 L. Ed. 405. See also Brown 26-—Ex parte Buskirk, 72 Fed. 14. v. U. S., 196 Fed. 351. 27—-Ex parte McLeod, 120 Fed. 31—Aaron v. U. 8., 155 Fed. 833. 130. 32—Schwartz v. U. 8., 217 Fed. 28—U. 8. v. Appel, 211 Fed. 495. 866, citing Gompers v. Bucks Stove 29—-Ex parte Terry, 128 U. 8S. and Range Co., 221 U.S. 418; 55 L. 289; 32 L. Ed. 405. Ed. 797.' Aaron v. U.S, 155 Fed. 30—-Ex parte Terry, 128 U. 8S. 833, 266 FEDERAL CRIMINAL PROCEDURE [§ 443 a petition charging criminal contempt should be entitled so as to indicate its real nature as a criminal charge seek- ing punishment, as distinguished from a suit at law seeking merely relief for plaintiff against defendant.®? In contempt the court is not bound to serve interroga- tories upon the defendant to afford him an opportunity of purging himself of contempt but may adopt such method of determining the question as seems proper having due regard to the essential rules that prevail in the trial of contempt cases.°4 A jury trial is not necessary in a contempt case,®* as a contempt proceeding at common law was not subject to trial by jury.?* Where a procedure applied to the defendant would have applied to any other person under similar circum- stances and conditions under the law, the equal protec- tion of the laws is not denied.*7 § 444. Manner of presenting defense— Where contempt consists of personal presence and overt acts, disavowal of intent under oath does not purge of contempt.?® Like- wise, where a judgment declares that the defendant has committed several overt acts of contempt in the court’s presence, his sworn answer denying such acts and alleging his good intention at the time cannot be allowed to impeach the allegations of the judgment.*® A witness cannot defend a contempt charge by con- tending that the questions which he refused to answer were immaterial; *° nor by showing the immateriality of 33—Gompers v. Bucks Stove & Range Co., 221 U. 8, 418; 55 L. Ed. 797. 34—In re Savin, 131 U. 8. 267; 33 L. Ed. 150. 85—Tinsley v. Anderson, 171 U. 8. 101; 43 L. Ed. 91. 36—Eilenbecker v. Plymouth County, 134 U. 8. 31; 33 L. Ed. 801. 37—Tinsley v. Anderson, 171 U. S. 101; 43 L. Ed. 91. Lowe v. Kan- sas, 163 U. 8. 81; 41 L. Ed. 78. 38—U. S. v. Shipp, 203 U. S. 563; 51 L. Ed. 319. Kirk v. U. 8, 192 Fed. 273. ; 39—In re Terry, 128 U. S. 289; 32 L. Ed. 405. 40—Nelson v. U. S., 201 U. 8. 92; 50 L. Ed. 673. § 445] HABEAS CORPUS AND CONTEMPT 267 the evidence sought to be elicited or. the insufficiency of the pleadings.*! However, in criminal contempt cases the respondent is clothed with all the presumptions that obtain in favor of a defendant in other criminal cases such as the presump- tion of innocence, necessity for proof of guilt beyond a reasonable doubt, and immunity from self-crimination.*? And so the court must be satisfied of the guilt of defend- ant beyond a reasonable doubt, but such decision when based on evidence of guilt, is not reviewable.*® § 445. Form of sentence.——The character and purpose of the punishments distinguish civil and criminal con- tempts; when civil the punishment is remedial and for the benefit. of the complainant in the contempt proceed- ings; when criminal, the sentence is punitive, to vindicate the authority of the court. Imprisonment in civil pro- ceedings must be coercive and can last only until the defendant performs the act required by the court. In criminal contempt cases, imprisonment is fixed and certain in duration as a punishment for completed dis- obedience of court orders or other past wrongdoing.*4 A sentence to imprisonment for a fixed and absolute term can be justified only by showing that it was ren- dered in a proceeding for criminal contempt.*® A contempt proceeding though entitled in a civil case, if criminal in fact, may properly result in the imposition of a sentence for a fixed term of imprisonment.** Where the defendant is ordered committed until he testifies before a certain grand jury, his term of imprison- 41—Fairfield v. U. 8., 146 Fed. 44—Gompers v. Bucks Stove & 508. Range Co., 221 U. S. 418; 55 L. Ed. 42—Gompers v. Bucks Stove & 797. In re Kahn, 204 Fed. 581. Range Co., 221 U.S. 418; 55 L. Ed. 45—In re Kahn, 204 Fed. 581. 797. Jones v. U. S., 209 Fed. 585. 46—In re Kaplan Brothers, 213 43—Schwartz v. U. S., 217 Fed. Fed. 753. 866, citing Bessette v. Conkey Co., 194 U. S. 338; 48 L, Ed. 997. 268 FEDERAL CRIMINAL PROCEDURE [§ 445 ment expires with the discharge of the grand jury as then it is impossible to appear before it. The defendant, how- ever, may still be punished for his past contempt in refusing to appear as a witness when subpoenaed.‘? A decree reciting that it is founded upon ‘‘legal evi- dence produced at the trial rejecting all improper and irrelevant portions thereof,’’ is insufficient, as the finding should indicate specifically the evidence rejected as hear- say, where the record is so composed of competent and incompetent matters that the upper court cannot say what evidence was considered by the trial court in pre- paring its decree.*® A general sentence cannot be imposed for separate acts of contempt.*® § 446. Effect of contempt proceedings on other prose- cutions.—Proceedings in contempt are not barred by other remedies afforded by law, either civil or criminal.®° Punishment of an act of contempt which is also a viola- tion of a federal statute does not bar a prosecution for such offense under the statute.® 47—U. &. v. Collins, 146 Fed. 553. 50—In re Chapman, 166 U. 8. 48—Oates v. U. S., 223 Fed. 1013. 661; 41 L. Ed. 1154. 49—Oates v. U. S., 223 Fed. 1013, 51—U. 8. v. Colo., 216 Fed. 654. citing Gompers v. Bucks Stove & Range Co., 221 U. 8. 418; 55 L. Ed. 797. § 447. § 448. § 449. § 450. § 451. § 452. § 453. § 454. § 455. § 456. § 457. § 458. § 459. § 460. § 461. § 462. § 463. § 464. CHAPTER XVIII FORMS AFFIDAVITS Affidavit on Actual Knowledge. Affidavit on Information and Belief. Affidavit Partly on Actual Knowledge and Partly on Information and Belief. SEARCHES AND SEIZURES Affidavit for Search Warrant to Search Premises Being Used to Commit a Fraud Upon the Revenue. Search Warrant to Search Premises Being Used to Com- mit a Fraud Upon the Revenue. Affidavit for Search Warrant to Search for Merchandise Imported Without Payment of Duty. Search Warrant to Search for Merchandise Imported Without Payment of Duty. Motion to Quash Subpoena as Attempting an Unrea- sonable Search and Seizure. , Petition for, Return*of Property Unlawfully Seized to Be Used as Evidence Against. Owner in a Criminal Case. Motion to Impound Evidence Before Trial. Motion to Vacate Order Impounding Documentary Evi- dence. ARREST, BAIL AND REMOVAL OF PERSONS Complaint Before United States Commissioner. United States Commissioner’s Warrant of Arrest. United States Commissioner’s Subpoena. Recognizance Before Commissioner. Bail Bond Pending Writ of Error. Scire Facias on Bail Bond. Petition for Remission of Bail Bond Forfeiture. 269 270 § 465. § 466. § 467. § 468. § 469. § 470. § 471. § 472. § 473. § 474. § 475. § 476. FEDERAL CRIMINAL PROCEDURE INTERNATIONAL EXTRADITION Requisition on Foreign Government for Surrender of Fugitive from Justice. Warrant of Arrest of Fugitive from Justice of a For- eign Government. INTERSTATE EXTRADITION Extradition Requisition by Governor of One State to Governor of Another. Warrant of Arrest of Fugitive from Justice of a State. REMOVAL OF CAUSES Petition of United States Revenue Officer for the Re- moval to a Federal Court of an Indictment Against Him in a State Court. Order for Certiorari to Remove Cause. Writ of Certiorari to Remove Cause. INFORMATION Information by United States Attorney. Affidavit to Information. ' PLEAS AND MOTIONS BEFORE TRIAL Affidavit in Support of Application for Continuance Because of Absence of Witness. Demurrer on Various Grounds: . Uncertainty by Reliance on Inference. . Use of Legal Conclusions. . Uncertainty by Use of Disjunctive. . Uncertainty in Abbreviations. . Failure to Allege Guilty Knowledge. . Uncertainty through Failure to Describe Specific- ally. . Failure to Negative Statutory Exception. . Duplicity by Charging Two Distinct Offenses in One Count. ‘ Repugnancy by Charging a Condition Impossible in Fact. j. Failure to Allege Statutory Intent. k. Uncertainty Through Lack of Proper Description. 1. Uncertainty in Failing to Allege a Material Name. m. Failure Sufficiently to Describe an Obscene Paper. Motion to Quash Indictment on Various Grounds: a. Disqualification of Grand Jurors. hmoalanwp , poy bate § 477. § 478. § 479. § 480. § 481. § 482. § 483. § 484. § 485, § 486. § 487. § 488. § 489. § 490. § 491. § 492. § 493, § 494. § 495. § 496. § 497. § 498. § 499. FORMS 271 S ‘Exclusion of Persons from Grand Jury Service Because of Race or Color. , . Incompetency of Evidence Before Grand Jury. Improper Influence by United States Attorney. . Improper Return of Indictment. . Presence of Unauthorized Person in Grand Jury Room. g. Amending the Indictment, h. Improper Consolidation or Joinder of Charges. Motion for Bill of Particulars. Motion to Quash Information for Lack of Affidavit. Motion to Quash Information for Insufficiency of Affidavit. Plea of Misnomer. Plea of Nolo Contendere. Plea of Former Jeopardy. Plea of Former Acquittal. Plea of Former Conviction. | Petition to Obtain Attendance of Defendant’s Witnesses at Government Expense. Petition for Change of Venue from One Division of a _ District to Another. Petition for Designation of Different Judge for Trial Because of Prejudice of Presiding Judge. ‘Petition for Designation of Different Judge for Trial Because Presiding Judge Has Been Counsel for a Party. ° tho Qo SENTENCE Sentence Imposing Imprisonment. Sentence Imposing Fine. Application for Discharge of Indigent Convict Confined for Non-Payment of Fine or Costs. MOTION FOR NEW TRIAL AND IN ARREST OF JUDGMENT Motion for New Trial. Motion in Arrest of Judgment. WRIT OF ERROR Petition for Writ of Error. Assignment of Errors. Writ of Error. Citation to Writ of Error. Acceptance and Affidavit of Service of Citation. Bill of Exceptions. - , 272 FEDERAL CRIMINAL PROCEDURE [§ 447 § 500. Petition for Certiorari for Diminution of Record. § 501. Motion for Certiorari in Supreme Court. § 502. Petition for Certiorari in Supreme Court. § 508. Affidavit to Petition for Certiorari in Supreme Court. HABEAS CORPUS § 504. Petition for Habeas Corpus on Ground that Excessive Bail Is Required. § 505. Petition for Habeas Corpus in Extradition Case on Ground that No Crime Charged Under Laws of De- manding State. § 506. Order Granting Writ of Habeas Corpus. § 507. Writ of Habeas Corpus. _ § 508. Return to Writ of Habeas Corpus. § 509. Traverse to Return in Habeas Corpus. §510. Order of Discharge in Habeas Corpus. § 511. Order Remanding Petitioner in Habeas Corpus. §512. Attachment for Disobedience of Writ of Habeas Corpus. CONTEMPT § 518. Information for Contemptuous Publication. § 514. Order to Show Cause Why Respondent Should Not Be Punished for Contempt. §515. Attachment in Contempt. § 516. Order Punishing Contempt Committed in Court’s Pres- ence. §517. Answer of Alleged Contemnor. § 447. Affidavit on actual knowledge. - State of —————__—_ County of eo , being first duly sworn, on oath says that he is the person whose name is subscribed to the fore- going (set forth the name of the pleading); that he is familiar with the contents of said (name of pleading); and that the matters and things therein contained are true in substance and in fact. Subscribed and sworn to before me this ———— day of —_—_—— A. D. —. (Seal) Notary Public. § 449] FORMS 273 § 448. Affidavit on information and belief. State of ——————— a County of ‘ , being first duly sworn, on oath says that he is the person whose name is subscribed to the fore- going (set forth the name of the pleading); that he is familiar with the contents of said (name of pleading); and that the matters and things therein contained are true, to the best of his knowledge, information and belief. Subscribed and sworn to before me this ————— day of ——_—_—- A, D. ——. (Seal) Notary Public. § 449, Affidavit partly on actual knowledge and partly on information and belief. State of —————_——- a5 County of ; , being first duly sworn, on oath says that he is the person whose name is subscribed to the fore- going (set forth the name of the pleading); that he is familiar with the contents of said (name of pleading) ; é and that the matters and things therein contained are true in substance and in fact, except such matters and things as are set forth on information and belief, and that as to such matters and things affiant verily believes ‘them to be true. i Subscribed and sworn to before me this ——_—— day of —_—_—_ A. D. —. (Seal) Notary Public. 274 FEDERAL CRIMINAL PROCEDURE [§ 450 § 450. Affidavit for search warrant to search premises being used to commit a fraud upon the revenue. District of. Division f* Be it remembered, that on this day, before me; the undersigned, a United States Commissioner for the District of —————_, ———— Division, came A. B., a Deputy Collector of Intettial Revenue of the said United States, who, being by me duly sworn, upon his oath deposes and says that on, to wit, the day of —_——,, in the year ————., there was found in and upon the premises and puilding hereinafter described, a large amount, to wit, ————— lbs., of adul- terated butter in that the same contained an abnormal quantity of moisture, to wit, —————- per centum of moisture, and further that at the present time in said premises and building is stored a large quantity of but- ter, which said A. B. verily believes to be adulterated in that the same contains an abnormal quantity of moisture, to wit, per centum of moisture, and that said adulterated butter is being sold by the owners thereof, without the payment to the United States of the tax due from such dealers, and without the payment of the tax due upon said adulterated butter, and that said A. B. has good reason to believe, and does verily believe, that a fraud upon the revenue of the United States has been and is being committed upon and by the use of certain premises within the district aforesaid, to wit, the premises and building situated upon the —————— corner of and ————— streets in the city of ————, state of —————, said premises and building being occupied by the ————— Company, a corporation organ- ized and existing under and by virtue of the laws of the State of —__—, that is to say, that said premises and said building have been and are being used for the 8 451] FORMS 275 storage in and delivery from said premises and building of large quantities of adulterated butter, to wit, butter in the manufacture and manipulation of which a certain process and certain materials are and have been used with the intent and effect of causing the absorption of abnormal quantities, to wit, ————— per centum or more of water, milk and cream, and that said adulterated but- ter has been and is being stored in and has been and is being delivered from said premises and building by wholesale dealers in adulterated butter, for the purpose of and with the effect of evading the payment of the tax due to the said United States by law from each of said wholesale dealers in adulterated butter, to wit, the tax of ————— dollars per annum, and also for the purpose of and with the effect of evading the payment of the tax due by law to the said United States of ———— cents per pound upon said adulterated butter. Sworn to before me and subscribed in my presence, this —-——— day of ————— A.. D. ——. (Seal) United States Commissioner. § 451. Search warrant to search premises being used to commit a fraud upon the revenue. The President of the United States of America, to A. B., Deputy Collector of Internal Revenue, Greeting: Whereas, complaint on oath, and in writing, has this day been made before me, C. D., a United States Commis- sioner for the said District, by the said A. B., alleging that he has reason to believe and does believe that a fraud upon the revenue of the United States is being committed upon and by the use of certain premises within the District aforesaid, to wit, the premises and building Byrne’s Crim. Proe.—20 276 FEDERAL CRIMINAL PROCEDURE [§ 451 situated upon the —————— corner of —————— and Streets, in the city of ——————, State of ———,, said building being occupied by the E. F. Com- pany, a corporation organized and existing under and by virtue of the laws of the State of ————, that is to say, that said premises and said building have been, and are, being used for the storage in and delivery from said premises and building of large quantities of adulterated butter, to wit, butter in the manufacture and manipula-' tion of which a certain process and certain materials are and have been used with the intent and effect of causing the absorption of abnormal quantities of water, milk and cream, and that said adulterated butter has been and is being stored in, and has been and is being delivered from, said premises and building, by wholesale dealers in adul- terated butter, for the purpose of and with the effect of evading the payment of the tax due to the said United States by law from each of said wholesale dealers in adulterated butter, to wit, the tax of ————— dollars per annum, and also for the purpose of and with the effect of evading the payment of the tax by law due to the said United States, to wit, the tax of ————— cents per pound upon said adulterated butter. You are therefore hereby authorized and empowered to enter said premises and building in the daytime, with the necessary and proper assistance, and there diligently to investigate and search into and concerning said fraud, and to report and act concerning the same as required by law. And hereof make due return without delay. Witness the hand and seal of the said Commissioner, at , this day of A. D. —, and of the independence of the said United States the year. C. D., i . (Seal) United States Commissioner § 452] FORMS 277 § 452. Affidavit before United States commissioner for search warrant under Revised Statutes 3066 to search for merchandise imported without payment of duty. —District of. Division. [os On this day of , A. D., , before me A. B., a commissioner of the United States in and for the District aforesaid, comes C. D., and being duly sworn upon his oath says that, on to wit, the day of A. D. ———— one E. F. did import and bring into the said United States from Canada certain mer- chandise, to wit, ——————;; that the said E. F. upon so importing and bringing said merchandise into the said United States as aforesaid, paid as duty thereon the sum of ————— dollars; that the said affiant has'seen an invoice of the said merchandise prepared by one G. H., being the person from whom the said E. F. bought said merchandise in Canada; that the merchandise described in said invoice upon importation into the said United States from Canada was and is subject by law to duty in the sum of ———————_———- dollars; that said affiant is informed and verily believes that the said mer- chandise mentioned in said invoice is the same merchan- dise imported into the said United States from Canada by the said E. F. as hereinabove set forth; and that there- fore said merchandise has been imported contrary to law in that the full and lawful. amount of duty payable thereon was not paid upon the importation of said mer- chandise into said United States as aforesaid; that this affiant is informed and verily believes that said merchan- dise is now being concealed in and upon certain premises in the city of ——————,, state of ———_———, in said division and district, to wit the premises ‘known as ———_—; Wherefore this affiant, who is a customs officer of the anid United States, to wit, a prays a warrant to enter said premises and there to seavoh 278 FEDERAL CRIMINAL PROCEDURE [§ 452 © for said merchandise, pursuant to statute in such case made and provided. C. D. Subscribed and sworn to before me this —__—— day of —_—_—- A. D. —_. ( Seal) United States ‘Commissioner. § 453. Search warrant to search for merchandise im- ported without payment of full duty. The President of the United States of America to C. D., Greeting: Whereas, you have this day made application in writ- ing on oath before me, the undersigned, a Commissioner of the United States for the ———— District of ———_, praying the issuance of a warrant to enter and search certain premises known as —-———— in the city of , State of ————, in said district, for certain merchandise, to wit ——————- concealed therein; and whereas, I the said A. B., United States Commissioner as aforesaid, having read the said application under oath (and having heard the evidence of the witnesses, K. L. and M. N. in the premises) do hereby find and determine that there is probable cause to believe that said mer- chandise has been imported contrary to law as set forth in said application and that the said merchandise is now being concealed in said premises; Now, therefore, pursuant to Section 3066 of the Revised Statutes of the United States, you are hereby authorized and empowered to enter the premises aforesaid in the daytime and there to search for the said merchandise and if any such shall be found to seize and secure the same for trial; and hereof make due return without delay. Witness the hand and seal of the said Commissioner at the day of ——_—_—, A. D.—-, § 454] FORMS , 279 and of the independence of the said United States the year. C. D., (Seal) United States Commissioner. § 454. Motion to quash subpoena as attempting an un- reasonable search and seizure. (Title of Court.) (Title of Cause.) —_——— Term. Now comes A. B., being the person named in a certain subpoena duces tecwm issued from this court on the ————. day of ———— A. D. , commanding the said. A. B. to appear and testify before the grand jurors of and for said Court now sitting, and to produce before said grand jurors certain documents, books, papers and other documentary evidence as follows, to wit (describe documents called for by the subpoena). And the said A. B. moves this Honorable Court that the said subpoena be quashed and said A. B. be released from the necessity for compliance therewith, for the reason that said sub- poena requires the production before said grand jury of all the books, documents and records used in the three years last past by the said A. B. in the conduct of his business and of all the books, documents and records now necessarily being used by the said A. B. in the conduct of his business, and that if the said A. B. is forced to comply with the requirements of said subpoena by pro- ducing said books, documents and records named therein, said A. B. will be unable to continue conducting his said business and will be obliged to cease so to do so long as said books, documents'and records shall remain in the custody of said grand jurors; wherefore your petitioner says that said subpoena duces tecwm is an attempt to accomplish an unreasonable search and seizure of the property of said petitioner contrary to the Fourth 280 FEDERAL CRIMINAL PROCEDURE [§ 454 . Amendment to the Constitution of the United States, and that said subpoena ought to be quashed. , A. B, C. D., Attorney for A. B. (Add verification as in Sec. 447 supra.) § 455. Petition for return of property unlawfully seized to be used as evidence against owner in criminal case. (Title of Court.) (Title of Cause.) —— Term. Now comes A. B., the defendant in said cause and states that he is a citizen of Missouri and a resident of Kansas City, Missouri, and that he resides in, owns and occupies a home at 1834 Penn Street, in said city; that on the 21st day of December, 1911, while plaintiff was absent at his daily vocation, certain officers of the Government whose names are to the defendant unknown,’ unlawfully and without warrant or authority so to do broke open the door to defendant’s said home and seized all of his books, letters, money, papers, notes, evidences of indebtedness, stock certificates, insurance policies, deeds, abstracts and other muniments of title, bonds, candies, clothes and other property in said home, and this in violation of Sections 11 and 23 of the Constitution of Missouri and of the 4th and 5th Amendments to the Constitution of the United States. That the District Attorney, Marshal and Clerk of the United States Court for the Western District of Missouri took the above described property so seized into their possession and have failed and refuse to return to defend- ant a portion of same, to wit: One (1) leather grip, value about $7.00; one (1) tin box value about $3.00; one (1) Pettis County, Missouri, bond, value $500.00; three (3) mining stock certificates, which defendant is unable. to more particularly describe; and certain stock certifi- § 456] ' FORMS 281 cates in addition thereto issued by San Domingo Mining Loan and Investment Company; about $75,000.00 in cur- rency; one (1) newspaper published about 1790, an heir- loom; and certain other property which defendant is now noble to describe: _ That said property is being unlawfully and improperly held by said District Attorney, Marshal and Clerk in violation of defendant’s rights under the Constitution of the United States and of the State of Missouri. That said District Attorney purposes to use said books, letters, papers, certificates of stock, etc., at the trial of the above entitled cause and that by reason thereof and of the facts above set forth defendant’s rights under the amendments aforesaid to the Constitution of Missouri and the United States have been and will be violated unless the Court order the return prayed for: é Wherefore defendant prays that said District Attorney, Marshal and Clerk be notified and that the Court direct and order said District Attorney; Marshal and Clerk to return said property to said defendant. 2 A. B., Defendant. Ce Ds, Attorney for Defendant. (Add verification by defendant as in Sec. 448, supra.) (See Weeks v. U. S., 232 U.S. 383; 58 L. Ed. 652.) § 456. Motion to impound evidence before trial. (Title of Court.) (Title of Cause.) ——Term. Now comes A. B., United States Attorney for the , District of ———————,, and shows this Hon- orable Court that on the ————— day of ————— A. D.. ——, a certain indictment was returned into said court by the grand jury of and for said court, that in and by said indictment one C. D. and one E. F., defendants c 282 FEDERAL CRIMINAL PROCEDURE [§ 456 therein were charged with violation of (name law or section violated) by (give short description of the of- fense) ; that certain documentary evidence has come into the possession of said United States Attorney consisting of (describe the documentary evidence) ; that said docu- mentary evidence will be material and necessary evidence in support of said indictment on the trial thereof, as will by inspection of said documentary evidence more clearly appear to the Court; that said United States Attorney has reason to believe and does believe that if said documen- tary evidence is allowed to return to the possession of persons other than the officers of the United States, said documentary evidence will be destroyed or removed to unknown places and rendered unavailable for use as evi- dence on the trial of said indictment: Wherefore your petitioner prays that this Honorable Court will enter its order that the said documentary evidence be delivered to the custody of the clerk of this court to be retained and safely kept by said clerk to be produced for use as evi- dence in support of said indictment on the trial thereof. A. B., United States Attorney. (Add verification as in Sec. 449, supra.) § 457. Motion to vacate order impounding documentary evidence. (Title of Court.) (Title of Cause.) ———— Term. Now comes A. B., petitioner herein, and shows this Honorable Court that on the ————— day of ———— A. D. ——, one C. D., United States Attorney for the District of —_————,, filed his petition in. said court setting forth that on the ————— day of A. D. , a certain indictment was returned by the grand jury for the United States into said court, ‘charging a violation on the part of one H. F. and one ‘ § 457] FORMS 283 G. H. of (name statute or section violated) by (describe the offense briefly); and that said petition further set forth and declared that said United States Attorney had received certain documentary evidence, to wit (describe the documentary evidence) which would be material and necessary evidence on the part of the United States on the trial thereof, and that in accordance with the prayer of said petition an order was entered by this court on the ————— day of ————— A. D. ——,, directing the clerk of said court to take into his custody and safely keep and retain for use as evidence upon the trial of said indictment said documentary evidence. Your petitioner further states that he is the owner of the said documentary evidence, that the documents and records comprising said evidence are necessary and essential to the conduct of the business of the said petitioner, and that without them he is unable to conduct and carry on his said business; that the said order of said court was in violation of the Fourth Amendment to the Constitution of the United States, in that the same constitutes an unreasonable search and seizure of the property of the said petitioner and prevents him from conducting and carrying on his business as aforesaid. Petitioner further states that said order of said court is also in violation of the Fifth Amendment to the Constitution of the United States in that said order deprives petitioner of his prop- erty without due process of law, without any charges having been made or proof offered that said petitioner has in any way forfeited his right to the ownership and possession of the said property, and without any com- pensation or remuneration having been paid or offered to the said petitioner in return for the deprivation of the said property. Your petitioner further states that if said documents and records are restored to his possession he will at all times hold himself ready to and will pro- duce them before this Honorable Court in obedience to a subpoena duces tecum therefor issued by said court. 284 FEDERAL CRIMINAL PROCEDURE [§ 457 Wherefore your petitioner prays that the Court will vacate its order of the ————— day of ————— A. D. ——, and will direct the clerk of the Court to return and deliver said documents and records to your petitioner instanter. A. B. (Add verification as in Sec. 448, supra.) § 458. Complaint before United States Commissioner. District of ————— ea Division. a On this ————— day of A. D. sl , in the ————\, Division of the ————,, District of , before A. B., Commissioner of the United States for the said district, comes C. D. of. the city of , and upon his oath complains and says that EK. F., late of the said division and district, on to wit, the ————— day of —————A. D. , at ——__—_, in said division and district, unlawfully, feloniously and knowingly did falsely make and forge a large number, to wit, ten coins, each in resemblance and similitude of the silver coin which had theretofore been coined at the mints of the said United States, called a dollar; contrary to the form of the statute of the said United States in such case made and provided. Wherefore this complainant prays that the said H. F. may be apprehended and further dealt with according to law. C. D. Subscribed and sworn to before me by the said C. D. this —-——— day of —__—— A. D. ——. A.B., *(Seal) Commissioner. § 459. United States Commissioner’s' warrant of arrest. The President of the United States of America, to the Marshal of the ————— district of ————,, Greeting: § 460] FORMS 285 Whereas, complaint in writing on oath, has been made to the undersigned, A. B., a Commissioner for the United States for the said district, charging that on, to wit, the ———— day of A. D. , at , in said district, one C. D. did violate the laws of the said United States, to wit (name the statute or section violated): Now, therefore you are hereby commanded that you take the said C. D. if he be found within said district, and him safely keep, so that you have his body forthwith before the undersigned Commissioner at his office in said: dis- trict, in order that the said C. D. may be dealt with ac- cording to law. And have you then and there this writ with a return of your doings thereon. Witness the hand and seal of the said Commissioner, at ———— aforesaid, this ——_—— day of A. D. ——,, and of the independence of the said United States the year. A. B., (Seal) Commissioner. § 460. United States Commissioner’s subpoena. The President of the United States of America, to the Marshal of the —————— District of ——__—_,, Greet- ing: We command you, that you summon A. B., if he be found in said district, to be and appear before the under- signed, C. D., a Commissioner for the United States for said district, at his office in the city of —————_,, in said district, to testify for the —————— in the matter of against ——————.. And have you then and there this writ, with a return of you%floings hereon. Witness the hand and seal of the said Commissioner, at ——————-_ aforesaid, this —-——— day of A. D. ——, and of the independence of the said United States the year. C. D., (Seal) . United States Commissioner. 286 FEDERAL CRIMINAL PROCEDURE [§ 461 § 461. Recognizance before United States Commis- sioner, District of ————] Division. ‘a We, A. B., as principal, and C. D., as surety, jointly and severally acknowledge ourselves to be indebted unto the United States of America, in the sum of ———_—— dollars, to be levied of our goods and chattels, lands and tene- ments, upon this condition: That if the said A. B. shall personally be and appear before the District Court of the United States for the ————— District of ————— on the first day of the ————— term thereof, to be holden at the court house of the said United States, in the city of —_—_——., in said district, on the ————— day of A, D, , and from day to day thereafter during that and subsequent terms, then and there to answer to such matters and things as shall be objected against him on behalf of the said United States, for (state the nature of the charge), and shall abide the order and judgment of said court in that behalf, and not depart the said court without leave thereof, then this recogniz- ance to be void; otherwise to remain in full force and virtue. A. B. (Seal) C. D. (Seal) Signed, sealed and acknowledged before me, this ——— day of —_——,, A. D. ——. (Seal) United States Commissioner. § 462. Bail bond pending writ of error. ————District of ———— as —_—_—____—_Division. ; We, A. B., as principal, and C. D. and E. F., as sureties, jointly and severally acknowledge ourselves indebted to 8 463) - FORMS 287 the United States of America in the sum of dollars, to be levied of our goods and chattels, lands and tenements, upon this condition: Whereas, the said A. B. has sued out a writ of error from the judgment of the District Court of the United States for the —————— District of —-————, in case No. ————— in said district court wherein the said United States of America is plaintiff and the said A. B. is defendant, for a review of the said judgment in the United States Circuit Court of Appeals for the ————— Circuit. Now, therefore, if the said A. B. shall personally be and appear before the said District Court on the first day of the next regular term thereof, and from day to day thereafter, during said term and subsequent terms, until the determination of said writ of error, and shall abide by and perform any order or judgment which may be rendered therein in said case, and shall not depart from said district court without leave thereof, then this obliga- tion to be void; otherwise to remain in full force and ‘virtue. Witness our hands and seals this ————— day of ——_—— A. D. ——. A. B. (Seal) C. D. (Seal) E. F. (Seal) Taken and approved before me this —-——— day of ———— A. D. —. District Judge. § 463. Scire Facias on bail bond. The President of the United States of America to the United States Marshal for the —————— District of , Greeting: Whereas, heretofore, to wit, on the ————— day of —_—_—_—,, A. D. ——,, one A. B. was brought before C. D., 288 FEDERAL CRIMINAL PROCEDURE [s 463 United States Commissioner for the —————— District of —-_———_—, on the charge of (state general nature of the charge), and the said Commissioner having inquired into the truth and probability of said charge by oath of all the witnesses attending, did order and require that said A. B. give bail with good and sufficient surety, in the sum of —-———— dollars for his appearance at the term of the District Court of the United States for the ———— District of ————— on the first day of said term to answer said charge and abide the judgments and orders of said court in that behalf and not to depart said court without leave. Whereupon the said A. B. as principal and one E. F. as surety, on the ————— day of ————— A. D. —.,, came personally before the said C. D., Commissioner as aforesaid, and then and there by their recognizance in writing by them duly signed and sealed, jointly and sev- erally acknowledged themselves to be bound and indebted unto the United States of America in the sum of dollars, to be levied of their respective lands and tene- ments, goods and chattels; yet upon the condition that if the said A. B. should personally be and appear before the said District Court of the said ————— District of ———— on the first day of the ———— term thereof and from day to day thereafter until discharged by the order of said Court, then and there to answer the said United States on said charge and not depart said court without leave thereof, then the said recognizance should become void, otherwise to remain in full force and effect; which said recognizance was then and there taken and approved by the said Commissioner and by him filed in the office of the Clerk of the said District Court and became a matter of record therein, as by the record of said recog- nizance in said court will duly appear. And whereas afterwards, to wit, at the ————— term é § 463] FORMS 289 of said District Court the grand jurors of the United States for the District aforesaid preferred against said A. B. and returned into said District Court on the day of A. D. , a certain indictment charging the said A. B. with (describe the charge in general terms) which said offense in said indictment set forth is the same in said recognizance mentioned. And whereas afterwards, to wit, at the ————— term of said District Court, the said Court being then judicially sitting, the said A. B. was three times solemnly called in open court, yet he came not but made default, and the said E. F. surety was likewise three times solemnly called to bring into the court the body of the said A. B., yet he came not but likewise made default and failed to bring into said court the body of the said A. B. Whereupon it was considered and adjudged by the said court that the said recognizance be taken for and declared forfeited and that a scire facias issue against the said A. B. and the said C. D. These are therefore to command you that you make known to the said A. B. and the said C. D. that they and each of them personally be and appear before the District Court of the United States for the —_—— District of ————,, to be held in and for the District aforesaid on the —-——— day of ——_—— A.D. , at the city of ————_,, then and there to show cause, if any they have, why execution should not issue against them upon their aforesaid recognizance, according to the form, force and effect thereof and of the forfeiture aforesaid, and have you then and there this writ with a return of your doings thereon. Witness, the Honorable ————— Judge of the said Court and the seal thereof this ————— day of ——_— A. D. ——, and of the independence of the United States the year. (Seal) . Clerk. 290 FEDERAL CRIMINAL PROCEDURE [§ 464 § 464. Petition for remission of bail bond forfeiture. — (Title of Court.) (Title of Cause.) ———— Term. To the Honorable ———— J udge of the District Court of the United States for the —— District of ————: Your petitioner, A. B., respectfully shows this Honor- able Court that on the ————— day of ————— A. D. , one C. D. gave bond before this court at the ———— term thereof for his appearance to answer an indictment theretofore returned against him herein, charging him with (state offense in general terms)' and that your petitioner on the day first aforesaid signed said bond as surety for the said C. D. in the behalf aforesaid; that your petitioner is advised, informed and believes that the said C. D. was sick during the said ————— term of this court and was therefore unable and physically incapacitated from appearing and attending at said term of court; that said petitioner a few days prior to said first day of said term of court was advised and informed by the said C. D. that the United States Attorney for the ———— District of ————— had been informed of the illness of the said C. D. and of his inability to attend said term of court and that your petitioner believed that no default would be entered upon said bail bond nor judgment taken against him as surety because of the absence of the said CO. D. from said term of court; that on the ———— day of A. D. ——, a judgment nisi was entered against said. C. D. and A. B., your petitioner herein upon said bail bond in the sum of ————— dollars; that the said OC. D., defendant in said indictment, appeared at the next term of said court, being the ————— term thereof and was tried upon the charge in said indictment and a verdict of not guilty was rendered and said defendant was discharged and allowed to go without day; that your petitioner is advised, informed and believes that after said defendant had been discharged by said court as § 465] FORMS 291 aforesaid, said judgment nisi was called up on motion of the United States Attorney for the said district and final judgment was entered .on the seire facias against said defendant and your petitioner; that your petitioner was never served with notice of said scire facias proceedings prior to final judgment thereon (or if served with notice, petitioner should set forth some sufficient excuse for not responding), said final judgment being entered on the ————— day of —_——_ A. D.—,, and that E. F., the United States Marshal for the ————— District, has informed your petitioner that an execution has been issued upon said judgment and that he, the said’Marshal, has said execution in his hands and is threatening to serve it upon the property of your petitioner. Wherefore your petitioner prays by reason of the premises afore- said that this Honorable Court: enter its order setting ‘aside and vacating said judgment against your petitioner as aforesaid upon said bail bond, and that the amount thereof, to wit, ————— dollars be remitted and your. petitioner in no wise held liable or indebted for the same and that the said writ of execution issued upon said judgment be quashed. A. B. (Add verification as in Sec. 449, supra.) § 465. Requisition on foreign government for surrender of fugitive from justice. The President of the United States of America to the King of ———, Greeting: Whereas, complaint has been made to me by the Gov- ernor of the State of ————, one of the States of the United States, under the treaty existing between the United States of America and his Majesty, the King of ———., concluded and signed at Washington on the ————— day of ———— A.. D. —, duly authenticated before a magistrate of the State of ————— and in con- Byrne’s Crim. Proe.—21 292 FEDERAL CRIMINAL PROCEDURE [§ 465 formity to and in compliance with the laws of the said United States of America, setting forth that one A. B. did on the ——_—— day of ———— A. D.— , at the city of ————, in the State of ————,, commit the crime of ———— by (state the offense briefly) ; and further that the said A. B. did on the ————— day of ———— A. D.. ——, leave the said city of ————— and State of , for the purpose of seeking a refuge or asylum ina foreign country; and that he, the said A. B., fled to the city of , in the said Kingdom of ———_—., and that he is now a fugitive from justice of the State of and the said United States, within the territory of the Kingdom of —————;; and that the crime of which the said A. B. has so as aforesaid been guilty would justify his apprehension and arrest and commitment for trial for such crime as if the same had been committed within the Kingdom of —-———,, and that the said crime is of the class coming under the said treaty stipulations and the Ss Acts of Congress governing proceedings of such nature. And whereas, pursuant to the provisions of the afore- said Acts of Congress, upon the application of the Gov- ernor of the State of —_———, and under the provisions of the treaty aforesaid, for the apprehension and arrest of the said A. B., charged with the crime of ————, as aforesaid, and it appearing to me that such application and affidavit recite facts, said application and affidavit being annexed hereto, which I eertify to be authentic and authenticated in accordance with the laws of the State of ————— and of the United States of America, and it having been satisfactorily shown to me that the said A. B. has fled from the justice of the State of ———— and of the United States of America and that he has taken refuge in the city of ————— and Kingdom of : Now, therefore, by authority vested in me by the Constitution of the United States of America and in pursuance of treaty stipulations and the Acts of Congress aforesaid, I do hereby request that the said A. B., fugitive g466] FORMS 293 from justice, be apprehended and delivered to C. D., who is duly authorized to receive and convey said A. B. to the territory of the United States of America and to the State of —————, there to he dealt with according to law. In testimony whereof I have hereunto set my hand and caused the great seal of the United States of America to be affixed this —_——— day of ————_ A. D. —, and of the independence of the United States of America the ————— year. (Seal) ! By the President, Secretary of State. § 466. Warrant of arrest of fugitive from foreign government. The President of the United States of America to the Marshal of the United States for the ————— District of , or his deputies or either of them, Greeting: Whereas, complaint has been made under the treaty between the United States of America and His Majesty, the King of ————,, concluded and signed at Washing- ton on the ————— day of ————— A. D. ——, on oath before one E. F., one of the Commissioners of the United States for the ————— District of —————, and a Com- missioner duly appointed to act in extradition cases under the laws of the said United States, that one A. B. did on the ————— day of ————— A.. D. —, at the city of ———_—, in the Kingdom of ————, and within the jurisdiction of the said King of —————, commit the crime of (state the crime briefly), and did on the —_—_——— day of ————— A. D.——.,, sail on board the steamship —————,, bound for the port of ——_—, for the purpose of seeking a refuge or asylum in the territory of the United States and that he is now a fugitive from the justice of the King of ————, within the territory of 294 FEDERAL CRIMINAL PROCEDURE [§ 466 the United States, and that the crime of which the said A. B. has so as aforesaid been guilty would justify his apprehension and commitment: for trial for such crime if the same had been committed within the said District of ————., or within the jurisdiction of the District Court of the United States for the said district. And whereas pursuant to the provisions of the Acts of Congress upon the application of C. D. duly accredited to the said United States of America from the said King- dom of ————_, made under the provisions of the said treaty for the arrest of the said A. B., charged with the crime of ————— as aforesaid, a mandate was issued from the Department of State on the ————— day of ——_—_— A. D. ——,, under the seal of the State Depart- ment and signed by the Honorable ———__—, Secretary of State, and directed to the said Commissioner: Now therefore, by virtue of the authority vested in me by the Constitution of the United States, and in pur- suance of treaty stipulations and the Acts of Congress, I command you forthwith to take and arrest the said A. B. and bring him before the said E. F., Commissioner as aforesaid in order that, pursuant to the direction of the said mandate of the Secretary of State, the evidence of criminality of the said A. B. may be heard and considered and if deemed sufficient to maintain the charges, that the same may be certified together with all the proceedings to the Secretary of State, that a writ may issue for the surrender of the said A. B., pursuant to said treaty. In witness whereof I have set my hand and caused the great seal of the United States to be affixed this ———— day of ———— A. D. , and of the independence of the United States the ————— year. (Seal) By the President, Secretary of State. & VV § 468] FORMS 295 § 467. Extradition requisition by governor of one state to governor of another. A. B., Governor of the State of Illinois, to His Excel- lency, the Governor of the State of Indiana: Whereas, it appears by a copy of an indictment which I certify to be authentic and duly authenticated, in ac- cordance with the laws of this state, that C. D. stands charged with the crime of ————, committed in the County of —————,, in this state and it has been répre- sented to me that he has fled from justice in this state and may have taken refuge in the State of Indiana; Now, therefore, pursuant to the provisions of the Constitution and laws of the United States in such case made and pro- vided, I do hereby require that the said C. D. be appre- hended and delivered to E. F., who is authorized to receive and convey him to the State of Illinois, there to be dealt with, according to law. In witness whereof I have hereunto signed my name and affixed the privy seal of the State, at the city of Springfield, this ————— day of ————_ A. D. : A. B. Governor. _ (Seal) ~ By the Governor, G. H. Private Secretary. § 468. Warrant of arrest of fugitive from another state. The People of the State of ———_——, to any Sheriff or peace officer of any county in said state, Greeting: Whereas, it has been represented to me by the Governor of the State of —————,, that one A. B. stands charged with the crime of —-—— committed in the County of , in said State, and that he has fied from justice in that state and has taken refuge in the State of ? ! 296, FEDERAL CRIMINAL PROCEDURE [§ 468 and the said Governor of ————— having, in pursuance of the Constitution and laws of the United States, de- manded of me that I shall cause the said A. B. to be arrested and delivered to C. D., who is duly authorized to receive him into his custody ‘and convey him back to the State of ; And, whereas, the said representation and demand is accompanied by indictment and affidavit, whereby the said A. B. is charged with the said crime and with having fled from said state and taken refuge in this state, which are certified by the Governor of ——————, to be duly authenticated: You are therefore required to arrest and secure the said A. B. wherever he may be found within the state and to deliver him into the custody of the said C. D., to be taken back to the state from which he fled, pursuant to the said requisition; and also to make return to this department within thirty days from the date hereof, of all your proceedings under this writ and of any facts and circumstances relating thereto. Given under my hand and the Privy Seal of the State at the city of —————, this ————— day of A. D. (Seal) Governor. Secretary of State. § 469. Petition of United States revenue officer for the removal to a federal court of an indictment against him in a state court. To the Honorable Judges of the District Court of the United States for the ————— District of ————. The petition of A. B. respectfully shows this Honorable Court that on the ————— day of ——_—— A. D. ——, an ft § 469] FORMS 297 indictment was returned into the ———— Court of the County of ————,, State of ————,, by a grand jury of said court, which said indictment charged your said petitioner with the crime of extortion contrary to the laws of said State of ————, by reason of the collection and receipt on to wit, the ————- day of ———— A. D. ——, by your petitioner from one C. D. of the sum of five hundred dollars; that your petitioner is now and at the time of the said collection and receipt of said sum of money was, —————— of Internal Revenue for the United States, for the —————— Collection District of ; ; that said criminal prosecution commenced by said indictment and now pending in said State Court is a criminal prosecution against your petitioner on account of an act done by him under color of his office aforesaid, that is to say, the collection and receipt by your petitioner as such revenue officer as aforesaid, for and on behalf of the United States, of a certain assess- ment heretofore levied upon said C. D. as a manufacturer of oleomargarine, by the Commissioner of Internal Rev- enue of the said United States. by reason of the unlawful action of the said C. D. in selling and removing for sale and consumption certain oleomargarine upon which the tax is required to be paid by United States internal rev- enue stamps, without the use of such stamps. _ Wherefore your petitioner prays that the said suit may be removed from the State Court aforesaid to this court and that a writ of certiorari issue for that purpose, pur- suant to the statute of the said United States in such case made and provided. : A. B. State of ———————_ County of }ss, A. B. being duly sworn on oath says that he is the petitioner whose name is subscribed to the foregoing 298 FEDERAL CRIMINAL PROCEDURE [§ 469 petition, that he has read said petition and that the same is true in substance and in fact. A. B. Subscribed and sworn to before me this ————— day of ——— A. D, ——. E. F. Notary Public. I, G. H., an attorney at law, do certify that as attorney for the petitioner above named I have examined the pro- ceedings against him in the foregoing petition mentioned and have carefully inquired into the matters set forth in said petition, and that I believe the same to be true. G. H. _ (Note: If the suit in the State Court has resulted in ‘the service of a capias, the petition should pray for the issuance of a writ of habeas corpus cum causa.) § 470. Order for certiorari to remove cause. Upon motion of G. H., attorney for A. B., and on filing the petition of the said A. B., praying for the removal to this court from the ————— Court of the County of , State of ——_—, of the criminal prosecution against the said A. B. in said court, entitled (give title and number of case), and for the issuance of a writ of certiorari for that purpose, pursuant to Section 33 of the Judicial Code of the United States, and the Court having read said petition, it is ordered that a writ of cer- tiorari issue herein directed to the said court requiring said court to transmit to this court within ————— days the record and proceedings in said case. Judge. § 471. Writ of certiorari to remove cause. 3 (Title of Court.) To the Honorable Judges of the —————Court of the County of ————, State of ————, Greeting: Being informed that there is now pending before you a suit in which the State of ———— is plaintiff and one § 472] FORMS 299 A. B., is defendant, which said suit is a criminal prosecu- tion against the said A. B. for and on account of certain alleged acts of the said A. B. while the said A. B. was in the discharge of his official duty as a revenue officer of the said United States, and under the revenue laws of the said United States; and which said suit has not yet been heard and determined, Now, therefore, we being willing that sid case and the record and proceedings therein should be certified by said —————Court of the County of ————,, State of , and removed into our District Court for the United States for the —————District of —————, do hereby command you that you send, without delay and within days, to the said District Court of the United States, the record and proceedings in said case, so that the said District Court of the United States may act thereon as of right and according to the laws and customs of the said United States, should be done. Witness the Honorable ————,, judge of said District Court of the United States, this ————— day of ————_ A. D. , and of the independence of the said United States the year. (Seal) Clerk. § 472. Information by United States attorney. (Title of Court.) Term. District of ———— } ae ss. Division. Be it remembered that E. F., United States Attorney for the ————— District of —————, who for the said United States in this behalf prosecutes, comes into court here on this ——-—— day of ——_—— A. D., ——, in the term thereof, and for the said. United States gives the Court to understand and be informed that one - 0. D., late of the city of ————, on‘to wit the ———— 300. FEDERAL CRIMINAL PROCEDURE [§ 472 day of ———— A. D., ——, at ——_——, in said division and district, did unlawfully (here describe the offense as in an indictment); against the peace and dignity of the said United States and contrary to the form of the statute of the same in such case made and provided. Whereupon the said Attorney for the United States, who prosecutes as aforesaid for the said United States, prays the consideration of the Court in the premises and that due process of law may be awarded against the said C. D., in this behalf to make him answer the said United States concerning the premises aforesaid. EK. F., United States Attorney. § 473. Affidavit to information. State of at County of : A. B., of the city of —————, being duly sworn, on oath says that he has read the foregoing information charging one C. D. with violation of (give name of statute or section number) by (give short description of the offense). Affiant further says that he has actual personal knowledge ‘as to the truth of the matters and things set forth in said information, and that said infor- mation is true in substance and in fact. A. B. Subscribed and sworn to before me this ————— day of ————_ A. D. ——.. (Seal) Notary Public. § 474, Affidavit in support of application for contin- uance because of absence of witness. State of County of A., being first duly sworn, on oath says that he is the defendant in the above entitled cause, that one B. is a 8s. § 475] FORMS 301 material witness in the said cause, and that the place of residence of the said B. is Affiant further says that the testimony of the said B. is material to the issues in said cause; that the absence of the said B. is not with the consent ‘of the affiant and is not caused by the procurement of said affiant; and that he the said affiant has used due diligence to obtain the attendance of the said B. as a witness at the trial of the above entitled cause (here set forth the issuance of ' subpoena and efforts to serve same, or other facts tending to show due diligence). Affiant further says that he believes that if called as a witness said B. will testify that (set forth the facts as to which the witness will testify). Affiant further says that he cannot with safety proceed to trial without the testimony of the said B. and that to the best of affiant’s knowledge and belief he cannot prove by any other witness the facts to which the said B. if present would testify (or that he cannot prove as completely and satisfactorily by any other witness, the facts to which the said B. if present would testify). Affiant further says that this application for a contin- uance of the said cause is made in order that there may be a fair trial of the issues thereof and that said applica- tion is not made for the purpose of delay. : A. Subscribed and sworn to before me this ————— day of —_—_— A. D., (Seal) Notary Public, § 475. Demurrer—On various grounds. (Title of Court.) (Title of Cause.) —— Term. And the said defendant, A. B., by C. D., his attorney, comes into court and says that fhe said aiichniant and 302 FEDERAL CRIMINAL PROCEDURE [§ 475 the matters and things therein’ set forth are, as therein alleged and set forth, not sufficient in law to compel him the said defendant to answer thereto, for that, (adding the grounds of demurrer specifically); and this he is ready to verify. Wherefore he prays judgment and that he may be dismissed and discharged of the said indict- ment. GRouNDS OF DEMURRER SUGGESTED A. UNCERTAINTY BY RELIANCE ON INFERENCE That the said indictment is defective for uncertainty in this, that although alleging that defendant swore falsely that he had no property on a certain date, said indictment nowhere alleges that said defendant in fact had any property, alleging merely that said defendant well knew that he had property. (See Bartlett v. U. S., 106 Fed. 884.) B, LEGAL CONCLUSIONS That the said indictment charges that defendant imported certain diamonds ‘‘contrary to law,’’ but no- where alleges facts showing wherein said importation was illegal or ‘‘contrary to law’’ and therefore said words are merely a conclusion of the pleader. (See Keck v. U.S8., 172 U. S. 485; 43 L. Ed. 505.) C. UNCERTAINTY BY USE OF DISJUNCTIVE That said indictment charges that the defendant did on a day certain ‘‘steal or embezzle’’ certain moneys, and that therefore the defendant is unable to ascertain whether it is intended to charge him with the offense of larceny or with that of embezzlement. D. UNCERTAINTY IN ABBREVIATIONS That the said indictment charges that the defendant with others named conspired to present to certain officers of the United States, a certain false and fictitious survey of lands described as follows, to wit, ‘‘Tp. 18. B., 1 W.,”’ and that the meaning of the said abbreviations is not a § 475] © FORMS 303 matter of general knowledge and that the meaning of said abbreviations is nowhere alleged or set forth in said indictment. . (See U.S. v. Reichert, 32 Fed. 142.) E, FAILURE TO ALLEGE GUILTY KNOWLEDGE That said indictment charges that defendant uttered counterfeit money, but that said indictment nowhere alleges knowledge on the part of the said defendant of the fact that said money was counterfeit. (See U. 8. v. Carll, 105 U. 8. 611; 26 L. Ed. 1135.) F. UNCERTAINTY THROUGH FAILURE TO DESCRIBE SPECIFICALLY That the: said indictment charges that defendants conspired to injure certain named persons in the enjoy- ‘ment of a right and privilege secured to them by the laws and Constitution of the United States, but that said indictment nowhere names or describes said right in the enjoyment of which said persons were so to be injured as aforesaid. (See McKenna v. U. S., 127 Fed. 88.) . G. FAILURE TO NEGATIVE STATUTORY EXCEPTION That-the said indictment charges that the defendant wilfully misapplied the moneys of the banking associa- tion therein mentioned by paying out the funds of said association in the purchase of its own stock, but that said _ indictment nowhere negatives the exception found in the statute creating the said alleged offense in that said indictment fails to allege that said purchase was not necessary to prevent loss upon a debt previously con- tracted in good faith. (See U.S. v. Britton, 107 U.S. 655; 27 L. Ed. 520.) H. DUPLICITY BY CHARGING TWO DISTINCT OFFENSES IN ONE COUNT That the said indictment charges in a single count that the defendant violated the Act of Congress of March 1, 1895, by introducing into Indian Territory intoxicating \ 304 FEDERAL CRIMINAL PROCEDURE [§ 475 liquors, and also violated the Act of January 30, 1897, by introducing intoxicating liquors into the Indian Country defined in the statute last mentioned; which said acts create offenses punishable differently and necessitating evidence of a different character to justify conviction. (See Ammerman v. U. S., 216 Fed. 326.) I, REPUGNANCY BY CHARGING A CONDITION IMPOSSIBLE IN FACT That the said indictment charges that defendant and others named conspired to conceal bankruptcy assets from the trustee in bankruptcy for the estate to which said assets belonged, and that said indictment shows that the defendant herein was in fact the trustee in bank- ruptecy referred to and therefore said indictment charges a thing impossible in fact, that the defendant conspired to conceal from himself. (See Johnson v. U. S., 158 Fed. 69.) i J. FAILURE TO ALLEGE STATUTORY INTENT That the said indictment charges that the defendant misapplied certain moneys and funds of a certain banking association, but that said indictment fails wholly to allege that said misapplication was with intent to injure and defraud said banking association,—said intent being an element of the offense as defined by statute. (See U. S. v. Britton, 107 U.S. 655; 27 L. Ed. 520.) K. UNCERTAINTY FOR LACK OF PROPER DESCRIPTION That the said indictment is indefinite and uncertain in this, that it charges the defendant with receiving for the purpose of conversion from a person named certain postage stamps the property of the United States, know- ing the same to have been stolen from one or more post offices in the State of Kansas, but that said indictment fails wholly to allege by whom said stamps were stolen, when they were stolen, the names of the post offices from which stolen, and the number and denominations of said stamps; said matters being alleged as unknown to the § 476] FORMS 305 grand jurors, although information as to said matters was in the possession of Government officers before said indictment was returned and could have readily been given to said grand jurors and inserted in said indict- ment. (See Naftzger v. U. S., 200 Fed. 494.) L. UNCERTAINTY IN FAILING TO ALLEGE A MATERIAL NAME That the said indictment charges that said defendant caused and procured the presentation of a certain false affidavit to the Commissioner of Pensions of the United States, but that said indictment fails wholly to set forth or allege the name of the person whom the said defendant so caused and procured to present said affidavit as afore- said. (See Miller v. U. S., 136 Fed. 581.) M. FAILURE TO DESCRIBE SUFFICIENTLY AN OBSCENE PAPER That the said indictment charges the said defend- ‘ant with mailing a certain paper too obscene to be set forth by tenor in said indictment, but that said indict- ment fails wholly to describe said paper by appearance, size, name of writer, color of paper, date, or title page. (See Floren v. U. S., 186 Fed. 961.) A.B., By C. D., Attorney for Defendant. § 476. Motion to quash indictment, on various grounds. (Title of Court.) (Title of Cause.) ———— Term. And the said A. B., defendant in the above entitled cause, comes into court here, and having heard the said ‘indictment read, says that (setting forth reasons for quashal); and this he is ready to verify. Wherefore he prays judgment of the said indictment and that the same may be quashed. 306 FEDERAL CRIMINAL PROCEDURE [$ 476 GROUNDS OF QUASHAL A. DISQUALIFICATION OF GRAND JURORS That E. F., one of the jurors of the grand jury by whom the said indictment was found and returned into open court, was not at the time said juror was drawn for serv- ice on said grand jury and at no time during his service as a juror on said grand jury, an actual resident of the said ————— District of —_——,, but that at all of said times said E. F. was an actual resident of the District of —————, and therefore disqualified to serve on said grand jury. 3 B, EXCLUSION OF PERSONS FROM GRAND JURY BECAUSE OF RACE OR COLOR That the jury commissioners appointed to select the grand jury venire, unlawfully excluded from the list of persons eligible to serve as grand jurors, all colored persons, although otherwise qualified to serve as grand jurors, solely on account of their race and color and that by reason of the said unlawful action of said jury commissioners, said grand jury was composed entirely of persons of the white race, notwithstanding the fact that a majority of the population of said district are colored persons, and that said unlawful exclusion was greatly to the prejudice of defendant herein, who is himself a colored person. (See Rogers v. Alabama, 192 U. S. 226; 48 L. Ed. 417.) C. FOR INCOMPETENCY OF EVIDENCE BEFORE GRAND JURY That the grand jury by which the said indictment was found and returned into open court found and returned said indictment solely upon incompetent testimony, to wit, the testimony of one G. H., then and now wife of the said defendant, and that no other testimony was heard by the said grand jury regarding the alleged guilt of said defendant. § 476] FORMS 307 D. IMPROPER INFLUENCE BY UNITED STATES ATTORNEY That L. M., the United States Attorney, for the District of —_—_——, appeared before the grand jury by whom said indictment was found and returned in open court, and that said United States Attorney urged said grand jury to vote and return said indictment™ and assured said grand jury that the evidence was sufficient to justify the indictment of the said defendant and that the said United States Attorney and not said grand jury would be responsible for said indictment and stated that he wished said indictment voted at once by said grand jury. (See U.S. v. Wells, 163 Fed. 313.) E. BECAUSE OF IMPROPER RETURN OF INDICTMENT That the said, indictment against this defendant was never properly returned into open court by the grand jury and that said indictment was delivered by the fore- man of the grand jury to the clerk of the court at a time when said foreman was unaccompanied by any other members of said grand jury and at a time when said court was not in session. (See Renegar v. U. S., 172 Fed. 646.) F. .PRESENCE OF UNAUTHORIZED PERSON IN GRAND JURY ROOM DURING SESSION OF GRAND JURY That during the sessions of the said grand jury which found and returned said indictment into open court, one N. O., a person not an attorney at law nor a duly ap- , pointed assistant to the United States Attorney nor to the Attorney General of the said United States, remained in the grand jury room and participated in and assisted in ‘the examination of witnesses who testified concerning ‘the charge against said defendant, to wit, witness P. Q. and witness R. S. - (See Heinze v. U.S., 177 Fed. Tm) Byrne’s Crim. Proc.—22 308 FEDERAL CRIMINAL PROCEDURE [§ 476 G. AMENDING THE INDICTMENT That on the ————— day of —_——— A. D., ——,, on motion of the United States Attorney, the Court ordered, Honorable Judge ————— presiding, that the indictment herein be amended by striking out the words ‘‘the Comp- troller of the Treasury and,’’ and by reason of said amendment said indictment is not the same indictment found and returned against said defendant by the grand jury. (See ex p. Bain, 121 U. 8. 1; 30 L. Ed. 849.) H. IMPROPER CONSOLIDATION OR JOINDER OF CHARGES That the said defendants A, B, C, D, E and F, in the first count of this indictment are charged with assault with intent to kill one G on April 18, 1894; in the second count with assault with intent to kill one I on the same day; in the third count with arson of the dwelling house of one J on May 1, 1894; and in the fourth count said A, B, and C, and no others are charged with arson of the dwell- ing house of one K on April 16, 1894; and that said offenses charged in said four counts are separate and dis- tinct from each other, complete in themselves, not parts of the same transaction, independent of each other and not provable by the same evidence, and that the defendants in the fourth count are not the same as those in the other three counts and that consolidation of charges and joinder of defendants is illegal and improper. (See McElroy v. U. S., 164 U.S. 76; 41 L. Ed. 355.) A. B. Defendant. C. D. Attorney for Defendant. (When matters not of record are set forth, add verifica- tion as in Sec. 449 supra.) § 478] FORMS 7. 309 § 477. Motion for bill of particulars. (Title of Court.) (Title of Cause.) ————. Term. And now comes A. B., the defendant herein, by C. D., his attorney, and moves the Court for an order requiring the United States to file a bill of particulars as to the following matters alleged in said indictment, to wit, (for illustration, in a case of stealing from an interstate ship- ment in violation of Act of Congress of February 13, 1913, 1914 Supl. Fed. Stats. Anno. 203). First. The name of the railroad that had possession of the goods alleged to have been stolen, at the time of the alleged larceny. Second. The name and address of the actual owner of said goods. Third. The name and address of the consignee of said goods. Fourth. The name and address of: the consignor of said goods. Fifth. A complete description of all marks, brands, labels, words, letters and figures on the package in which said goods were contained. | : C.D. Attorney for Defendant. § 478. Motion to quash information for lack of affidavit. (Title of Court.) (Title of Cause.) —_——_—— Term. And now comes A. B., the defendant in the above entitled cause, by C. D., his attorney, and having heard the information herein read, says that the said informa- tion is not verified by oath of the person making the charges contained in said information nor of any person claiming to have knowledge of the truth of the charges in said information against said defendant. Wherefore 310 FEDERAL CRIMINAL PROCEDURE [§ 478 he prays judgment of the said information and that the same may be quashed. A. B. By C. D. Attorney for Defendant. § 479. Motion to quash information for insufficiency of affidavit in support thereof. (Title of Court.) (Title of Cause.) ——_—— Term. And now comes A. B., the defendant in the above entitled cause, by C. D., his attorney, and having heard the information herein read, says that the said informa- tion is not sufficiently verified, that is to say, that the affidavit in support of the said information, made and subscribed by one E. F., does not state that the matters and things set forth in said information are true to the knowledge of affiant, but on the contrary alleges that said matters and things are true to the best of affiant’s information and belief. Wherefore said defendant prays judgment of the said information, and that the same may be quashed. A. B. By C. D. Attorney for Defendant. NY § 480: Plea of misnomer. (Title of Court.) (Title of Cause.) ———— Term. . And John Doe (giving true name) who is indicted by the name of Jack Doe, in his own proper person comes into court here and having heard the said indictment read, says that his name is John Doe and from his nativity hereto has been John Doe, without this, that he the said John Doe now is or at any time hitherto has been called or known by the name of Jack Doe, as by said § 482] FORMS 311 indictment is supposed; and this he the said John Doe is ready to verify. Wherefore he prays judgment of the said indictment and that the same may be quashed. John Doe, Defendant. (Add verification as in Sec. 447, supra.) § 481. Plea of nolo contendere. (Title of Court.) (Title of Cause.) ——— Term. And the said A. B., the defendant in the above entitled cause, comes into court here and having heard the said indictment read, says, by permission of the court, that he will not contend with the said United States, and hereof he puts himself upon the clemency of the court. \ A. B. / Defendant. § 482. Plea of former jeopardy. (Title of Court.) (Title of Cause.) ———— Term. Now comes A. B., defendant in the above entitled cause, and having heard the indictment herein read, says that the said United States ought not further to prosecute said indictment against him, the said defendant, because he says that on the —__—— day of ————_ A. D., —_, he, said defendant pleaded not guilty to said indictment ‘ and said United States joined issue on said plea; that afterwards, to wit, on the ————— day of ————— A. D., ——., said issue joined as aforesaid, came on to be tried before the Honorable E. F., a judge of said United States District Court, and a jury duly and regularly summoned, impaneled and sworn to try the said issue, and that said cause was partly heard and evidence given therein on behalf of the said United States during the forenoon of aT 312 FEDERAL CRIMINAL PROCEDURE [§ 482 said last-mentioned day; that about noontime of said day an adjournment was ordered by the court until two o’clock in the afternoon of said day; that at two o’clock of said day the court ordered a further adjournment of . the hearing of said cause until ten o’clock of the morning of the following day, being the ————— day of ————— A..D., ; that at ten o’clock of the morning of said last mentioned day the said judge E. F., stated that he was not feeling well enough to conclude the hearing of said cause and ordered that the said trial jury be dis- charged without rendering a verdict and that the said case be continued for trial to the ————— day of ——— A.D., , being the first day of the next suc- ceeding term of said court, and that said jury was so discharged without rendering a verdict and that said order that said case be so continued as directed by said judge was entered on the records. of said court, to which said proceedings said defendant duly objected and excepted. Defendant further says that in and by said proceedings in said District Court of the United States for the District of —————,, hereinabove set forth, he the said defendant has been placed in jeopardy for the said offense of (naming it) charged in said indictment; and further that the A. B., defendant herein and the A. B., so placed in jeopardy as aforesaid, are one and the same person and not other and different persons, and that the said indictment herein and the said indictment under which said defendant was so placed in jeopardy as afore- said, are one and the same indictment and not other and different indictments. And this he is ready to verify. Wherefore he prays judgment if the said United States ought further to prosecute the said indictment herein against him, the said defendant herein, in respect to the said offense in said indictment mentioned and that he § 483] FORMS 313 the said A. B. may be dismissed and discharged from said indictment in this case. A. B. Defendant. C.D. Attorney for Defendant. (Add verification as in Sec. 447 supra.) (See Ex parte Ulrich, 42 Fed. 587.) § 483. Plea of former acquittal. (Title of Court.) (Title of Cause.) . ———— Term. And the said A. B., the defendant in the above entitled cause, in person and by C. D., his attorney, comes into court here and having heard the indictment read, says that the said United States ought not further to prosecute the said indictment against him in respect to the offense in the said indictment mentioned, because he says that heretofore, to wit, on the —-——— day of ———— A. D. , in the United States District Court for the ————— District of —————,, the grand jurors of the said United States for said District upon their oaths presented and returned in open court an indictment against him, the said A. B., which said indictment is in words and figures as follows, to wit, (set forth indictment, unless in the same court, when judicial notice will be taken of the court records), to which said last mentioned indictment the said A. B. pleaded not guilty and said United States joined issue on said plea and afterwards, to wit, on the ———— day of ———— A. D. , in said District Court for the said ————— District of ————, a jury duly and regularly summoned, impaneled and sworn to try the said issue joined as aforesaid, upon their oath did find and say that the said A. B. was not guilty of the offense of ————— of which the said A. B. was accused in said indictment, as by the record of said court more 314 FEDERAL CRIMINAL PROCEDURE [§ 483 fully appears; which said judgment of acquittal still remains in full force and effect and not reversed and made void. And the said A. B. further says that the said A. B,, defendant herein, and the said A. B., so indicted and acquitted as aforesaid, are one and the same person and not other and different persons and that the (name of offense) of which he the said A. B., was so indicted and acquitted as aforesaid and the said (name of offense) of which he the said A. B. is now herein indicted, are one and the same (name of offense) and not different (name of offense in plural). And this the said A. B. is ready to verify. Wherefore he prays judgment if the said United States ought further to prosecute the said indictment against him the said A. B. in respect to the said offense in said indictment mentioned and that he the said A. B. may be dismissed and discharged from said indictment. A. B. Defendant. C. D. Attorney for Defendant. (Add verification as in Sec. 447, supra.) § 484. Plea of former conviction. (Title of Court.) (Title of Cause.) ———— Term. And the said A. B., the defendant in the above entitled cause, in his own proper person and by C. D., his attorney, comes into court here and having heard the said indict- ment read, says (follow plea of former acquittal down to the description of the verdict); and that on the ———— day of —_——— A. D. ——,, a jury duly and regularly summoned, impaneled and sworn to try the said issue joined as aforesaid, upon their oaths did render a verdict finding said A. B. guilty of the said (name of offense) charged in said indictment, and that a judgment of con- § 485] FORMS 315 viction was duly and regularly entered against, him the said A. B. upon said verdict, in the words and figures following, that is to say (set forth the judgment), and that said judgment still remains in full force and effect and has not been made void or reversed. (If defendant has served all or any part of the sentence, set forth that fact.) Defendant further says that the said A. B. indicted herein and the said A. B. so indicted and con- victed in said United States District Court for the District of —————, are one and the same person and not other and different persons and that the said (name of offense) charged in the indictment herein and the said (name of offense) of which the said A. B. was so indicted and convicted as aforesaid, are one and the same (name of offense) and not other and different (name of offense in plural). And this he is ready to ‘verify. Wherefore he prays jndmndent if the said United States ought further to prosecute the said indictment against him, the said A. B. in respect to the said (name of offense) in the indictment herein charged, and that he the said A. B. may be dismissed and discharged from said indictment herein. A. B. Defendant. C. D. Attorney for Defendant. _ (Add verification as in Sec. 447, supra.) 5; § 485. Petition to obtain attendance of defendant’s wit- nesses at government expense. 6 (Title of Court.) (Title of Cause.) ———— Term. To the Judges of the United States District Court for the ——— District of ————. Your petitioner, A. B., respectfully represents that he is the defendant in the above entitled cause, that there 316 FEDERAL CRIMINAL PROCEDURE [§ 485 are witnesses whose testimony is material to his defense, to wit, one C. D., resident at —-———- in the state of , and one E. F. resident at ————, in the state of —_—_—, that said defendant cannot safely go to trial. without said witnesses and that said defendant expects and believes that he will be able to prove by said wit- nesses that (set forth the facts to which the witnesses will testify); that said witnesses are now in the city of ——— in the state of ————— and within one hundred miles of the city of ————— at which the trial of this defendant is to be held (or, that said witnesses are now in the city of ————— state of —_———, and within the said ————— District of —————); that said defendant A. B., is not possessed of sufficient means and is actually unable to pay the mileage expenses and witness fees of said witnesses; wherefore the defendant prays that the °° court order subpoenas to issue directed to each of said witnesses for their appearance to testify for the defend- ant at the trial of the above entitled cause, and that the costs of process, mileage and witness fees of the said witnesses be ordered paid in the same manner that similar costs, expenses and fees are paid in case of witnesses subpoenaed on behalf of the United States. A. B. (Add verification as in Sec. 449, supra.) § 486. Petition for change of venue from one division, of a district to another. (Title of Court.) (Title of Cause.) ; —_——— Term. To the Judges of the United States District Court for the ———— District of ——_—. Your petitioner, A. B., respectfully represents that he . is the defendant in the above entitled cause; that the indictment in said cause was returned by a grand jury of the Eastern Division of the ————— District of § 487] FORMS 317 into the United States District Court for said division and district, on to wit, the ————— day of ——_—— A. D. ——-, and that the trial of said indictment will be held in the city of —————,, in said division and district, unless otherwise directed by this court. Your petitioner further respectfully represents that (set forth grounds for change of venue; such, for instance, as prejudice against defendant on the part of the inhabitants at the proposed place of trial, or possibly a showing of greater conven- ience and less expense to defendant by a change of venue, might be sufficient basis for the petition). Your petitioner therefore respectfully prays that a change of venue may be granted him in the above entitled cause to the Western Division of said district, in accord- — ance with the provisions of Section 53 of the Judicial Code of the United States. A. B. (Add verification as in Sec. 449, supra.) § 487. Petition for designation of different judge for trial, because of prejudice of presiding judge. (Title of Court.) (Title of Cause.) ———— Term. To the Judges of the United States District Court for the —_——— District of ————. Your petitioner, A. B., respectfully represents that he is the defendant in the above entitled cause; that his Honor, ©. D., Judge of the United States District Court for said district is at present presiding over the trial of criminal cases in said court, and that the trial of the above entitled cause will be held before said Judge C. D., unless otherwise directed by the court, in accordance with - Section 21 of the Judicial Code of the United States. Your petitioner further respectfully represents that he verily believes that his Honor, said Judge OC. D. has a personal bias and prejudice against your petitioner; and 318 FEDERAL CRIMINAL PROCEDURE [§ 487 that the grounds for petitioner’s belief are the following facts (set forth the grounds of the belief). Wherefore your petitioner prays that proper proceed- ings be had, in accordance either with Section 20 or Sec- tion 23 of said Judicial Code of the United States, so that the senior Circuit Judge of the —-——— Circuit, in which said --——— District of ————— is located, shall assign a district judge of said circuit, other than the said Judge C. D., to preside at the trial of the above entitled cause. ‘ A. B. Defendant. (Add verification of petitioner as in Sec. 449, supra.) I, H. F., attorney for defendant A. B. in the above entitled cause, do hereby certify that I have prepared the foregoing petition for change of venue, and that said petition and application for change of venue are made in good faith. E. F. Attorney for Defendant. § 488. Petition for designation of different judge be- cause presiding judge has been counsel for a party. (Title of Court.) (Title of Cause.) pemcaast Terr To the Judges of the District Court of the United States, for the ————— District of ————. Your petitioner, A. B., respectfully represents that he is United States Attorney for the ————— District of , and is attorney for the United States in the above entitled cause; that his Honor, ©. D., Judge of the United States District Court for said district, is at present. presiding over the trial of criminal cases in said court, and that the trial of the above entitled cause will be presided over by the said Judge C. D. unless otherwise § 489] FORMS 319 6 directed in accordance with Section 20 of the Judicial . Code of the United States; that said Judge C. D. has been counsel for the defendant in the above entitled cause, in, to wit, the case of ——_—_— v. —_——.,, in the Court of ————,, being No. —— of the ————— Term of said court. ‘ Your petitioner therefore prays that an order setting forth the aforesaid facts be entered on the records of this ‘court and an authenticated copy thereof be certified to _the senior Circuit Judge of the ————— Circuit, in which said district is located, in order that said Circuit Judge may appoint and designate a district judge of said circuit other than the said Judge C. D. to preside at the trial of the above entitled cause, in accordance with the pro- visions of Section 14 of the Judicial Code of the United States. A. B. United States Attorney. (Add vonteaton® of petitioner as in Sec. 448, supra.) § 489. Sentence imposing imprisonment. Now again comes the United States, by , United States Attorney, comes also the defendant, ————,, in his own proper person and by ————,, his attorney, and neither said defendant nor his counsel having anything further to say why the judgment of the court should not be pronounced against said defendant upon the verdict of guilty heretofore rendered by the jury in the above cause: Now,.therefore it is ordered and adjudged by the court that the said defendant be and he is hereby sentenced to - imprisonment for the term of one year and - - months in the ———— Penitentiary at —————, in the - State of ————, and it is further ordered and adjudged that said defendant pay all the costs of these proceedings. | \ 320 FEDERAL CRIMINAL PROCEDURE [§ 490 § 490. Sentence imposing fine. Now again comes the United States, by ———_, United States Attorney, comes also the defendant , in his own proper person and by ———— his attorney, and neither said defendant nor his counsel having anything further to say why the judgment of the court should not be pronounced against said defendant upon the verdict of guilty heretofore rendered by the jury in the above cause: Now therefore it is ordered and adjudged by the court that the said defendant pay a fine in the sum of dollars and costs, and that the said defendant stand com- mitted to the ————— jail until said fine and costs are fully paid, or until he is discharged according to law. § 491. Application for discharge of indigent convict. To A. B., United States Commissioner for the ———— District of The undersigned, C. D. , respectfully shows that he was sentenced by the United States District Court for the District of —————, on the —-——— day of A. D, , to pay a fine in the sum of - dollars and the costs in that behalf; that he has been confined thirty days and still is confined in the (give name of jail) solely for nonpayment of said fine and costs, and that he is unable to pay the same and has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt; wherefore he prays to be discharged as a poor convict, pursuant to Section 1042 of the Revised Statutes of the United States, from further imprisonment under the sentence aforesaid. te ‘ Cc. D. (Add verification as in See. 447, supra.) § 493] FORMS 321 § 492. Motion for new trial. H (Title of Court.) (Title of Cause.) ————— Term. And now comes A. B., the defendant in the above entitled cause, by C. D., his attorney, and moves the court to set aside the verdict rendered herein and to grant a new trial and for reasons therefor shows to the court the following: a. The court erred in overruling defendant’s demurrer to the indictment and each count thereof. b. The court erred in overruling defendant’s motion to quash the indictment and each count thereof. c. The verdict is contrary to the law of the case. d. The verdict is not supported by any evidence in the case. e. The court upon the trial of the case admitted incom- petent evidence offered by the United States. f. The court upon the trial of the case excluded com- petent evidence offered by the defendant. g. The court improperly instructed the jury to defend- ant’s prejudice. h. The court improperly refused, to defendant’s prej- -udice, to give correct instructions tendered by the defendant. i. The court erred in refusing to direct a verdict of not guilty at the close of the government’s evidence. j. The court erred in refusing to direct a verdict of not guilty at the close of all the evidence. C. D., Attorney for Defendant. § 493. Motion in arrest of judgment. (Title of Court.) (Title of Cause.) ——— Term. And now after verdict against the said defendant and before sentence, comes the said defendant in his own proper person, and by A. B., his attorney, and moves the sourt here to arrest judgment herein and not pronounce 322 FEDERAL CRIMINAL PROCEDURE [§ 498 the same, for the following reasons, to wit: (set forth the grounds for the motion) ; because of which said errors in the record herein no lawful judgment can be rendered by the court upon the record in this cause. C.D., Defendant. By A.B., Attorney for Defendant. § 494. Petition for writ of error. (Title of Court.) (Title of Cause.) ————. Term. And now comes A. B., defendant herein, by C. D., his attorney, and says that an the ————— day of ———___ A. D. , this court entered judgment herein against this defendant, in which judgment and the proceedings had prior thereto in this cause certain errors were committed, to the prejudice of this defendant, all of which will more fully appear from the assignment of errors which is filed with this petition.’ | Wherefore this defendant prays that a writ of error may issue in this behalf out of the United States Circuit Court of Appeals for the ————— Circuit, for the cor- rection of the errors so complained of, and that a tran- script of the record, proceedings and papers in this cause, duly authenticated, may be sent to the Circuit Court of Appeals aforesaid. A. B.,. Defendant. By C. D., Attorney for Defendant. § 495. Assignment of errors.. (Title of Court.) » (Title of Cause.) ——— Term. A. B., defendant in the above entitled cause, by C. D., his attorney, in connection with his petition for a writ Par ar ar a § 496] FORMS 323 of error, makes the following assignment of errors which he alleges occurred upon the trial of said cause: 1—The trial court erred in overruling the demurrer to the indictment, in this, to wit: (describe the alleged errors). 2—The trial court erred in admitting incompetent evi- dence to defendant’s prejudice, in this, ts wit: (describe the alleged errors). 3—The trial court excluded competent evidence offered by the defendant, to defendant’s prejudice, in this, to wit: (describe the alleged errors). 4—The trial court erred in the charge to the jury, to the defendant’s prejudice, in this, to wit: (describe the alleged errors). 5—The trial court erred in refusing to direct a verdict of not guilty at the close of all the evidence, in this, to wit: (describe the alleged errors). 6—The trial court erred in denying the motion for a new trial on behalf of defendant, in this, to wit: (describe the alleged errors). 7—The trial court erred in denying the motion in arrest of judgment on behalf of the defendant, .in this, to wit: (describe the alleged errors). A. B., Defendant. By C. D., Attorney for Defendant. § 496. Writ of error. To the Honorable Judges of the District Court of the United States for the —————— District of ——_—_—_, Greeting: Because in the record and proceedings, as also in the rendition of the judgment, of a cause which is in the said District Court before you, or some of you, between the United States, plaintiff and ————, defendant, mani- fest error has happened, to the great damage of the said Byrne’s Crim. Proc.—23 324 FEDERAL CRIMINAL PROCEDURE [§ 496 , defendant, as by his complaint appears, we, being allie that error, if any, should be duly corrected, and full speedy justice done to the parties aforesaid in this behalf, do command, if judgment be given therein, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with the things concerning the same, to the United States Circuit Court of Appeals for the ———— Circuit, together with this writ, so that you have the same at ae in said Circuit on the ————- day of ————- A. D.——, in the said Circuit Court of Appeals, to be then and there held, that the record and proceedings aforesaid being inspected, the said Circuit Court of Appeals may cause further to be done therein to correct the errors, what of right, and according to the laws and customs of the United States, should be done. Witness the Honorable ——————-, Chief Justice of- the United States, this ————— day of ———_— A. D. , and in the —-——— year of the independence of the United States. Allowed : (Seal) U.S. Circuit Judge. Clerk of the United States ~ Circuit Court of Appeals for the —_————- Circuit. § 497. Citation to writ of error. (Title of Court.) (Title of Cause.) ——_——. Term. To C. D., defendant in error: You are hereby cited and admonished to be and appear at a session of the United States Circuit Court of Appeals for the ————— Circuit to be held in the city of ————, in said Circuit, on the ————— day of ————— A. D. —.,, pursuant to a writ of error filed in the clerk’s office of the District Court of the United States for the $ 498] FORMS 326 ———— District of —_———, wherein A. B. is plaintiff in error and you are defendant in error, to show cause, if any there be, why the judgment rendered against the said plaintiff in error, as in the said writ of error men- tioned, should not be corrected and why speedy justice should not be done to the parties in that behalf. Witness the Honorable —————— Circuit Judge of the United States at —————, within said Circuit, this ———— day of ———— A. D. , and of the inde- pendence of the said United States the —————— year. Clerk of the United States Circuit Court of Appeals for the —————— Circuit. (Seal) § 498. Acceptance of service of citation. I hereby, this ———— day of ———— A. D. —, accept due personal service of the foregoing citation on behalf of the United States'of America, defendant in error. Attorney for the United States. Affidavit of service of citation. State 6f§——--——|_ County of : HK. F., being first duly sworn, on oath says that he per- sonally delivered a copy of the foregoing citation to G. H., United States Attorney for the ———— District oo E. F. Subscribed and sworn to before me this —-——— day of ——_—— A. D. ——. Notary Public. 326 FEDERAL CRIMINAL PROCEDURE [§ 499 § 499. Bill of exceptions. (Title of Court.) (Title of Cause.) — Term. Be it remembered that upon the arraignment of the defendant in said cause at the ————— Term of said court, on the ————— day of ————— A. D.—, the said defendant by his counsel, demurred to said indictment (or moved to quash said indictment), said demurrer (or motion to quash) being as follows, to wit: (set forth the demurrer or motion), which said demurrer (or motion to quash) was overruled by the court and denied, to which ruling of the court defendant then and there duly excepted; and that said defendant being then and there arraigned in person appeared and pleaded not guilty to said indictment. (If error is claimed with reference to the impaneling or challenging of the jurors, set forth the matters com- plained of, with an exception to the court’s action.) Be it further remembered, that on the ———— day of A.D. , being one of the days of the Term of said court, this cause came on to be heard before his Honor, Judge ——————, one of the judges of said court, and a jury therein duly sworn to try said cause, and the United States to maintain the issues on its part called as a witness one A. B., who being duly sworn, testified as follows: (here insert abstract of the evidence, according to the rules of the Circuit Court of Appeals, except in reciting questions or answers to which objec- tion is made, where it is usual to set forth the words of court, counsel and witness verbatim; a few other instances also seem to require the exact words uttered by the parties, such as for the purpose of showing the attitude of the court or the witness on some important point; also where the testimony is so important that it should be set forth verbatim). (At the conclusion of the government’s evidence, say) Here the government rested. § 499] . FORMS 327 Whereupon, defendant by his counsel moved the court to instruct the jury to return a verdict of not guilty, for the following reasons (set forth the grounds for the motion). Said motion was denied by the court, to which ruling of the court defendant then and there duly excepted. ~ And thereupon the defendant to maintain the issues on his part called as a witness C. D., who, being duly sworn, testified as follows: (here insert defendant’s evidence, and at the close say) Here the defendant rested and the government rested also, the foregoing being all the evidence offered or introduced by either party upon the trial of said cause. And thereupon the defendant by his counsel moved the court to direct the jury to return a verdict of not guilty, for the following reasons (set forth grounds for motion) ; which said motion was denied by the court, to which ruling of the court defendant then and there duly excepted. And thereupon the court charged the jury as follows: (set forth the charge together with the requests for instructions or modifications and the exceptions to the court’s rulings); which said charge of the court above set forth comprises all the instructions given to the jury in said cause. And thereupon the jury rendered a verdict of guilty as charged in the indictment and thereupon the defendant by his counsel moved the court for a new trial of said cause, for the following reasons (set forth the grounds for the motion); (if abuse of the court’s discretion is claimed in refusing a new trial, set forth grounds of the motion, supporting affidavits and other matters fully); which said motion for a new trial was denied by the court, to which ruling of the court the defendant then and there duly excepted; and thereupon the defendant moved the court to arrest judgment upon the said . verdict, for the following reasons (set forth the grounds 1 328 FEDERAL CRIMINAL PROCEDURE [§ 499 for the motion); which said motion was denied by the court, to which ruling of the court the defendant then and there duly excepted. And thereupon the court rendered its judgment and sentence upon said verdict, which judgment and sen- tence is as follows (set forth the judgment). And forasmuch as the evidence and proceedings and matters of exception above set forth do not fully appear of record, the defendant by his attorney tenders this bill of exceptions and prays that the same be. signed and sealed by the court here, pursuant to the statute in such case made and provided; _Which is done accordingly this day of ———— A. D. : G. H., (Seal) Judge. § 500. Petition for certiorari for diminution of record. (Title of Court.) (Title ot Cause.) ——_——— Term. To the Honorable Judges of the ————— Court of the United States. The petition of A. B. respectfully shows to this Hon- orable Court that there is now pending in this court the case of (describe the pending case briefly and then set forth the omission from the record of the matters or proceedings which it is desired to have certified). Wherefore, your petitioner prays that a writ of cer- tiorari may be issued out of and under the seal of this court, directed to the United States ————— Court and the clerk thereof, commanding said court and said clerk: to certify and send to this court on a day certain to be named, a full and complete transcript of (here describe the portion of the record which is to be supplied). C. D., Attorney for Petitioner. (Add verification as in Sec. 447, supra.) §502] FORMS 329 § 501. Motion for Certiorari. In the Supreme Court of the United States. ———— Term. A. B., Petitioner, v. United States of America, Respondent No. Now comes A. B., by C. D., his counsel, and moves this Honorable Court that it shall, by certiorari or other proper process directed to the Honorable, the Judges of the United States Circuit Court of Appeals for the Circuit, require said court to certify to this court for its review and determination, a certain cause in said Circuit Court of Appeals lately pending, wherein the respondent United States of America was defendant in error and your petitioner A. B. was plaintiff in error, and said petitioner herewith tenders his petition and brief together with a certified copy of the record of said cause in said Circuit Court of Appeals. A. B. : By C. D., Counsel for Petitioner. § 502. Petition for writ of certiorari from the Supreme Court of the United States to a Circuit Court of Appeals. The Supreme Court of the United States. - Term. A. B., Petitioner, : as : No. United States of America, Respondent. To the Honorable, the Chief Justice and Associate Justices of the Supreme Court. of the United States. Your petitioner, A. B., respectfully represents that (here set forth the various steps of the procedure in the 330 FEDERAL CRIMINAL PROCEDURE [§ 502 case in the trial court and the Court of Appeals to and including the decision of the latter, then set forth the reasons which it is claimed render the decision of the appellate court erroneous). Your petitioner believes that the aforesaid judgment of the Circuit Court of Appeals is erroneous, and that this honorable court should require the said case to be cer- tified to it for its review and determination, in conformity with the provisions of the Act of Congress in such case made and provided. Your petitioner, therefore, prays that a writ of cer- tiorari be issued by this court, directed to the said Circuit Court of Appeals for the ————— Circuit, commanding the said court to certify and send to this court, on a day certain, a full and complete transcript of the record and all proceedings of the said Circuit Court of Appeals in said case, to the end that said case may be reviewed and determined by this court as provided in Section 240 of the Judicial Code of the United States, and that your petitioner may have such other and further relief or remedy in the premises as to this court may seem appro- priate and in conformity with law, and that said judg- ment of said Circuit Court of Appeals in said case may be reversed by this honorable court. A. B., By C. D., Counsel for Petitioner. § 503. Affidavit to petition to Supreme Court for writ of certiorari. State of 7 County of C. D., being duly sworn, on oath says that he is one of the goutisel for A. B., the petitioner in the foregoing petition for certiorari, that he the said OC. D. prepared § 504] FORMS 331 said petition, and that the allegations thereof are true, as he verily believes. C. D. Subscribed and sworn to before me this ———— day of ———— A.D. (Seal) Notary Public. § 504, Petition for habeas corpus on ground that exces- sive bail is required. To the District Court of the United States for the ———— District of ————. Your petitioner, A. B., of the city of —————,, and State of —__——, humbly complaining shows that he is un- justly and unlawfully detained and imprisoned by one C. D., United States Marshal for the ————— District of —_——, in the ——_—— Jail; that your petitioner has so been restrained of his liberty since the ————— day of , in the year. ; that the cause or pretext of such detention is a certain order of commitment, a copy whereof is hereto annexed and marked Exhibit A, issued by one HE. F., a United States Commissioner for the District of —————,, ordering that your peti- tioner be imprisoned and detained in said jail until your petitioner shall give bail in the sum of fifty thousand dollars, for his personal appearance before the United States District Court for the ———— district, at the : term thereof to answer such matters and things as may be charged against your petitioner for violation of (name the statute) ; and further that said commitment is void and in violation of the Eighth Amendment to the Constitution of the United States in that it requires exces- sive bail to be given by your petitioner; and further that your petitioner can, and has offered to, give bail for his appearance as aforesaid, in the sum of ten thousand dol- lars, and with good and sufficient sureties, and that your 332 FEDERAL CRIMINAL PROCEDURE [§ 504 petitioner if allowed to give said bail and to be released from custody thereupon, will be present at said term of said District Court of the United States, there to answer whatever may be charged against him in the behalf aforesaid, and abide the orders and judgments of | said court in that behalf and will not depart said court without leave thereof. Wherefore, your petitioner prays that a writ of habeas corpus be issued by this Honorable Court directed to the said C. D., United States Marshal as aforesaid, and that the matters and things herein contained be inquired of by the Court and that your petitioner be ordered dis- charged from the detention and imprisonment aforesaid, upon giving bond with good and sufficient sureties in the sum of ten thousand dollars, for his appearance as afore- said, before this Honorable Court. A. B. (Add verification as in Sec. 447 supra.) § 505. Petition for habeas corpus in extradition case on ground no crime charged under laws of demanding state. To the United States District Court for the ———— Dis- trict of ————. Your petitioner, A. B., of the State of ————, com- plaining shows that he is ‘unlawfully detained and impris- oned in the jail at ————— in the state of ————-; that he is unlawfully restrained of his liberty by one C. D., who claims to be acting as agent for the State of New York, and as such agent claims to hold your petitioner under color of authority of a certain executive warrant issued by the Governor of the State of Illinois, on the day of ——_— A. D. ——, (a copy of which said executive warrant is hereto attached and made a part hereof, being marked Petitioner’s Exhibit A); that said. warrant was issued in compliance with the request of a certain requisition from the Governor of the State of § 506] FORMS 333 New York, directed to the Governor of the State of Illinois, reciting that your petitioner had been indicted in the State of New York on the charge of bigamy and was a fugitive from the justice of that state (a copy of which said requisition is hereto attached and marked Peti- tioner’s Exhibit B); that a copy of the indictment found in the State of New York against petitioner accompanied said requisition (a copy of said indict- ment being ‘hereto attached and marked Petitioner’s Exhibit C); petitioner further alleges that said arrest and detention of your petitioner is illegal in that no crime is charged against your petitioner in said indictment, that is to say, that said indictment nowhere alleges that the said alleged first wife of said petitioner therein named is still living and nowhere alleges that petitioner is still married to said alleged first wife named in said indict- ment as H. F. - Wherefore, your petitioner prays that a writ of habeas corpus be issued to said C. D., directing him to bring the body of your petitioner before this Honorable Court and that your petitioner may be discharged from said unlaw- ful restraint and detention aforesaid. A. B. (Add verification as in Sec. 447 supra.) § 506. Order granting writ of habeas corpus. (Title of Court.) - (Title of Cause.) ———— Term. On reading and considering the petition of A. B., filed herein, whereby it appears that he is illegally imprisoned and restrained of his liberty by C. D., in the Jail and it appearing to the court that a writ of habeas corpus ought to issue, it is ordered that a writ of habeas corpus issue out of and under the seal of this court, directed to the said C. D., commanding him to have the body of the said A. B. before me in the courtroom of this a 334 FEDERAL CRIMINAL PROCEDURE [§ 506 court, on the ————- day of —_—_—_ A. D. — , to do and receive what shall then and there be considered con- cerning the said A. B., together with the time and cause of his detention and that he, the said C. D. have then and there the said writ. Judge. Dated this ————_— day of —_——_ A. D. ——. § 507. Writ of habeas corpus. The President of the United States of America to the United States Marshal for the ———— District of , Greeting: You are hereby commanded to have the body of A. B., by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and deten- tion, before the United States District Court for the District of —————, at ——_——, on the day of ———_—— A. D. ——, to be dealt with according to law; and have you then and there this writ, with a return thereon of your doings in the premises. Witness the Honorable ————,, Judge of the United States District Court for the ————— District of ; this day of —__—.,, A. D. , and of the independence of the said United States the year. (Seal) Clerk. § 508. Return to writ of habeas corpus. (Title of Court.) (Title of Cause.) ———— Term. J, A. B., to whom the annexed writ of habeas corpus is directed have now here before the court the body of the said C. D., therein named as therein commanded, and I hereby certify that I am (if respondent is an officer, give his title), that the cause of the detention of the said C. D., § 510] FORMS 335 is a certain (name the warrant or other process for the detention), directed to me, a copy of which is hereto annexed and marked Respondent’s Exhibit 1; which said warrant was issued under and by virtue of a certain judgment of the United States District Court for the District of —————, on the day of A. D. ——, duly convicting the said petitioner OC. D. of the crime of (name the offense), a copy of which judg- ment is hereto annexed and marked Respondent’s Exhibit 2. _ And I, the said A. B., respondent as aforesaid, do fur- ther certify that (setting forth such matters of denial of the petition or additional affirmative allegations on behalf of respondent as seem advisable). A. B. Dated this —-——— day of ————_ A. D. ——. (Add verification as in Sec. 449 supra.) § 509. Traverse to return in habeas corpus. (Title of Court.) (Title of Cause.) —————. Term. A. B., petitioner in the above entitled cause, in answer to the return of the said C. D., respondent herein, to the writ of habeas corpus directed to him the said C. D. herein, denies that (setting forth such denials as are necessary) and further shows the court that (setting: forth affirmative matters, if any additional to those alleged in the petition are desirable). A. B. (Add verification as in Sec. 449, supra.) § 510. Order of discharge in habeas corpus. (Title of Court.) (Title of Cause.) ———— Term. Whereas, a writ of habeas corpus has been heretofore issued on the application of A. B., directed to C. D., direct- 336. FEDERAL CRIMINAL PROCEDURE _[§510 ing him the said C. D. to produce the body of the said A. B. before this court for the purpose of an inquiry into the cause of the detention of the said A. B. by him the said C. D.; And, whereas, said C. D. has heretofore brought the said A. B. before the court, and has made and filed in the court the return of him the said C. D. to said writ of habeas corpus setting forth the cause of the detention of said A. B.; And, whereas, the petition and return in said cause together with the proofs of the respective parties have been fully heard and considered by the court here and the court having heard the arguments of counsel for the respective parties, and being fully advised in the prem- ises, it appears to the court that the.said A. B. is illegally detained under the custody of the said C. D.; It is therefore ordered by the court that the said A. B. be and he is hereby discharged from the custody of the said C. D., and that he the said A. B. go hence thereof without day. Judge. § 511. Order remanding petitioner in habeas corpus. (Title of Court.) (Title of Cause.) ————— Term. Whereas, a writ of habeas corpus has been heretofore issued on the application of A. B., directed to C. D., com- manding him the said C. D. to produce the body of the said A. B. before this court for the purpose of an inquiry, into the cause of the detention of the said A. B. by him the said C. D.; And, arhiereads said CO. D. has heretofore brought the said A. B. before the court, and has made and filed in the court the return of him the said C. D. to said writ of habeas corpus setting forth the cause of the detention of the said A. B.; ( i § 512] FORMS 337 And, whereas, the petition and return in said cause together with the proofs of the respective parties have been fully heard and considered by the court and the court having heard the argument of counsel for the respective parties, and being fully advised in the prem- ises, it appears to the court that the said A. B. is lawfully detained under custody of the said C. D.; It is therefore ordered by the court that the said A. B. be and he hereby is remanded to the custody of the said C. D. Judge. § 512. Attachment for disobedience of writ of habeas corpus. (Title of Court.) The President of the United States of America, to the Marshal of the —————— District of Greeting: It appearing satisfactorily to me, that A. B. to whom a writ of habeas corpus was delivered, commanding him the said A. B. to bring before this court C. D. in the said writ named, has neglected and failed to obey the said writ, according to the command thereof, by failing to produce the said C. D. before this court, and also by failing to make a return to such writ as therein commanded, and no sufficient excuse having been shown for such neglect and failure on the part of the said A. B., these are there- ? ‘.. fore to command you forthwith to arrest the said A. B. -and bring him immediately before this court to abide and perform such order or judgment as may be made in the:premises; and have you then and there this writ with a return thereon of your doings thereunder. Witness the Honorable HE. F., Judge of the United States District Court for the ———— District of —__—_- 338 FEDERAL CRIMINAL PROCEDURE [§ 512 this ————— day of A. D. ——,, and of the raeenee of the United States the ————— year. G. H. (Seal) Clerk of Court. § 513. Information for contemptuous publication. (Title of Court.) Term. United States of America, District of ———_— To the Honorable Judges of the District Court of the United States for the ———— District of ——__—_. Now comes the United States, by A. B., United States Attorney for the ————- District of ————, and gives the court to understand and be informed that on the ————. day of —————_ A.. D. ——, there was pending in this court a certain indictment theretofore returned into said court by the grand jurors thereof, charging one C. D. with the crime of (name the offense), which said indictment was Number in said court and to which said indictment said C. D., defendant as aforesaid, had theretofore pleaded not guilty, and that on the day of ———— A. D. , in the city of ————, in said _ (division and) district there was published a certain daily newspaper known as The Globe, of which said newspaper one H.. F. was proprietor and one G. H. was editor on the date last aforesaid, and that the said E. F. and the said G. H. on the date last aforesaid, in said division and district, published and caused to be pub- lished in said newspaper of and concerning said cause so pending in this court, as aforesaid, and of and concern- ing this court, a certain article in contempt of the authority, dignity and decorum of this court, which said article is in words and figures as follows: (set forth article by tenor). Wherefore, the said United States Attorney, for the Ss. § 515] FORMS 339 said United States, moves this Honorable Court for a rule upon the said HE. F. and'the said G. H. to be and appear before this court on a day to be named by the court, to show cause, if any they have, why an attachment should not issue against them for a contempt of court in respect to the publication of said article. x, X United States Attorney. (Add Gavivaion: as in Sec. 448, supra.) § 514. Order to show cause. On motion of A. B., United States Attorney, and on the filing of the information of the said A. B. charging con- tempt of court against one E. F. and one G. H., it is ordered that the said E. F. and the said G. H., and each of them, be and appear before this court on the day of —__—— A. D. ——,, to show cause if any they have why they should not be punished for contempt of court in the publication of a contemptuous article as more fully set forth in said petition of said United States Attorney. LJ. Judge. § 515. Attachment in contempt. (Title of Court.) The President of the United States of America, to the Marshal of the —-——— District of ——_—_,, Greet- ing: Whereas, it has been made to appear to said court that one HE. F. was duly served with an order of said court to appear before said court on the ————- day of A. D. ——, to show cause why he should not be punished for contempt of court, and that the said E. F. has wholly failed to appear and made default in obeying the com- mand of said order. Byrne’s Crim. Proe.—24 340 FEDERAL CRIMINAL PROCEDURE [§ 515 Now, therefore, you are hereby commanded forthwith to apprehend the said E. F. and bring him before said court to be dealt with according to law; and you are further commanded to detain in the manner prescribed by law the said H. F. until he shall be discharged by said court, and of this make due return. Witness the Honorable ————,, Judge of the District Court of the United States for the ————— District of , and the seal thereof, this ————— day of A. D. ——, and of the independence of the United States the ———— year. K. L. (Seal) Clerk. § 516. Order punishing contempt committed in court’s presence.. In the Circuit Court of the United States for the Northern District of California. In the Matter of Contempt of , In Open Court. Whereas, on this third day of September, 1888, in open court and in the presence of the Judges thereof, to wit, Honorable Stephen J. Field, Circuit Justice Presiding, Honorable Lorenzo Sawyer, Circuit Judge, and Honorable George M. Sabin, District Judge, during the session of said court, and while said court was engaged in its regular ' business, hearing and determining causes pending before it, one was guilty of misbehavior in the presence and hearing of said court; And, whereas, said court thereupon duly and lawfully ordered the United States Marshal, — — , who was then present, to remove the said ——— from the courtroom; And whereas the said United States Marshal then and there attempted to enforce said order and then and there was resisted by one an attorney of this ’ § 517] FORMS 341 court, who while the said Marshal was attempting to execute said order in the presence of the court, assaulted the said United States Marshal, and then and there beat him the said Marshal, and then and there assaulted said Marshal with a deadly weapon, with intent to obstruct the administration of justice, and to resist such United States Marshal and the execution of the said order: And whereas the said was guilty of a contempt of this court by misbehavior in its presence and ' by forcible resistance in the presence of the court to a lawful order thereof, in the manner aforesaid: Now therefore be it ordered and adjudged by this court, that the said , by reason of said acts, was and is guilty of contempt of the authority of this court, committed in its presence on this third day of September, 1888; And it is further ordered that said be punished for said contempt by imprisonment for the term of six months; | And it is further ordered, that this judgment be executed by imprisonment of the said in the County Jail of the County of Alameda, in the State of California, until the further order of this court, but not to exceed said term of six months; And it is further ordered that a certified copy of this order, under the seal of the court, be process and warrant for the execution of this order. (See Ex parte Terry, 128 U.S. 289; 32 L. Hd. 405.) § 517. Answer of alleged contemnor. In the Circuit Court of the United States for the Ninth Cireuit, Northern District of California. In the Matter of Contempt of To the Honorable Circuit Court aforesaid: The petition of respectfully represents: That in all the matters and transactions occurring in "342. FEDERAL CRIMINAL PROCEDURE _[§517 said court on the third day of September inst., upon which the order in this case was based, your petitioner did not intend to say or do anything disrespectful to said court or the judges thereof, or any of them; that when petitioner’s wife, the said — , first arose from her seat, and before she uttered a word, your petitioner used every effort in his power to cause her to resume her seat and remain quiet; when this court made the order that petitioner’s wife be removed from the courtroom, your petitioner arose from his seat with the purpose and inten- tion of himself removing her from the courtroom, quietly and peaceably, and had no intention or design of obstruct- ing or preventing the execution of said order of the court; that he never struck or offered to strike the United States Marshal until the said Marshal had assaulted himself, and had in his presence violently and, as he believed, unnecessarily assaulted petitioner’s wife. Your petitioner most solemnly avers that he neither drew nor attempted to draw any deadly weapon of any kind whatsoever in said courtroom, and that he did not assault or attempt to assault the United States Marshal with any deadly weapon in said courtroom or elsewhere. ‘And in this connection he respectfully represents that after he had left said courtrom, he heard loud talking in one of the rooms of the United States Marshal, and among the voices proceeding therefrom he recognized that of his wife, and he thereupon attempted to force his way into said room through the main office of the United States Marshal; the door of this room was blocked with such a crowd of men that the door could not be closed; that your petitioner then for the first time drew from inside his vest a small sheath knife, at the same time saying to those standing in his way that he did not want to hurt anyone; that all he wanted was to get in the room where his wife was; the crowd then parted and your petitioner entered the doorway and then saw a deputy United States Marshal with revolver in his hand pointed at the ceiling § 517] FORMS 343 of the room; someone then said, ‘‘Let him in, if he will give up his knife,’? and your petitioner immediately released hold of the knife to someone standing by. In none of these transactions did your petitioner have the slightest idea of showing any disrespect to this Honor- able Court or any of the Judges thereof. That he lost his temper, he respectfully submits, was a natural consequence of being himself assaulted when he was making an honest effort to peacefully and quietly enforce the order of the court so as to avoid a scandalous scene, and of seeing his wife so unnecessarily assaulted in his presence. Wherefore your petitioner respectfully requests that this Honorable Court may in the light of the facts herein stated revoke the order made herein committing him to prison for six months. And your petitioner will ever pray, ete. Dated Sept. 12, 1888. (Add affidavit as in Sec. 449, supra.) See Ex parte Terry, 128 U. S. 289; 32 L. Hd. 405. Se TABLE OF CASES (REFERENCES ARE TO SECTIONS) A Ableman v. Booth, 21 How. 506; 16 L. Ed. 169............ 432 Ackley v. U. 8., 200 Fed. 217.............. Sains Suara 142, 150 Adams v. New York, 192 U. S. 585; 48 L. Hd. 575....... 5, 272 Adams v. Russell, 229 U. 8. 353; 57 L. Ed. 1224.......... 366a Addington v. U. S., 165 U. S. 184; 41 L. Ed. 679.......... 322 Adler v. U. S., 182 Fed. 464.................0000 eee 278, 331 Adutt, in re, 55 Fed. 376.......... ccc cece cece eee eees 44 Agnew v. U.S., 165 U. S. 36; 41 L. Ed. 624.............. ssouscua ease Gus duster eaneaeanemeoentee aeons 82, 86, 183, 184, 299, 379 ° Alabama, Compton v., 214 U. 8.1; 53 L. Hd. 885......... 65 Alabama, Rogers v., 192 U. S. 226; 48 L. Hd. 417......... 88 Alexander, ex parte, 14 Fed. 680............. 00.0 ce eueee 426 Alexander v. U. 8., 188 U. 8S. 353; 34 L. Ed. 954.......... 381 Alexis v. U. 8., 129 Fed. 60........ 118, 267, 299, 301, 324, 396 Alkon v. U. 8., 163 Fed. 810............. 0. cs eeeeeee 382, 395 Allen v. Georgia, 166 U. 8S. 188; 41 L. Hd. 949........... 390 Allen v. U. S., 157 U. 8. 675; 39 L. Hd. 854............ 331 Allen v. U. S., 164 U. 8S. 492; 41 L. Hd. 528............ 299 Allen; U2 8.5 115 Beds Bis st doacsioas sae ew new anee 288, 381 Allen v, U. S., 194 Fed. 664..............-..00- Ste eed 212 Allis v. U. S., 155 U. 8. 117; 39 L. Ed. 91. ..289, 297, 379, 382 Allis-Chalmers Co. v. U. S., 162 Fed. 679................ 388 Allison v. U. S., 160 U. S. 203; 40 L. Ed. 395......... 300 Allison v. U. S., 216 Fed. 329..................... 152, 153 American Sugar Refining Co., in re, 178 Fed. 109......... 102 Ames, Rice v., 180 U. 8. 371; 45 L. Ed. 577............. SERBS: catspelss Sueb is jane asanahse anal as cnalosetatasie aa e 28, 36, 39, 42, 143,/422 Ames, Terlinden v., 184 U. S. 270; 46 L. Ed. 534...... 47, 484 Ammerman v. U. §8., 216 Fed. 326..............:...152, 153 Ammerman v. U. 8., 185 Fed. 1.......... Wasuiataitacee 275, 278 345 346 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Anargyros & Co., S. Anargyros v., 191 Fed. 208........... 441 Andersen v. U. S8., 170 U. S. 481; 42 L, Ed. 1116......... s-iee deaaitienlp Gare ace NA Soa eRe BaNeS pees 84, 90, 152, 296 Andersen v. Treat, 172 U. S. 24; 43 L. Ed. 351........ 22. 268 Anderson v. Moyer, 193 Fed. 499........... 000 ecec cues 357 Anderson, Tinsley v., 171 U. 8. 101; 48 L. Ed. 91........ Sita eee Meena ee padaen mem vones eae 421, 426, 433, 443 Andrews v. Schwartz, 156 U. 8. 272; 39 L. Ed. 422...... 433 Andrews v. U.S8., 224 Fed. 418................. 225, 322, 381 Angle v. U. S., 172 Fed. 658............... 0c cece eee 107 Angle v. U. S., 162 Fed. 264,............. 0. cece eee 328, 354 Ansbro v. U. S., 159 U. S. 695; 40 L. Ed. 310............ 368 Appleyard v. Massachusetts, 203 U. S. 222; 51 L. Ed. 161.. Scio Rk Rear gng eee ine weve +e eee seen ae ate Ga ake 58, 60, 62 Arizona, Robertson v., 188 Fed. 783..............eeeeee- 301 Arkansas, Hammond Packing Co. v., 212 U. 8S. 322; 53 Tey BD, DOO cogs sO is Ses Gales decid snevestueaga used arestdesalaiiel dua seatgnae 4 Arkansas v. Schlierholz, 179 U. 8S. 598; 45 L. Ed. 335...:.. 385 Armour Packing Co. v. U. 8., 153 Fed. 1. .121, 136, 163, 165, 382 Armour Packing Co. v. U. S., 209 U. S. 56; 52 L. Ed. 681... 128 Atchison, T. & 8. F. R. Co. v. U. S., 172 Fed. 194........ .. 314 Attorney General, 10 Opinions 501.................0000 47 Atwell y..U, 8, 102 Fed. 00s veviscesccsseerassere ons eine 100 Ayers, re, 123 U. S. 443; 31 L. Hd. 216.................. 426 B Backer, Bergerman v., 157 U.S. 655; 39 L. Hd. 845....... 433 Bacon v. U. S., 97 Fed. 35.............06. 5, 168, 270, 274, 330 Badelk v. U. 8., 177 U. 8. 530; 44 L. Ed. 874.............. 10 Baez, ex parte, 177 U.S. 378; 44 L. Ed. 813.......... waee 481 Bain, ex parte, 121 U. S. 1; 30 L. Ed. 849... .111, 112, 114, 136 Baker, Fisher v., 203 U. S. 174; 51 L. Ed. 142............ 422 Baker v. Grice, 169 U. S. 284; 42 L. Hd. 748............-- 433 Baldwin v. Kansas, 129 U. 8. 52; 32 L. Ed. 640...... 366a, 381 Ball v. U. S., 147 Fed. 32............. 0.00 cece 264, 381, 382 Ball v. U. S., 140 U. S. 118; 35 L. Ed. 377..126, 289, 316, 356, 427 Ball v. U. S., 163 U. 8S. 662; 41 L. Ed. 300.............--5 sos aus 0 Saree ear ae 159, 209, 215, 260, 320, 330 4 ‘TABLE OF CASES 347 (REFERENCES ARE TO SECTIONS) Ballew v. U. 8., 160 U. S. 187; 40 L. Ed. 388...... 808, 317, 358 Balliett v. U. S., 129 Fed. 689...............0005 264, 331, 379 Bannon v. U. 8., 156 U.S. 464; 39 L. Ed. 494.......... 162, 381 Barrett, Lambert v., 157 U. S. 697; 389 L. Hd. 865......... 433 Barrett v. U. S., 169 U. S. 218; 42 L. Ed. 728............. 379 Bartell v. U. S., 227 U. 8. 427; 57 L. Ed. 588...... 136, 178, 219 Barth v. Clise, 79 U. S. (12 Wall.) 400; 20 L. Ed. 398...... 413 Bartholomew v. U.S., 177 Fed. 902.......... 148, 317, 358, 365 Bartlett v. U. S., 106 Fed. 884......... 0... cece cence eee 187 Barton v. Forsyth, 20 How. 532; 15 L. Ed. 1012 Reise saeaaeres 295 Baskin v. U. S., 209 Fed 740... 2... cc ccc cee eee eee 137 Basset v. U. S., 76 U. S. (9 Wall.) 38; 19 L. Ed. 548....... 362 Bassing v. Cady, 208 U. S. 386; 52 L. Ed. 540... .62, 63, 68, 206 Batchelor v. U. 8., 156 U. 8. 426; 39 L. Hd. 478........... 137 Bates:v U.5., 10 Ped, 92.00.00 ccccce see edonegee cena 6 363 Beach Vv. U.S. 46 Ped. 154s cao ee naaisadansaceeae ws Sane 271 Beason, Davis v., 133 U. 8. 333; 33 L. Ed. Gat si ticabuncee 426, 428 Beavers, in re; 131 Med) 366). ct owaw cass am tee teens 3la Beavers v. Haubert, 198 U. S. 77; 49 L. Hd. 950........... 244 Beavers v. Henkel, 194 U. S. 78; 48 L. Ed. 882...... 28, 30, 31 Beck v. U. S., 145 Fed. 625....... 00... cece eee ence neces 222 Behrendt, in re, 22 Fed. 699.......... 2. cece cece eee eens 49 Belt, ex parte, 159 U. 8. 95; 40 L. Ed. 88................ 426 Bennett, in re, 84 Fed. 324......... 0.2. eee ketene 216 Bennett v. U. S., 194 Fed. 680............. 2.02. e eee 118, 152 Bennett v. U. S., 227 U. 8. 833; 57 L. Hd. 581............ 118 Benson v. Henkel, 198 U. 8. 1; 49 L. Ed. 919.............. 129 Benson v. McMahon, 127 U. 8. 457; 32 L. Ed. 234. .43, 44, 47, 434 Benson v. U. S., 146 U. 8. 825; 386 L. Hd. 991.......... 261, 383 Bergerman v. Backer, 157 U. S. 655; 39 L. Ed. 845......... 433 Berggren, Schwab v., 143 U. S. 442; 36 L. Hd. 218. .342, 354, 356 Berkowitz v. U. 8., 938 Fed. 452...........0.00 000 eee 216, 219 Berkshire, Sier v., 185 Fed. 967.......... 000 sec ceeeeeees 205 Beshears, in re, 79 Fed. 70.2.1... 0... cece cence erences 29 Betts v. U. 8, 182 Fed. 228................ 156, 250, 299, 385 Bigelow, ex parte, 113 U. 8. 328; 28 L. Ed. 1005........... 426 Billingsley v. U. S., 178 Fed. 653............ 115, 163, 317, 358 Bingham, Virginia v., 88 Fed. 566...............00.005: 78. 348 TABLE OF CASES a (REFERENCES ARE TO SECTIONS) Bird v. U. 8., 180 U. 8S. 356; 45 L. Ed. 570............ eee 297 Bird v. U. S., 187 U. S. 119; 47 L.Ed: 100........ 118, 297, 299 Bise v. U. S., 144 Fed, 874............0 ccc cceceeeeee 162, 381 Blake v. Moyer, 206 Fed. 559............ cc ccc cecevucees 357 Blake v. Moyer, 208 Fed. 678....... tianlian noe oaapawe 357 Blake v. U. S., 71 Fed. 286................. 150, 166, 301, 380 Blanton v. U. S., 213 Fed. 320......... ccc ccc cece eens 299 Blitz v. U. 8., 153 U. 8. 308; 88 L. Ed. 725................ Es el let ateletto so euiescarsasen ate 187, 143, 175, 278, 322, 359, 365 Bohanan v. Nebraska, 118 U. 8. 231; 30 L. Ed. 71......... 366a Bohanan v. Nebraska, 125 U. S. 692; 31 L. Ed. 854......... 390 Bolln v. Nebraska, 176 U. 8S. 83; 44 L. Ed. 382...... 293, 366a Bollman, ex parte, 8 U. S. (4 Cranch.) 75; 2 L. Hd. 554..... 29 Bonner, in re, 151 U. S. 242; 38 L. Ed. 149........... 336, 363 Booth, Ableman v., 21 How. 506; 16 L. Ed. 169.......... 432 Booth v. U. 8., 189 Fed. 252......... ccc cece eee eens 381 Booth v. U. S., 197 Fed. 283............... eee 138, 164, 363 Bornn Hat Co., in re, 184 Fed. 506.................. 101, 102 Bornn Hat Co. v. U. 8., 223 U. S. 713; 56 L. Ed. 626...101, 102 Botsford v. U. S., 215 Fed. 510........... 0. ee eee 358 Boyd, in re, 49 Fed. 48........... cece cece eee eee ees 428 Boyd v. U. S., 116 U. S. 616; 29 L. Ed. 746..... 4, 270, 272, 278 Boyd v. U. S., 142 U. S. 450; 35 L. Ed. 1077.............. 227 Bradford v. U. S., 152 Fed. 616.................. 119, 188, 237 Bram v. U. S., 168 U. 8. 532; 42 L. Ed. 568........... 116, 395 — Brantley v. Georgia, 217 U. 8. 284; 54 L. Ed. 768......... 209 Breese v. U. S., 108 Fed. 804........ 0... cece eee eee es 297 Breese v. U. S., 148 Fed. 250....... eee te 190 Breese v. U. S., 106 Fed. 680........ eae 202, 258, 297, 303 Breese v. U. S., 203 Fed. 824........ 0... cece eee eens 97, 394 Breese v. U. S., 226 U. 8.1; 57 L. Ed. 97.......... 0. eee 107 Bridgeman v. U. 8., 140 Fed. 577..........0.ceeeeeeeees te ere ne errs 119, 124, 129, 143, 146, 152, 163, 177 Bromberger v. U. S., 128 Fed. 346.......... carolttgtarae ates 282 Brooks v. Missouri, 124 U. 8. 394; 31 L. Hd. 454.......... 366a Brooks v. U. §., 146 Fed. 223........... 0c cece eee reece 165 Brown v. Elliott, 225 U. 8. 392; 56 L. Hd. 1136........ 124, 237 Brown v. New Jersey, 175 U. S. 172; 44 L. Ed. 119... .293, .866a TABLE OF CASES 349 (REFERENCES ARE TO SECTIONS) Brown v. U. 8., 142 Fed. 1:................. 297, 299, 358, 395 Brown v. U. S., 143 Fed. 60............. eens 187, 156, 166 Brown. vi. U. S., 196 Wed. B81... csc cea ceeen eee ee 892, 443 Browne, Johnson v., 205 U. 8. 309; 51 L. Ed. 816........ 46 Browne v. U. §., 145 Fed. 1............. 106, 142, 1438, 299, 325 Bruce v. U. S., 202 Fed. 98...... 0.0.0.0... cece eee cece eee 147 Bryan v. U. S., 183 Fed. 495.0... ccc cece 275 Bryant, ex parte, 167 U. 8. 105; 42 L. Ed. 94........... 46, 47 Bryant v. U. S., 214 Fed. 51................000, 209, 363, 417 Bucklin v. U. S., 159 U. S. 682; 40 L. Ed. 305............ sus esaeua ee Seg tat ara wee ern toamu eevee ard/gams 806, 322, 373, 381 Bucks Stove & Range Co., Gompers v., 221 U. 8. 418; 55 Bi Bods 19 sais sche a ew aiieissetaveie wale gee tes wine 441, 443, 444, 445 Burchett v. U. S., 194 Fed. 84............ 82, 100, 383, 385, 391 Burdick v. U. S., 236 U. 8. 79; 59 L. Ed. 476............. 227 Burford, ex parte, 38 Cranch. 448; 2 L. Hd. 495............ 8 Burke, Cross v., 146 U. S. 82; 36 L. Ed. 896.............. 342 Burke, Davis v., 179 U. 8. 399; 45 L. Hd. 249......... 111, 433 Burkhardt, in re, 33 Fed. 25............. ccc cece eeeeees 29 Burns, in re, 113 Fed. 987.0... 0... ccc cece cece nee eeece 427 Burton v. U. S., 142 Fed. 57..............4. 152, 164, 174, 311 Burton v. U. S8., 196 U. S. 288; 49 L. Ed. 482..... 2....289, 299 Burton v. U. 8., 202 U. 8. 344; 50 L. Ed. 1057........ nanos L Gane iene Mee ae ae Aenea daw: 129, 216, 217, 314 Bush v. Kentucky, 107 U. 8. 110; 27 L. Ed. 354..... 72, 73, 88 Buskirk, ex parte, 72 Fed. 14....... ee ee 362, 440 C Cabell, West v., 153 U.S. 78; 38 L. Ed. 643............. 8, 10 Cady, Bassing v., 208 U. S. 386; 52 L. Ed. 540. .62, 63, 68, 206 Caha v. U. §., 152 U. S. 211; 38 L. Ed. 418............ 147, 194 Cain, in re, 209 Fed. 40...........-..... Macadencamness 230, 231 Caldwell, Carfer v., 200 U. S. 293; 50 L. Hd. 488.......... 433 Caldwell v. Texas, 187 U. 8. 692; 84 L. Hd. 816........... 293 Caliechio v. U. S., 189 Fed. 305. ... 2... ...... 0. eee eee ene 330 California, Hurtado v., 110 U. S: 516; 28 L. Ed. 232. .298, 296 California, McNulty v., 149 U. S. 645; 37 L. Ed. 882...293, 366a Callahan v. U. S., 195 Fed. 924.......... 0.0.0 eee eeee 211, 284 350 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Callan v. Wilson, 127 U. S. 540; 32 L. Ed. 223............ 241 Campbell v. U. S., 221 Fed. 186...............000000, 254, 289 Cannon v. U. S., 118 U. 8. 355; 29 L. Ed. 561............. 368 Cannon v. U. S., 116 U. 8. 55; 29 L. Ed. 561............... 146 Carfer v. Caldwell, 200 U. S. 298; 50 L. Ed. 488........... 433 Carlisle v. U. S8., 194 Fed. 827...... 107, 192, 270, 274, 275, 381 Carll, ex parte, 106 U. 8. 521; 27 L. Ed. 288........... 427, 428 Carper v. Fitzgerald, 121 U. S. 87; 30 L. Ed. 882.......... 422 Carrier, Ii re oT Wed, STi vecuexsesesenerennceime nine ae 58 Carroll v. U. S., 154 Fed. 425....... 0. ..... ccc cee ees 275, 380 Carter v. McClaughry, 183 U. S. 365; 46 L. Ed. 236........ Dutt gabe aiuto dele ieee aaaiee Co can ats heciecs 217, 368, 411 Carter v. Roberts, 177 U. S. 496; 44 L. Ed. 861............ 421 Carter v. Texas, 177 U. 8. 442; 44 L. Ed. 839....... 82, 88, 379 Carver v. U.S., 160 U. 8. 553; 40 L. Ed. 532.............. 382 Castner v. Pocahontas Collieries Co., 117 Fed. 184........ 27 Castro v. De Uriarte, 16 Fed. 93.......: PR acpi Ne gueenarate TaD 40 Chadwidk vy. UW. S., 141 Wed: 85) ..0 caussiecdensnisn'e Sans SRS a yaya iol eet tacaritaal 105, 156, 158, 183, 192, 274, 275, 326 Chandler v. Rutherford, 101 Fed. 774..........0...00eees 10 Chapman, in re, 166 U. S. 661; 41 L. Ed. 1154..... 2138, 381, 446 Chapman, in re, 156 U. 8. 211; 39 L. Ed. 401.......... 429, 430 Charles v. U. S., 213 Fed. 717......... 0... c cece eee ce eens 301. Charlton v. Kelly, 229 U. S. 447; 57 L. Hd. 1274........... spacevaiulae ale Wie GOdre eee wie etc iamre ee ereRON 43, 45, 67, 105, 428, 434 Charlton, ex parte, 185 Fed. 880................<81, 48, 44, 46 Chicago, St. P. M. & O. R. Co. v. U. S., 162 Fed. 835....... 162 Ching v. U. S., 118 Fed. 538.............0. cece ee eee 165, 297 Chitwood v. U. 8., 178 Fed. 442....... 0... cece eee e eee eee 212 Choy Gum v. Backus, 223 Fed. 487..........--0-. ee eee 406 Christensen, Crowley v., 187 U. S. 86; 34 L. Ed. 620....... 411 Christian, in re, 82 Fed. 199............. cee cece ee ee eee 340 Claasen, in re, 140 U.S. 200; 35 L. Hd. 409............... 114 Claassen v. U. S., 142 U. S. 140; 35 L. Ed. 966..... 303, 317, 377 Clark v. Pennsylvania, 128 U. 8. 395; 32 L. Hd. 487....... Ea tas Wap Gola Ra av cies Yas te teen eh TANS weak AbRicotaretra eels aes 366a, 379, 391 Clark v. U. S., 211 Fed. 916............0. cece eee ee eee 152 Clawson v. U. S., 114 U. S. 477; 29 L. Ed. 179... .81-92, 96, 256 TABLE OF CASES 351 (REFERENCES ARE TO SECTIONS) Clement v. U. S., 149 Fed. 305.......... 133, 136, 194, 284, 358 Clise, Barth v., 79 U. S. (12 Wall.) 400; 20 L. Ed. 393..... 413 Clough, Munson v., 196 U. 8. 364; 49 L. Ed. 515. .63, 66, 67, 70 Clune v. U. S., 159 U. S. 590; 40 L. Ed. 269........... 379, 380 Clyatt v. U. 8., 197 U. 8. 207; 49 L. Ed. 726...... 311, 379, 384 Cochran v. U.8., 157 U.S. 286; 39 L. Ed. 704. .137, 177, 278, 331 Coffin v. U. S., 156 U. S. 432; 39 L. Ed. 481...158, 168, 173, 300 Cohen v. U. S., 214 Fed. 238......... 0... cece cece ee eee 1, 211 Collins, ex parte, 154 Fed. 980........... 0... c cece eens 408 Collins v. Johnston, 237 U. 8. 502; 59 L. Ed. 1071....°.... 483 Collins v. O’Neil, 214 U. S. 113; 58 L. Ed. 933.......... 45, 46 Colt v. U. 8., 190 Fed. 305......... 0.0 ccc cece ce eee 301, 329 Compton v. Alabama, 214 U. 8.1; 53 L. Ed. 885.......... 65 Connors v. U. S., 158 U. S. 408; 39 L. Ed. 1033... .152, 153, 252 Connolly, Robb v., 111 U. S. 624; 28 L. Ed. 542........... 432 Conrad v. U. S., 127 Fed. 798.........0. ccc cece eee e eens 162 Considine v. U. 8., 112 Fed. 342.....:.............05 161, 382 Consolidated Rendering Co. v. Vermont, 207 U. S. 541; 52 TWO, 2 Usiccinea eae ee Bae tes ee eee RSE 4 Cook v. Hart, 146 U. S. 183; 86 L. Ed. 934,......... 63, 69, 4380 Cook v. U. 8., 188 U. S. 157; 34 L. Ed. 906................ 123 Cook v. U. S., 159 Fed. 919............ 00. cee eee ee eens 358 Coomer v. U. 8., 213 Fed. 1............... 8.000 06---178, 201 Corbin v. U. S., 205 Fed. 278.............0. ec eee eee 188, 204 Corenman v. U. S., 188 Fed. 424............. 2 cece eee 322 Cortes, in re, 136 U. S. 330; 34 L. Hd. 464...... 47, 49, 428, 434 Cosgrove v. Winney, 174 U. S. 64; 48 L. Ed. 897........ 22, 46 Counselman v. Hitcheock, 142 U. 8S. 547; 35 L. Ed. 1110.. Sah der ha Siw at idole ae Wee Bais ed oe RUGS Sala lens 273, 426 Count de Toulouse Lautrec, in re, 102 Fed. 878..... 47, 406, 435 Coy, in re, 127 U. S. 781; 32 L. Ed. 274.................. 427 Craemer v. Washington, 168 U. 8. 125; 42 L. Ed. 407. .342, 406 Crain v. U. S., 162 U. S. 625; 40 L. Hd. 1097.............. Uiey dak cshosdas @ePee aes mesg Re 148, 152, 222, 295, 299 Crawford v. U. 8., 212 U. S. 183; 53 L. Ed. 465........... : sraeda on Aaa a Renee rea ae ene 163, 253, 364, 382, 305 Creecy, Marbles v., 215 U. S. 63; 54 L. Hd. 92...... 63, 65, 67 Creecy, Pierce v., 210 U.S. 387; 52 L. Ed. 11138... .66, 70. 434 352 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Cross v. Burke, 146 U. S. 82; 36 L. Ed. 896............... 342 Cross v. North Carolina, 132 U. S. 181; 33 L. Ed. 287...... 217 Crouch, ex parte, 112 U. S. 178; 28 L. Ed. 690............ 429 Crowley v. Christensen, 137 U. 8. 86; 34 L. Ed. 620........ 411 Crowley v. U. S., 194 U. S. 461; 48 L. Ed. 1075......... 82, 88 Crumpton v. U. S., 188 U. 8. 361; 34 L. Ed. 958... .283, 314, 381 Cuddy, in re, 131 U. 8. 280; 33 L. Ed. 154...........,. 393, 426 D Daniels v. U. S., 196 Fed. 459.............. 0c cece 273, 322 Davey v. U. S., 208 Fed. 287..... As iietitetaed ene 162, 172, 318 Davis v. Beason, 133 U. 8. 333; 33 L. Ed. 687......... 426, 428 Davis v. Burke, 179 U. 8. 399; 45 L. Hd. 249.......... 111, 433 Davis v. South Carolina, 107 U. 8. 597; 27 L. Ed. 574...... 77 Davis v. Texas, 1389 U. 8. 651; 35 L. Ed. 300.............. 366a Davis v. U. §., 165 U. 8. 378; 41 L. Ed. 750........... 296, 299 Davis v. U. S., 160 U. S. 469; 40 L. Ed. 499............... 295 - Davis v. U. S., 104 Fed. 186.............. cece eee eee eee 123 Davison, in re, 21 Fed. 618.............. cece eee ee eee 436 Dawson, in, #6, 101 Ped, 959 iiac.ccasesneetaivcuaeanecs 53 Dawson, ex parte, 83 Fed. 306...................22008- 65, 67 Dealy v. U. S., 152 U. 8. 5389; 38 L. Ed. 545........... 214, 304 De Bara-v. U. S., 99 Fed. 942.............. 2.2 e ee eee 428, 487 Debs, in re, 158 U. S. 564; 39 L. Hd. 1092............. 426, 440 Delaware v. Emerson, 8 Fed. 411..................-.005- 77 Delaware, Neal v., 103 U. 8S. 370; 26 L. Ed. 567........... 82 De Lemos v. U. S., 107 Fed. 121.............. 22. eee eee 373 De Lemos v. U. 8., 91 Fed. 497. ....... 2... e eee eee cee 154 De Molli v. U. S., 144 Fed. 363................5. 174; 332, 365 De Uriarte, Castro v., 16 Fed. 93............0e eee eeee 40 Devine, Morgan v., 237 U. S. 632; 59 L. Ed. 1153......... 357 Diaz v. U. S., 223 U. S. 442; 56 L. Ed. 500..... Bs Oath ou 217, 257 Dick, Whitney v., 202 U. S. 182; 50 L. Ed. 963........ 875, 400 Dickinson v. U. S., 159 Fed. 801............-.065 111, 150, 241 Diggs v. U. S., 220 Fed. 545.00... 0... ccc cece eee ee eee .. 270 Dillard v. U. S., 141 Fed. 308............... 156, 192, 281, 385 Dimmick v. Tompkins, 194 U. 8S. 540; 48 L. Ed. 1110. ..359, 421 Dimmick v. U. S., 185 Fed. 257...... 138, 274, 295, 298, 377, 395 ee ee He TABLE OF CASES 353 (REFERENCES ARE TO SECTIONS) Dimmick v. U. 8., 121 Fed. 638.......... 146, 147, 179, 2538, 275 Dimmick v. U. S., 116 Fed. 825............. 0.2.2.2... 308, 330 Dolan v. U. 8.; 183 Fed. 440: 20.00. cc seeeie ce cie eens 156, 304 Dolan v. U. S., 123 Fed. 52.0.0... 0.0... cee cee cee 2538, 300 Dolan ¥. U. Sy 116 Ped, 518. c6sscccrexsdeskaserxane sens 254 Dollison, Ohio v., 194 U. 8. 446; 48 L. Ed. 1062........ 298, 429 _ Donaldson v. U. S., 208 Fed. 4..... yacht eld anaheniearatins 881, 382 Dorr, ex parte, 44 U.S. (3 How.) 1038; 11 L. Ed. 514....... 387 Dorsey v. U. S., 101 Fed. 746................0.. 176, 299, 303 Dow, Maxwell v., 176 U. 8. 581; 44 L. Ed. 597............ 293 Dow v. U. S., 82 Fed. 904.......... 0c. cece eee ee eee 186, 331 Dowdell v. U. S., 221 U. S. 325; 55 L. Ed. 753..... 190, 257, 262 Doyle v. U. S8., 10 Fed. 269........... 00 -ee beeen eee 288, 315 Drew v. Thaw, 285 U. 8. 482; 59 L. Ed. 802......... 62, 65, 66 Dreyer v. Illinois, 187 U. 8S. 71; 47 L. Ed. 79......... 207, 366a Drury v. Lewis, 200 U. 8. 1; 50 L. Ed. 343............... 433 Duff v-U:-8.; 185: Ped. W0La ie poe oe ewe Se Ge aes 311 Dunbar v. U. 8., 156 U. S. 185; 39 L. Ed. 390. .164, 180, 321, 330 Duncan, in re, 139 U. S. 449; 85 L. Ed. 219.,............. 430 Duncan v. Missouri, 152 U. S. 377; 38 L. Ed. 485......... 366a Dunlap v. U. 8., 165 U. S. 486; 41 L. Ed. 799. .178, 201, 202, 275 Durland v. U. 8., 161 U. S. 306; 40 L. Ed. 709............ Gu wer arena teed Se Acanen aie eee mane na 152, 158, 168, 192 Durston, McKane v., 153 U. 8. 684; 38 L. Ed. 867......... sia nevebekuasieviesester se ixsaeeaes 20, 298, 386, 421, 423 Dwyer v. U. S., 170 Fed. 160................. 0000 ee 322, 358 Dyar v. U. 8., 186 Fed. 614.......... 0... cece eee ee eee 141, 353 Dynes v. Hoover, 20 How. 65; 15 L. Ed. 838.............. 436 E Eaton v. West Virginia, 91 Fed. 760........ 638, 65, 70, 483, 434 Ebeling v. Morgan, 237 U. S. 625; 59 L. Hd. 1151......... 357 Eckart, in re, 166 U.S. 481; 41 L. Ed. 1085............... 427 Edelstein v. U. 8., 149 Fed. 636.............5005 271, 278, 393 Edgington v. U. S., 164 U. S. 361; 41 L. Ed. 467..... gece 279 Eilenbecker v. Plymouth County, 134 U. 8. 31; 33 L. Ed. 801 443 Elias v. Ramirez, 215 U. S. 398; 54 L. Hd. 258......... 43, 49 Elliott, Brown v., 225 U. 8. 392; 56 L. Hd. 1136...... 124, 237 354 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Emanuel v, U.S. 196 Ped. 81% cose sexes scence deeraseecs 250 Emerson, Delaware v., 8 Fed. 411..............c00.eceee 77 Enders v. U. §., 187 Fed. 754.........ccccsevcecceeecees 385 Endleman v. U. S., 86 Fed. 456............ 0. cccececueee 297 Epstein v. U. §., 196 Ped. 354............ccceccecesaces 286 ‘Erwin v. U. S., 387 Fed. 470........ 0... ccc ceececceeeceee 382 Evans v. U. 8., 153 U. S. 584; 38 L. Ed. 830.............. bag Coat istyhay leans wists Mle are acape awe a eaeaians 187, 163, 169, 317, 358 Ewing v. U.S., 186 Fed. 58....... 0.0... ccc cece cece ee uee 165 F Fairfield v. U. S., 146 Fed. 508............ 00.0 cee eeeeees 444 Farmer v. U. S., 223 Fed. 908......... 00. ceeeceeeeeeaee 272 Faust v. U. S., 163 U. 8. 452; 41 L. Ed. 224........... 118, 278 Felton v. U. S., 96 U. S. 699; 24 L. Ed. 875............... 162 Felts v. Murphy, 201 U. S. 128; 50 L. Ed. 689......... 426, 427 Fergus, in re, 30 Fed. 607............. err eae 40 Ferrelle, in re, 28 Fed. 878......... 0.0.0 cece cu cece enue 44 Fielden v. Illinois, 143 U. 8. 452; 36 L. Ed. 224........... 392 Fisher v. Baker, 203 U. 8. 174; 51 L. Ed. 142............. 422 Fiske, ex parte, 113 U. 8. 713; 28 L. Ed. 1117........... 1, 426 Fitzgerald, Carper v., 121 U. 8. 87; 30 L. Ed. 882........ 442 Fitzpatrick v. U. 8., 178 U. 8. 305; 44 L. Ed. 1078......... 161 Fleming, Howard v., 191 U. 8. 126; 48 L. Ed. 121......... 433 Flickinger v. U. S., 150 Fed. 1..........0 00... ccc eee eee ee 318 Flood, Hofstot v., 218 U. 8S. 665; 54 L. Ed. 1201........... 62 Floren v. U. 8., 186 Fed. 961..............0.005. 187, 178, 332 Florida, Tarrance v., 188 U. 8. 519; 47 L. Ed. 572......... 88 Foerster v. U. S., 116 Fed. 860........... 0.20.0. 000 168, 219 Fong Yue Ting v. U. S., 149 U. S. 698; 37 L. Ed. 905..... 47 Forsyth, Barton v., 20 How. 532; 15 L. Ed. 1012.......... 295 Foster v. U. S., 188 Fed. 305............. 20. c eee eee 295, 297 Foster v. U. S., 178 Fed. 165................0005 148, 278, 281 Fox v. Ohio, 5 How. 471; 12 L. Ed. 218...............0055 217 Francis v. U. §., 152 Fed. 155........ 0... ccc cee eee 298, 336 Frank v. Mangum, 237 U. 8. 309; 59 L. Ed. 969....... 410, 433 Frank v. U. S., 192 Fed. 864........ 0... ccc eee eee eee eee 372 Franklin v. U. 8., 216 U. 8. 559; 54 L. Hd. 615........... 393 x TABLE OF CASES 355 (REFERENCES ARE TO SECTIONS) Franklin ‘vy. U. $8, 193 Wed. 88@. 0.0 .00sc0eesqesceaws eons 330 Frederich, in re, 149 U. S. 70; 87 L. Ed. 658.............. 7426 Frisbie v. U. S., 157 U. S. 160; 39 L. Ed. 657.......... 107, 115 G Gammony WéSh Vain ic on oeki oe sid widen hears Rem Kee eens Gallot v. U. S., 87 Fed. 446...............0. 253, 274, 340, 385 Gardes v. U. S., Bi Medi ease enemmane f Seetys Base be a Site a eaceteuti isl oe 115, 156, 157, 207, 274, 303, 340, 358 Garland, ex parte, 71 U. 8. (4 Wall.) 333; 18 L. Ed. 366.... 227 Garland v. Washington, 232 U. 8S. 642; 58 L. Ed. 772...... 222 Garst v. U. S., 180 Fed. 839............ 294, 295, 331, 380, 395 Gavieres v. U. S., 220 U. 8. 338; 55 L. Hd. 489............ 217 Geiger v. U. S., 162 Hed. 844 oc ioicaah ia asia haiok omen 116 Georgia, Aliph ¥, 166 U. S. 138; 41 L. Ed. 949........... 390 Georgia, Brantley v., 217 U. 8S. 284, 54 L. Ed. 768....... 209 Georgia, Lascelles v., 148 U. S. 587; 37 L. Ed. 549...... 61, 68 Georgia, Nobles v., 168 U. S. 398; 42 L. Hd. 515. .186, 364, 366a Gibson v. Mississippi, 162 U. 8. 565; 40 L. Ed. 1075... .72, 366a Gius v. U. S., 141 Fed. 956............. cece ccc ee eens 241 _Glaser, in re, 176 Fed. 702........... 0... cee eee eet eee 43 Glasgow v. Moyer, 225 U. S. 420; 56 L. Ed. 1147...... “428, 430 Glickstein v. U. S., 215 Fed. 90......... 0. cesses eee eee 378 Glickstein v. U. 8., 193 Fed. 51... scsctetesnecvadieway a woes 385 Glover v. U. §., 147 Fed 426): on. cawianteniieaniwcars 278, 331 Glucksman v. Henkel, 221 U.S. 508; 55 L. Ed. 830...... 39, 43 Goldman v. U. S., 220 Fed. 57........ 0... scene ee eee eee 311 Goldsby v. U. S., 160 U. S. 70; 40 L. Hd. 343............. jing donate AeA Mae ata Oe ER OS 264, 267, 278, 284, 299 Goll v. U. S., 151 Fed. 412...... sy aneetac peel Cana sah ite) Seisuiaels te 358 Goll v. U. S., 166 Fed. 419......... cece cece cece ee eee 311 Gompers v. Bucks Stove & Range Co., 221 U. S. 418; 55 L. Rds 19 birssan vows Ea Oreos ehaGi asa ewes 441, 443-444, 445 Gonzales v. Cunningham, 164 U. 8. 612; 41 L. Hd. 572...... BoP ahi sre ta dalentars at zens 4 Gia ctasts sat aaoceeaayavel auaker on avexadonsi 360, 392, 428 Goode v. U. S., 159 U. 8. 663; 40 L. Ed. 297........4...... 317 Gordon, ex parte, 66 U. 8S. 503; 17 L. Ed. 184............. 375 Gould v. U. S., 209 Fed. 780........ 0... ccc cece eee 311 Byrne’s Crim. Proe.—25 356 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Gourdain v. U. S., 154 Fed. 453..................000, 297, 299 Gourko v. U. S., 153 U. S. 188; 88 L. Ed. 680............. 331 Grafton v. U. S., 206 U. S. 333; 51 L. Ed. 1084........ 208, 210 Graham, in re, 138 U. S. 461; 34 L. Ed. 1051.............. 433 Graham v. West Virginia, 224 U. S. 616; 56 L. Ed. 917.... 209 Grant v. U. S., 227 U. 8. 74; 57 L. Ed. 423............ 272, 387 Graves v. U. S., 150 U. S. 118; 87 L. Ed. 1021........... 275 Great Northern R. Co. v. U. S., 208 U. 8. 452; 52 L. Ed. 567 197 Greene, in re, 134 U. S. 877; 83 L. Ed. 951............... 426 Greene, mire, G2 Wed. 104. 0.5 s0cpecnvebrexguintecavess 100 Greene v. Henkel, 183 U. 8. 249; 46 L. Ed. 177...... 27, 30, 485 Greene v. U. S., 154 Fed. 401.......... 387, 45, 46, 236, 302, 358 Gregory, in re, 219 U. S. 210; 55 L. Ed. 184............... 427 Grey v. U.S., 172 Fed. 101..................... 146, 321, 381 Grice, Baker v., 169 U. S. 284; 42 L. Ed. 748............. 433 Griggs ¥.40; Say TGS Weds B12, a iin a co maaee wnvanse eens 253 Grimley, in re, 1387 U. S. 147; 34 L. Ed. 686.............. 436 Grimm v. U. S., 156 U. S. 604; 39 L. Ed. 550............. 176 Grin, in re, 112 Fed. 790......... 2.00... cece cece eee 42, 44 Grin v. Shine, 187 U. 8. 181; 47 L. Ed. 180. ..39, 44, 47, 49, 484 Grunberg v. U. §., 145 Fed. 81......... 0.00. cece ceee ees 396 H Haas v. Henkel, 216 U. S. 462; 54 L. Ed. 569.............. isin dcp Sabet slnse: ebad decease egies ates dees 30, 31, 31a, 123, 147 Haas v. Henkel, 166 Fed. 621........ 20... 0.00. eee cees 115, 411 Hackfeld & Co. v. U. S., 141 Fed. 9.......... 0.2.20. 2 008 389 Haddox v. Richardson, 168 Fed. 635........ seta dere tr 346, 419 Hale v. Henkel, 201 U. S. 48; 50 L. Ed. 652. ..3, 4, 101, 272, 278 Hall v. U. 8., 168 U. 8. 633; 42 L. Ed. 607.............. 170 Hall v. U. S., 150 U. S. 76; 87 L. Ed. 1008................ 274 Halligan v. Wayne, 179 Fed. 112................ 357, 358, 437 Hallock v. U. S., 185 Fed. 417.......... 0... cece eee ee 161 Hammond Lumber Co. v. Sailors Union of the Pacific, 167 Feds809 son sexe wie nid farce sw ea te ee oe eee erases 271 Hammond Packing Co. v. Arkansas, 212 U. 8. 322; 53 L. Ed. : DBO: diveuwuewse eae gee eae aie Be caicléce’d dale aden SH aMAMNAR NE Hanley v. U. S., 186 Fed. T11........... ccc eee e eee nes 1738 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Hanley v. U. S., 123 Fed. 849........ 00... c. cee cee cee ee Hardesty v. U. S., 168 Fed. 25.............. 146, 317, 321, ‘Hardesty y. U.S. 164 Wed, 420. 02 cvecesecevesds avecsexes Hardy v. U. S., 186 U. 8. 224; 46 L. Ed. 1187......... 119, Harkrader v. Wadley, 172 U. 8. 148; 43 L. Hd. 399... .421, Harlan, ex parte, 180 Fed. 119............ 84, 97, 105, 107, Harlan v. McGourin, 218 U. S. 442; 54 L. Ed. 1101....... ibs guano cldvdsseeay na Sica Sova OV eesdlensla dSacoeanacaneuessuesnases 97, 426, 427 Harless v. U. S., 92 Fed. 858. ........ 0.0. c cece cee eee eee Harman v. U.S., 50 Fed. 921.......... 0. cee cee eee cee ee Harper v. U. S., 170 Fed. 885.............00 0c eens 137, Harrison v. U. S., 163 U. S. 140; 41 L, Ed. a0%: bremberecaieras Harrison v. U. S., "200 P60: (6625 i:dn gimme wactacewe waren aos ewlars Harrold v. Okiahoma, 169 Peds 40s cccae cacraecee ss 278, Hart, ex parte, 63 Fed. 249....... prt teeeeete teense 66, Hart v. U. S., 183 Fed. 368................00 00 238, 244, Hart v. U. S., 84 Fed. 799...... sid sini stnind a aut 297, 314, Hartman v. U. S., 168 Fed. 30..................-6. 5, 156, Harvey v; U.S., 159 Hed .:419.... ccc se eeneecee peace eae ee Haubert, Beavers v., 198 U.S. 77; 49 L. Ed. 950.......... Hauger v. U. S., 173 Fed. 54.......-..-..0000 eee 137, 167, Hawkins v. U. S., 116 Fed. 569.............. 251, 253, 254, Haynes v. U. S., 101 Fed. 817............... ',.. 156, 336, Hedderly v. U. S., 193 Fed. 561............. 295, 311, 322, Heike v. U. S., 217 U. S. 423; 54 L. Ed. 821.............. Heike v. U. S., 227 U.S. 181; 57 L. Ed. 450........... 159, Heike v. U. S., 192 Fed. 83..............- 22 e ee eee 159, Hendrix v. U. S8., 219 U. 8. 79; 55 L. Hd. 102............. Henkel, Beavers v., 194 U. S. 73; 48 L. Hd. 882..... 28, 30, Henkel, Benson v., 198 U. 8. 1; 49 L. Hd. 919............ Henkel, Glucksman v., 221 U. 8S. 508; 55 L. Ed. 830... .39, Henkel, Greene v., 183 U. 8. 249; 46 L. Ed. 177.. .27, 30, Henkel, Haas v., 166 Fed. 621................200005 115, Henkel, Hale v., 201 U.S. 43; 50 L. Ed. 652. .3, 4, 101, 272, Henkel, Henry v., 235 U. S. 219; 59 L. Ed. 203........... Henkel, Peckham v., 216 U.S. 483 ; 54 L, Ed..597......... Henkel, Price v., 216 U. S. 488; 54 L. Ed. 581............ Henkel, Wright v., 190 U. S. 40; 47 L. Ed. 948........ 37, 356 TABLE OF CASES ; (REFERENCES ARE TO SECTIONS) Henry, ex parte, 123 U. 8. 372; 381 L. Ed. 174............. 216 Henry v. Henkel, 235 U. 8. 219, 59 L. Hd. 208........... 429 Henry, Keizo v., 211 U. 8. 146; 53 L. Hd. 125............. 426 + Hepner v. U.S., 213 U. 8. 103; 53 L. Ed. 720......... 270, 313 Herres, in re, 33 Fed. 165.............0. 0c aes 40, 43, 44, 49 Herskovitz, in re, 186 Fed. 713........... 0.0 cece cceaes 39 Hibbard: Vv: U.. Sa 1%2: Peds 660. escca vxareusnw secudavieanws 300 Hickory v. U. S., 160 U. 8. 408; 40 L. Ed. 474 ee 297, 300, 385 Hickory v. U. 8., 151 U.S. 303; 88 L. Ed. 170......... 264, 302 Hicks v. U.S., 150 U.S. 442; 87 L. Ed. 1187............. 300 Higgins v. U. §., 185 Fed. 710............. bia) aes w iecaunte 275, 311 Hillegass v. U. S., 188 Fed. 199.......... 82, 192, 199, 311, 332 Hillman vy. U. 8., 192 Fed. 264.............. 105, 183,-192, 264 Hitchcock, Counselman v., 142 U. 8. 547; 35 L. Ed. 1110... Seneca aa ees nes te teem ee neces 0273, 426 Hitz, ex inte, 111 U.S. 766; 28 L. Ed DOD sia gs atieia dase 375 Hodge v. U. S., 191 Fed. 165.......... 02.0. e eee e eee eee 385 Hodgson v. Vermont, 168 U. S. 263; 42 L. Ed. 461......... 298 Hoeffner v. U. S., 87 Fed. 1005...................042- 19, 385 Hoffstot, ex parte; 180 Fed. 240......... cee eee eee eee 62 Hofstot v. Flood, 218 U. 8. 665; 54 L. Hd. 1201............ 62 Hogue v. U. S., 192 Fed. 918.0... 0.0... 0c cee ede cece 145 Hoke v. U. S., 227 U. 8. 308; 57 L. Hd. 528........... 118, 314 ‘Holden v. Minnesota, 187 U. S. 483; 34 L. Hd. 734......... 342 Holder v. U. S., 150 U. 8. 91; 37 L. Hd. 1010..... 282, 322, 382 Holmgren v. U. 8., 217 U. 8. 509; 54 L. Ed. 861.......... islcdchanh chetsbevc attra been cope otek pecuucintea tara eran tae Sterna «0h 117, 329, 381, 384 Holmgren v. U. 8., 156 Fed. 489................005 . 299, 320 Holt v. U.S., 218 U. 8. 245; 54 L. Hd. 1021.............. Rigiacc iene MU AGL ves tcdanbre eamnnranh heraiet 5, 105, 135, 162, 272, 215, 327 Home for Incurables v. New York, 187 U. S. 155; 47 L. Ed. TAT ccrogragricnctierdte ks ses Aes e eae ealeerema Bomunem res 366a- Hooper v. Remmel, 165 Fed. 886..........--.00e eer eeees 430 Hopkins v. McClaughry, 209 Fed. 821............-+. ene 426 Hopt v. Utah, 120 U. S. 480; 80 L. Ed. 708...........-.-- 254 Hopt v. Utah, 114 U. S. 488; 29 L. Ed. 183.............-- 391 Horn v. Mitchell, 223 Fed. 549............. 00sec eee ees 406 Horn v. U. S., 182 Fed. 721............- 169, 299, 300, 301, 311 TABLE OF CASES 359 (REFERENCES ABE TO SECTIONS) Horner V. U. 8., 148 U. 8. 207; 86 L. Hd. 126.............. 435 Horner v. U. 8., 143 U. 8. 570; 36 L. Ed. 266.......... 368, 426 Hotema v. U. 8., 186 U.S. 413; 46 L. Ed. 1225.. . .216, 301, 379 Houston v. U. S., 217 Fed. 852 Seang euaetastaerels st oaleeia aie 163, 237 Howard v. U.S., 75 Fed. 986.......... 0.00 e eee 357, 365, 428 Howard v. Fleming, 191 U. S. 126; 48 L. Ed. 121......... 433 Howard v. Moyer, 206 Fed. 555......... 0... e cece eee 3857 Hoy, Johnson v., 227 U. 8. 445; 57 L. Ed. 497..... 16, 429, 431 Hudson v. Parker, 156 U. 8. 277; 39 L. Ed. 424........... 20 Hughes v. Pflanz, 188 Fed. 980............ 0.0. cece eens 61 Hume v. U. 8.,118 Fed. 689.................... 119, 145, 377 Humes v. U. S., 182 Fed. 485........ 00... cece ee eee 382, 384 Humes v. U. 8., 170 U. 8. 210; 42,L. Ed. 1011......... 314, 377 Hung Hang, ex parte, 108 U. 8. 552; 27 L. Ed. 811........ 421 Hunt v. U.S., 63 Fed. 568.00... 0... ccc cece eee eee eee 19 Hunter v. Wood, 209 U. S. 205; 52 L. Hd. 747............ 433 Hurtado v. California, 110 U. S. 516; 28 L, Ed. 282... .293, 296 Huse, in re, 79 Fed. 805......... 0.0 cece cece eee eee 430 Hyatt v. New York, 188 U.S. 691; 47 L. Ed. 657........ 63, 67 Hyde v. U. 8., 225 U. S. 347; 56 ie Hes eos oes s ia agacbaydhina Mann ited har WES @ ee dnbern ae 82, 123, 124, 129, 237, 320 Hyde v. Shine, 199 U.S. 62; 50 L. Ed. 90................ 438 I i Jasigi v. Van De Carr, 166 U.S. 391; 41 L. Ed. 1045. ..418, 434 Illinois, Dreyer v., 187 U. S. 71; 47 L. Ed. 79....... 207, 366a Illinois, Fielden v., 143 U. 8. 452; 36 L. Ed. 224.......... 392 Illinois, Ker v., 119 U. 8. 486; 30 L. Hd. 421........... 11, 46 Illinois ex rel. McNichols v. Pease, see McNichols v. Pease. . Illinois, Moore v., 14 How. 3; 14 L. Ed. 306.............. 217 Ingraham v. U. S., 155 U. 8. 484; 39 L. Ed. 213........... 156 Interstate Commerce Commission v. Brimson, 154 U. 8. 447; 88 Wi BGs WO4T ese ed aang ernie A Geek Bete ae ss 440 Isaacs v. U. S., 159 U. S. 487; 40 L. Ed. 229........... 284, 299 J Jack v. Kansas, 199 U. 8. 872; 50 L. Hd. 234.............. 273 Jackson, ex parte, 96 U. 8. 727; 24 L. Ed. 877............. 351 360. TABLE OF CASES (REFERENCES ARE TO SECTIONS) Jackson v. U. S., 102 Fed. 473. ..103, 115, 270, 320, 340, 349, 384 Jackson v. U.S., 21 Fed. 85........... ccc ccc cece eee ees 377 Jacobi, ex parte, 104 Fed. 681............. cece eee eee 422 Jacobs v. U. S., 161 Fed. 694...............004. 168, 271, 278 James v. U. S., 170 Fed. 942........ 0. cc ccc cece cee neee 118 Jaycox v. U. S., 107 Fed. 988........ 0... cc cece cence 172 Jennings, in re, 118 Fed. 479............ cee eee ee .. 859 Jewett v. U. S., 100 Fed. 8382.................44. 149, 168, 381 John Gund Brewing Co. v. U. S.,.204 Fed. 17............. 128 John Gund Brewing Co. v. U. S., 206 Fed. 386............ 152 Johnson, ex parte, 167 U. 8. 120; 42 L. Ed. 103......... ll, 69 Johnson, in re, 46 Fed. 477..... LofislaUafiase arse lace "ay ade Gangs eknoner 340 Johnson v. Browne, 205 U. 8. 309; 51 L. Ed. 816........... 46 Johnson v. Hoy, 227 U. S. 445; 57 L, Ed. 497......16, 429, 431 Johnson v. Sayre, 158 U.S. 109; 39 L. Ed. 914............ 436 Johnson v. U. §., 170 Fed. 581........... eee eee eee eens 299 Johnson v. U. S., 225 U.S. 405; 56 L. Ed. 1142..... ...257, 391 Johnson v. U. S., 157 U. 8. 820; 39 L. Ed. 717......... 300, 314 Johnson v. U. S., 215 Fed. 679.222... ec cece ees 358, 395 Johnson v. U. S., 163 Fed. 30............ 2. cece eee ee eee 382 Johnson v. U. S., 158 Fed. 69........... 0. cece cece eee ee 154 Johnston, Collins v., 237 U. 8. 502; 59 L. Hd. 1071........ 433 Johnston v. U. S., 154 Fed. 445.......... cece cece eee eee 274 Johnston v. U. S., 87 Fed. 187........... 0c eee eee 118, 137 Jones, Reid v., 187 U. S. 153; 47 L. Ed. 116.............. 422 Jones v. U. 8., 187 U. S. 202; 34 L. Ed. 691............-.. 131 Jones v. U.S., 209 Fed. 585.0... 0... . cc cece eee eee eee ee 444 Jones v. U. S., 179 Fed. 584........... 00.00 c eee 118, 187, 381 Jones v. U. S., 162 Fed. 417............-505. 1, 92, 99, 237, 264 Jones v. U. S., 27 Ped. 447......... 00s cece cece 146, 177, 181 Joplin Mercantile Co. v. U. S., 286 U. 8. 581; 59 L. Ed. 705 pe se kowl n LAG oa GSM A ee eee 143, 194 Jugiro, in re, 140 U. 8. 291; 85 L. Hd. 570............. 423, 426 Justice, Mahon v., 127 U. S. 700; 32 L. Hd. 283.........-- 69 K Kahn, in re, 204 Fed. 581........... ccc eee cece ence eee 445 Kaine, in re, 14 How. 103; 14 L, Ed. 345.............+ 44, 47 TABLE OF CASES 361 (REFERENCES ARE TO SECTIONS) Kalen v. U. S., 196 Fed. 888............. cece cee cee eeee 885 Kansas, Jack v., 199 U. 8S. 372; 50 L. Ed. 234............ 273 Kansas, Lowe v., 163 U. S. 81; 41 L. Ed. 78.......... 293, 443 Kaplan Bros., in re, 213 Fed. 758.............00eeeee 273, 445 Karstendick, ex parte, 93 U. S. 396; 23 L. Hd. 889. .336, 338, 340 Kaufman v. U. §., 212 Fed. 613...........ccceeeee eee e ee 172 Kaufman v. U. §., 113 Fed. 919........ 0... cece ces ee eee 382 Kaye v. U.S., 177 Fed. 147............. cc cece eee eee 303, 311 Keck v. U. 8., 172 U. S. 435; 43 L. Ed. 505........... 139, 175 Keerl v. Montana, 213 U..S. 185; 53 L. Ed. 784............ 207 Keizo v. Henry, 211 U. 8S. 146; 53 L. Ed. 125............. 426 Kemmler, in re, 136 U. 8S. 486; 384 L. Hd. 519......... 349, 366a Keliher v. U. S., 193 Fed. 8............00 0c eee 178, 330, 364 Keller v. U. S., 168 Fed. 697.............. cee eee eens 180, 297 Kelley, in re, 25 Fed. 268........ 0... cc cece eee ee eee nei, AO Kellogg v. U. 8., 103 Fed. 200.............. 0. cece eee ee 314 Kelly, Charlton v., 229 U. S. 447; 57 L. Ed. 1274......... BESS Ges eel SiR ORS aS oe a Bape uae as aU 43, 45, 67, 105, 428, 434 Kelly v. U. S., 27 Fed. 616................ dered ween 207, 362 Kent v. Porto Rico, 207 U.S. 113; 52 L. Ed. 127........... 295 Kentucky, Bush v., 107 U. 8. 110; 27 L. Ed. 354...72, 78, 88 Kentucky v. Dennison, 65 U. S. 66; 16 L. Ed. 717...... 60, 61 Kentucky v. Powers, 201 U. S.1; 50 L. Ed. 633........ 72, 366a Kepner v. U. S., 195 U. S. 100; 49 L. Hd. 114.......... 215, 370 Ker v. Illinois, 119 U. 8. 486; 30 L. Ed. 421............. 11, 46 Kerr v. Shine, 136 Fed. 61........... 0... cece e eee eee eee 131 Kerrch v. U. S., 171 Fed. 366...............2 00.0 eee 366, 389 Kettenbach v. U. 8., 202 Fed. 3877....... 250, 276, 299, 822, 395 Kharas v. U. 8., 192 Fed. 503............ 00. cee eee eee 250, 254 Kiev, U.S. 27 Fed, 851 cscs wre nite ce saes oe< 257, 363 King v. U. S., 112 Fed. 988...........-..0.50000- 270, 321, 330 Kirby v. U. S., 174 U. 8. 47; 48 L. Ed. 809........... 200, 260 Kirk v. U..§., 192 Ped. 273.006... cece e sees eee eae 442, 444 Kirkman v. MeClaughry, 160 Fed. 436............... 858, 436 - Knote v. U. S., 95 U. S. 149; 24 L. Hd. 442............. ... 227 Knowles v. U. S., 170 Fed. 409.............. ee ee eeee 152, 295 Kohl y. Lehlback, 160 U. 8..293; 40 L. Ed. 482... .253, 293, 433 Konda v. U. S., 166 Fed. 91.............0 ee eeeee 139, 164, 296 362 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Kopel, in re; 148 Bed. 508. 00.5 os cen uasuyauewensaens 58, 408 Krause v. U. S., 147 Fed. 442.. .159, 250, 254, 298, 358, 379, 397 Krojanker, in re, 44 Fed. 482............. ccc cee ceeeees 49 Kulp v. U. §., 210 Fed. 249.......... ees ieee 156, 322 Kurtz v. Moffett, 115 U. S. 487; 29 L. Ed. 458............ 10 L Lambert v. Barrett, 157 U. 8S. 697; 89-L. Ed. 865.......... 433 Lancaster, in re, 187 U. 8S. 393; 34 L. Ed. 713............. 429 Lane, in re, 135 U. S. 443; 34 L. Hd. 219................. 400 Lane, ex parte, 6 Fed. 34...............c0c cece eee 39, 40, 47 Lang v. U. S., 183 Fed. 201.......... 0.0 gece eee ee cees 278 Lange, ex parte, 85 U. S.. (18 Wall.) 163; 21 L. Ed. 872.. saa aae ates Shae cho) Olat nel ndedsh Cadape ayes gel Shag dees 205, 362, 426, 427 La Page, ex parte, 216 Fed. 256.................00005 seg. 8 Larkin v. U. S., 107 Fed. 697.00... ... ccc cece eee eee 118, 168 Lascelles v. Georgia, 148 U. 8. 587; 87 L. Ed. 549....... 61, 68 Latham v. U. S., 210 Fed. 159... 0.0... eee eee 284 Leber v. U. S., 170 Fed. 881........ 20... ccc c ccc eee eens 272 Ledbetter v. U. 8., 108 Fed. 52............. 0.000 cues 107, 115 Lee v. U. S., 156 Fed. 948...... 0.0... cece cece e eee ees 184 Lee Dock v. U. S., 224 Fed. 481......... 0.0.0... c cence eee 159 Leeper v. Texas, 139 J. S. 462; 35 L. Ed. 225... .292, 366a, 391 Lees v. U. 8., 150 U.S. 476; 37 L. Ed. 1150............... 270 Lehlback, Kohl v., 160 U. S. 293; 40 L. Ed. 482. ..253, 293, 433 Lehman v. U. 8., 127 Fed. 41........... 152, 153, 154, 317, 321 Lemon v. U. S., 164 Fed. 9538........... 0.2.2.2 cee 146, 153 Lem Woon v. Oregon, 229 U. 8. 586; 57 L. Ed. 1340....... , 293 Lewellen v. U. S., 223 Fed. 18........... 0. cece eens 1538, 329 Lewis, Drury v., 200 U. 8.1; 50 L. Ed. 348................ 433. Lewis v. U. S., 146 U. S. 370; 36 L, Ed. 1011...... 251, 257, 382 Lillis v. U. S., 190 Fed. 580..... 0.0... cc eee eee eee es 151, 288 Lincoln, in re, 202 U. 8. 178; 50 L. Ed. 984............... 430 Ling Su Fan v. U. S., 218 U.S. 302; 54 L. Ed. 1049....... 377 Lockwood v. U. S., 178 Fed. 487........ 0... 2: eee eee eens 199 Logan v. U. S., 144 U.S. 263; 36 L. Hd. 429.............. dete th ceeee ute Drage arora tana As 12, 124, 156, 227, 253, 264, 364 Logan v. U. S., 123 Fed. 291. ...... 0... cc cee ee eee eens ‘,, 857 TABLE OF CASES 363 : (REFERENCES ARE TO SECTIONS) Loney, in re, 184 U. S. 872; 83 L. Hd. 949..............055 433. Louisiana, Murray v., 163 U. 8. 101; 41 L. Ed. 87..72, 102, 379 Louisiana, West v., 194 U.S. 259; 48 L. Ed. 965..... 293, 366a Lovejoy v. U. S., 128 U. S. 171; 32 L. Ed. 389.;....... 246, 249 Low vi U.S, 169 Peds 86 ic saicc carne diate gheami nse eates 241, 243 Lowdon v. U. S., 149 Fed. 678............000000 08 82, 270, 274. Lowe v. Kansas, 163 U. 8. 81; 41 L. Ed. 78............ 293, 443 Ludwig, ine re. 32: Weds TTA je nthhscatie sens sa oneanmeiee 42 Lueders v. U. S., 210 Fed. 419.0... 0... cece eee eee ee B22 Mw MacDaniel v. U. S., 87 Fed. 321................. 162, 194, 196 MacDonald v. U. 8., 63 Fed. 426........... . 201, 295, 297, 357 Mackenzie v. Barrett, 141 Fed. 964..................-05. 404 MacKenzie v. U. S., 209 Fed. 289........ 0... cece eee e cree 299 McBride v. U. S., 101 Fed. 821.............-.. 022 eee eee 179 McCabe, ex parte, 46 Fed. 363................. eee eens 40 McCarty, Price v., 89 Fed. 84............ Shy etineels 30, 38, 34 McCarty v. U. S., 101 Fed. 118.................. 145, 163, 384 McClaughry, Carter v., 183 U. S. 365; 46 L. Ed. 236...... Jiao cece ahaha deeper Gio nlbie auaib waaiae, tin na oeshe UE OOO. a LL, McClaughry v. Deming, 186 U. 8. 49; 46 L. Ed. 1049....... 436 McClaughry, Hopkins v., 209 Fed. 821...............00. 426 McClaughry, Kirkman yv., 160 Fed. 436.............. 358, 436 McClaughry, Munson v., 198 Fed. 72........... 857, 358, 437 McClaughry, Stevens v., 207 Fed. 18....... 357, 358, 428, 437 McClusky, ex parte, 40 Fed. 71............ 2. eee ee eee eee 111 McDonnell v. U. S., 188 Fed. 293................005- 314, 381 McDowell v. U. 8., 159 U. S. 596; 40 L. Ed. 271....97, 290, 427 . McDowell v. U. 8., 74 Fed. 408. ......... 0 cee eee e ee eee 427 McElroy v. U. 8., 164 U. S. 76; 41 L. Ed. 355............ 156 MeGourin, Harlan v., 218 U. 8. 442; 54 L. Ed. 1101...... 5 Busia ei aptnvnec atin aw Se ase onscreen sashccp where tainate a aaeee 97, 426, 427, 437 McGregor v. U. S., 184 Fed. 187........ 105, 156, 157, 192, 379 McGuire v. Massachusetts, 70 U. S. (38 Wall.) 382; 18 L. Ed. TBA ahastigtccdiacd aeaee eds ab, ave itiiatave Gitwianacanihaiestanen ein pe ara tees sah 366a McGuirk, O’Halloran v., 167 Fed. 493..............66. 8, 10 McInerny v. U. §., 147 Fed. 183...........cceeeeeeees 82, 333 364 . TABLE OF CASES (REFERENCES ARE TO SECTIONS) 7 McInerny v..U. 8., 143 Fed. 729..... ASS Se aanaaaa rat acy 177 McKane v. Durston, 153 U. 8. 684; 38 L. Ed. 867......... Lael Ca aa tere eeeaciones Gio ene aes 20, 293, 386, 421, 423 McKenna v. U. S., 127 Fed. 88............00000s 187, 148, 321 McKinney v. U. 8., 199 Fed. 25................... 86, 105, 112 McKnight v. U. S., 122 Fed. 926........... 0. cece cee ees 270 McKnight v. U. S., 113 Fed. 451.................2000. 20, 398 McKnight v. U. S., 115 Fed. 972.......... 0.0. cece cane 270 McKnight v. U. S., 111 Fed. 785.......... 02.0. cee eee eee 831 McLeod, ex parte, 120 Fed. 180............... 0. eee eee 442 MeMahon, Benson Vivace coves ewe wa see ne dese cave aus MeNichols v. Pease, 207 U. S. 100; 52 L. Hd. 121... .60, 62, 63 MeNiel v. U. 8., 150 Fed. 82..... 0... cee cece eect e ees 164 McNulty v. California, 149 U. 8S. 645; 37 L. Ed. 882. .293, 366a MePhun, in. re, 80 Fed. 57..........--. cee cece ee eens 49 McSpadden v. U. S., 224 Fed. 985. ...... 0.0... cece eee 195 Mackin v. U.S., 117 U.S. 848; 29 L. Ed. 909....... nanan 114 Mahon v. Justice, 127 U. S. 700; 32 L. Hd. 283............. 69 Mallett v. North Carolina, 181 U. 8. 589; 45 L. Ed. 1015. . .366a Mangum, Frank v., 237 U. 8. 309; 59 L. Ed. 969...... 410, 433 Marbles v. Creecy, 215 U. 8. 63; 54 L. Ed. 92....... 63, 65, 67 Mark Yick Hee v. U. S., 223 Fed. 7382.............0 00000: 389 Marrin v. U. S., 167 Fed. 951...... 0... ccc eee cnc 253 “Marshall v. U. S., 197 Fed. 511....... 0.0... cece eee 156 Martin v. Texas, 200 U. S. 316; 50 L. Ed. 497.......... 82, 88 Martin v. U. S., 168 Fed. 198.............. 0c eee eee 146, 162 Mason, ex parte, 105 U.S. 696; 26 L. Ed. 1213............ 436 Massachusetts, Appleyard v., 203 U. 8. 222; 51 L. Ed. 161.. Pia sels eines Me OLD Oe se ele eee a eee 58, 60, 62 Massachusetts, McGuire v., 70 U. S. (3 Wall.) 382; 18 Dy, Hid, 164 acca iid eens eee ew eee hs OES 366a Massachusetts, Murphy v., 177 U. S. 155; 44 L. Hd. 711.... 209 Massachusetts, Pervear v., 5 Wall. 475; 18 L. Ed. 608.... 349 Massachusetts, Storti v., 183 U. S. 138; 46 L. Ed. 120...... 433 Matthews v. U. S., 161 U. S. 500; 40 L. Hd. 786........... 119 Matthews v. U. S., 192 Fed. 490. ......... eee ee eee eee 314 Mattox v. U. S., 146 U.S. 140; 36 L. Ed. 917...... 320, 322, 329 Mattox v. U. S., 156 U. S. 2387; 39 L. Ed. 409...........-- 260 TABLE OF CASES 365 (REFERENCES ARE TO SECTIONS) Maxey v. U. 8,, 207 Fed, S27 vcscxsuvccssnasarevatenwns 1, 114- Maxwell v. Dow, 176 U. 8. 581; 44 L. Ed. 597............ 293 May v. U.S., 199 Fed. 42. .84, 86, 87, 116, 163, 165, 200, 201, 330 Mayi'vs U; Si, POT Meds Des ccc ass asahice aoe anwscee wusiueneecnaes 300 Mayes, Talton v., 163 U. 8S. 376; 41 L, Ed. 196........ -... 293 Meldrum v. U.S., 151 Fed. 177. ...... 0.0... cee cece eee 378 Melton v. U. S., 120 Fed. 504.0... 0... ccc cece cece eeees 331 Metzger, in re, 5 How. 176; 12 L. Ed. 104.............. 47, 402 Meyer v. U. S., 220 Fed. 822........... ccc cece cee eeence 380 Michigan, Reetz v., 188 U. 8. 505; 47 L. Ed. 563.......... 293 Mickie’ys U.8y 16% Hed, 229-10 annswionmarcnmvecnveness 314 Milburn, ex parte, 36 U.S. (9 Pet.) 704; 9 L. Hd. 280...23, 419 Milby v. U. S., 120 Fed. 1.22... . ccc cece cece eens 317, 377 Miles v. U. S., 103 U. S. 304; 26 L. Ed. 481............ 88, 377 Miller v. Oklahoma, 149 Fed. 330................ 381, 385, 395 Miller v. Texas, 153 U. S. 585; 388 L. Ed. 812......... 293, 366a Miller v. U. S., 174 Fed. 35......... 00. c cece eee eee eeees 358 Miller v. U. S., 186 Fed. 581........ 0... ccc cee ccc eee 174 Miller v. U. S., 183 Fed. 387....... 0... cece eeees 136, 168 Milligan, ex parte, 71 U.S. (4 Wall.) 2; 18 L. Hd. 281..... ss ac Saree Sa vos Hr etieca veh wisaei aD eaten In oreo aes 240, 408, 425 Mills, in re, 185 U. S. 263; 34 L. Ed. 107............. 336, 340 Mills v. U. S., 164 U.S. 644; 41 L. Ed. 584.............. 301 Mills, Wise v., 189 Fed. 588............ 0.0. cece eee eens 5 .Mineau, in re, 45 Fed. 188.......... 2.0... cee eee eee eee 44 Minnesota v. Brundage, 180 U. 8. 499; 45 L. Ed. 639 nce enie 430 Minnesota, Holden v., 137 U. S. 483; 34 L. Ed. 734........ 342 Mirzan, ex parte, 119 U.S. 584; 30 i Ed: 618 i603 ceine co 400 Mississippi, Gibson v., 162 U. S. 565; 40 L. Ed. 1075. -72, 366a Mississippi, Smith v., 162 U. 8. 592; 40 L. Ed. 1082..72, 82, 191 Mississippi, Williams v., 170 U.S. 213; 42 L. Ed. 1012.... 82 Missouri, Brooks v., 124 U. S. 394; 31 L. Hd. 454......... 366a Missouri, K. & T. BR. Co. v. U. 8., 178 Fed. 15............. 314 Mitchell, in re, 171 Fed. 289.......... 0.0... 0c ce eee eee 53 Mitchell, Horn v., 223 Fed. 549............. cece cence 406 Mitchell v. U. S., 196 Fed. 874........ ve diheethaa aunts 322, 340, 363 Moebus, ex parte, 148 Fed. 39............... 0c eee ee eee 408 Moffett, Kurtz v., 115 U. 8. 487; 29 L. Ed. 458............ 10 366 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Montana, Keerl v., 213 U. 8. 185; 53 L. Ed. 784........... 207 Moore v. Illinois, 14 How. 3; 14 L. Ed. 306.............. 217 Moore v. Mississippi, 88 U.S. (21 Wall.) 686; 22 L. Ed. 653 366a Moore v. U. S., 160 U. S. 268; 40 L. Ed. 422............. 179 Moore v. U.S8., 150 U. 8S. 57; 87 L. Hd. 996................ 822 Morgan, ex parte, 20 Fed. 298.................. eslwniages 60 Morgan v. Devine, 237 U. 8. 682; 59 L. Hd. 1158.......... 357 Morgan, Ebeling v., 237 U. S. 625; 59 L. Ed. 1151........ 357 Morgan v. U. 8., 148 Fed. 189....... 152, 153, 163, 319, 378, 380 Morgan v. Ward, 224 Fed. 698............2-.0eeeeeee .. 368 Morrisy:: U. Big 185 Ped Fax oausvavcsunneseemmedecee 354, 359 Morris v. U.'S., 168 Fed. 682..............-.2.200 08 148, 332 Morris v. U. §., 161 Fed. 672..... Lisacoiaea teen semenee uae 156, 161 Morris v. U. S., 149 Fed. 128........... 0. cece eee eee 278 Morrissey, in re, 137 U. 8. 187; 34 L. Hd. 644............ 422 Mivrse: Gn re, UT Wed? G68 eins aw deeee erncceeseeeenee 359 Morse v. U. 8., 174 Fed. 589................ 174, 301, 311, 331 Morse v. U. 8., 168 Fed. 49.......... Peyseagudiiip oe la eee 20. Motes v. U. S., 178 U.S. 458; 44 L. Ed, 1150...... 260, 330, 421 ‘Motherwell v. U. S., 107 Fed. 487...........000000e ee eee 417 Moyer, Blake v., 206 Fed. 559......... 0... cece eee eee ee 357 Moyer, Blake v., 208 Fed. 678........ 0... cc eee cece eee 397 Moyer, Howard v., 206 Fed. 555............. 0c eeeeee 357 Mullen v. U. S., 106 Fed. 892........... (Acmamra RE Re 297 Mullizan -v, U, S., 120 Med. 08. a. ce wna ee nsn iene nnneaees 148 Munroe v. U. S., 216 Fed. 107.......... 0c cee eee eee 102 Munsey v. Clough, 196 U. 8. 364; 49 L. Ed. 515. .63, 66, 67, 70 Munson v. McClaughry, 198 Fed. 72............. 357, 358, 437 Murphy, Felts v., 201 U. S. 123; 50 L. Hd. 689....... 426, 427 Murphy v. Massachusetts, 177 U. S. 155; 44 L. Ed. 711... 209 Murray v. Louisiana, 163 U. S. 101; 41 L. Ed. 87. .72, 102, 379 Movers yi 1, B.228 Weds 9s ice cos paemumecemerdsanes 321 N Naftzger v. U. S., 200 Fed. 494..........0. cece eee 168, 170 Neagle, in re, 135 U. 8. 1; 34 L. Ed. 55.............5. 404, 422 Neal v. Delaware, 103 U. S. 370; 26 L. Ed. 567.......... 82 Neall v. U. S., 118 Fed. 699........... 0c cece eee eee 152, 163 TABLE OF CASES 367 (REFERENCES ARE TO SECTIONS) Nebraska, Bohanan v., 118 U. S. 231; 30 L. Ed. 71........ 366a Nebraska, Bohanan v., 125 U. 8. 692; 31 L. Ed. 854...... 390 Nebraska, Bolln v., 176 U. S. 83; 44 L. Ed. 382...... 293, 366a Neely, in re, 103 Fed. 626....... kana iahen a es 49 Nelson v. U. S., 201 U. 8S. 92; 50 L. Ed. 678............. 444 Nemeof v. U. S., 202 Fed. 911............. cece eee eee es 321 Nevitt, in re; 117 Fed. 448............. cece eee ee eee 440 New Jersey, Brown v., 175 U. 8. 172; 44 L. Ed. 119. .298, 366a New Jersey, Twining v., 211 U.S. 78; 58 L. Ed. 97....... 293 New Mexico, Pettine v., 201 Fed. 489............... 881, 395 New York, Adams v., 192 U. 8. 585; 48 L. Ed. 575..... 5, 272 . New York v. Eno, 155 U. 8. 89; 89 L. Ed. 80.............. 430 New York, Hyatt v., 188 U. 8. 691; 47 L. Ed. 657...... 63, 67 _ New York Central & H. R. R. Co. v. U. S., 212 U. 8S. 481; MA MG) td 2 MA Shag veh oscar antes absdve cave Ries cece ok es 137, 158 Nichols, Pettibone v., 203 U. S. 192; 51 L. Ed. 148....... sda ener cimusaauceamneaae 63, 67, 433, 434 Nickell v. U. S., 161 Fed. 702....... 0... cece cece cece 162 Nielsen, in re, 181 U. S. 176; 33 L. Ed. 118....... 216, 218, 426 Nobles v. Georgia, 168 U. S. 398; 42 L. Ed. 515. .186, 364, 366a Nolte, Yordi v., 215 U. 8. 227; 54 L. Hd. 170.............. 39 Norcross v. U. S., 209 Fed. 18.......... 00... cece eee eee 102 North Carolina, Cross v., 132 U. S. 181; 33 L. Ed. 287..... 217 Norton v. U. S., 205 Fed. 598...................... 6156, 317 Nurnberger v. U. S., 156 Fed. 721................... 195, 280 . O Oates v. U. §., 223 Fed. 1018.......... 02. cece eee eee eee 445 O’Brien v. MeClaughry, 209 Fed. 816............... 357, 487 » Ogden v. U. S., 112 Fed. 528....... 2.2.0... eee eee 822, 329 O’Halloran v. McGuirk, 167 Fed. 493.............000005 8, 10 O’Hara v. U. S., 129 Fed. 551......... eee e cece eee eee 222 Ohio v. Dollison, 194 U. 8S. 446; 48 L. Ed. 1062........ 293, 429 Ohio, Fox v., 5 How. 471; 12 L. Hd. 218................. 217 Oklahoma, Miller v., 149 Fed. 330.............. 881, 385, 395 Oklahoma, Sparks v., 146 Fed. 371...............5.. 330, 382 Old Nick Williams Co. v. U. 8., 215 U. 8. 541; 54 L. Ed. 318, 384 _ Old Nick Williams Co. v. U. S., 152 Fed. 925............ 388 368 TABLE OF CASES (REFERENCES ARE TO SECTIONS) O’Leary v. U. §., 158 Fed. 797...............00000, 299, 379 Olson v. U. §., 183 Fed. 849............. ccc cece eee eee 156 O’Neil, Collins v., 214 U. 8. 118; 53 L. Ed. 933........ 45, 46 O’Neil v. Vermont, 144 U. 8. 323; 36 L. Hd. 450........... 349 Ong Chang Wing v. U. S., 218 U. S. 272; 54 L. Ed. 1040... 292 Oregon, Lem Woon v., 229 U. 8. 586; 57 L. Ed. 1340...... 293 Origet v. U. 8., 125 U. 8. 240; 381 L. Ed. 748.........0..... 378 Ornelas v. Ruiz, 161 U. 8. 502; 40 L. Ed. 787............ 43, 47 Orpen, in re, 86 Fed. 760..................0005- 40, 44, 49 Oteiza, Luis, in re, see Cortes, in re, 186 U. S. 330; 34 day Bids AG4.. asatece ware eis arasierev Skcdeom eateamien en 47, 49, 428, 434 Owens v. U. 8., 180 Fed. 279.......... 0... eee eee 331, 383 P Palliser, in re, 186 U. 8. 257; 84 L. Ed. 514.............. 129 Park v. Taylor, 118 Fed. 34................. Ss breccds 10 Parker, Hudson v., 156 U. 8. 277; 39 L. Hd. 424..... ee 20 Parkinson v. U. S., 121 U. 8. 281; 30 L. Ed. 959........... 114 Parks, ex parte, 93 U. 8.18; 23 L. Hd. 787................ 438 Paul, Virginia v., 148 U. 8. 107; 37 L. Ed. 386. .75, 77, 78, 421 Pearce v. Texas, 155 U. S. 311; 39 L. Hd. 164............ 66 Pease, MeNichols v., 207 U. 8. 100; 52 L. Ed. 121...60, 62, 63 Peck, Rogers v., 199 U. 8S. 425; 50 L. Ed. 256............. 433 Peckham v. Henkel, 216 U. S. 488; 54 L. Ed. 597......... 30° Pennsylvania, Clark v., 128 U. 8. 395; 32 L. Ed. 487...... a SUcohiayer esace atatsied a henatanore a are chen meatatra REA oretom mi eites 366a, 379, 391 Pepke v. Cronan, 155 U. S. 100; 39 L. Hd. 84............. 430 Perara v. U. §., 221 Fed. 218. ........ ccc cece e eee eee 300 Perkins, ex parte, 29 Fed. 900................0..0 0000 440 Perrin vis Us Six, 169) Bede Ws esas casa wuicanmiinneeeicuaseen 137 Pervear v. Massachusetts, 5 Wall. 475; 18 L. Ed. 608....... 349 Peters v. U. S., 94 Fed. 127........ 0... cece eee eee ees Spade ty aretlorece ames aresenetas 1, 119, 148, 146, 172, 219, 257, 280, 304 Peterson v. U. §., 213 Fed. 920...............00 eee eee .,. 812 Pettibone v. Nichols, 203 U. 8. 192; 51-L. Ed. 148......... cK aeaeeae occ ecescceessrcssceeees 68, 67, 438, 434 Pettine v. New Mexico, 201 Fed. 489................ 381, 395 Pettit v. Walsh, 194 U. S. 205; 48 L. Ed. 938............- 42 TABLE OF CASES 369 (REFERENCES ARE TO SECTIONS) Pflanz, Hughes v., 188 Fed. 980.............000ceeeeeees 61 Phillips v. U. 8., 201 Fed. 259................ 0.0000 225, 244 Pickett v. U. S., 216 U. S. 456; 54 L, Ed. 566..... 284, 322, 381 Pierce v. isan. 210 U. S. 387; 52 L. Ed. 1113...... 66, 70, 484 Pieree v. U. S., 160 U. 8. 355; 40 L. Ed. 454........... 157, 395 Pocahontas Collieries Co., Castner v., 117 Fed. 184........ 27 Pointer v. U. 8., 151 U.S. 396; 38 L, Ed. 208............. aes Gases pace Gis cutn aceon aaee Selden OS ONE 156, 157, 249, 251, 391 Pooler v. U. 8., 127 Fed. 509....... 1, 141, 152, 153, 176, 334, 360 Porter v. U..S., 91 Wed. 494. jcc cauiea ceeienveswoes es 179, 295- Porto Rico, Kent v.; 207 U. S. 118; 52 L. Hd. 127......... 295 Post“. U.S.) 185 Bed. Wisc. wed ed ce en aeaiie paces 295, 331 Potter v. U. S., 155 U. 8S. 438; 39 L. Wd, QE, sivccwcnswn: 146 Pounds v. U. 8., 171 U. 8. 35; 43 L. Hd. 62.......... 146, 315 Powell v. U. 8., 206 Fed. 400 jb Ruta aes Beware beeee 89 Powers v. U. S., 223 U. 8. 303; 56 L. Ed. 448............ dpaitscathy Pacha yice sees teat ead ar veya scares Roars ee 82, 100, 317, 391 Prettyman v. U. S., 180 Fed. 30............. 115, 158, 224, 382 Price v.. Henkel, 216 U. 8. 488; 54 L. Ed. 581......... a (485 _ Price v. McCarty, 89 Fed. 84............00.000- ...80, 33, 34 Price v. U. S., 165 U. 8. 311; 41 L. Ed. 727........... 164, 321 Pricevi U.. 85-169 Wed. 791 oes esa seca tenia eaAGle wae Bele 373 Price v. U. 8., 156 Fed. 950...... Y dune de tae eee 216 Pritchett v. Sullivan, 182 Fed. 480....................4. 10 Putnam v. U. S8., 162 U. 8. 687; 40 L. Ed. 1118.......... sao Shale ahs ao dtesa: sahieea Bd. gia Sida ach eed 118, 129, 278, 363 R Radford v. U. S., 129 Fed. 49............0. cee eee 1, 192, 249 Radin v. U. S., 189 Fed. 568.....:......-..0-- ee eee 261, 278 Ramirez, Elias v., 215 U. S. 398; 54 L. Ed. 253......... 43, 49 Rasmussen v. U. 8., 197 U. 8. 516; 49 L. Ed. 862.......... 241 Reagan v. U. §., 202 Fed. 488........... ccc ccceceeceeees 282 Reagan v. U. 8., 157 U. S. 301; 39 L. Ed. 709......... 161, 300 Reed, ex parte, 100 U. 8. 18; 25 L. Hd. 588................ 436 Reed v. U. S., 224 Fed. 378...........00ceceeeees 67, 70, 368 Reese v. U. S., 76 U. S. (9 Wall.) 13; 19 L. Ed. 541....... 22 Reese, in re, 107 Fed. 942..............00-000ee ....426, 428 370 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Reetz v. Michigan, 188 U. S. 505; 47 L. Ed. 563........... 293 Reggel, ex parte, 114 U. S. 642; 29 ie HG, BOO s dacew coe eeane s Goes Bini t Gate ota’ a, Rs vhelor' Nb) v veil bide da aeaewin dager Gio 60, 61, 63, 66, 434 Reid v. Jones, 187 U. 8. 153; 47 L. Ed. 116............... 422 Reilley, Roberts v., 116 U. S. 80; 29 L. Ed. 544.......... ec Rgiiarete chew a dure bid schisie ss Ge eats Geese 62, 63, 64, 66, 70, 434 Reinitz, in re, 39 Fed. 204............... 0. ccceeeee eee. 46 Renigar v, U..S., 172 Med, 646.20. .6.0.cceccusoecucane 107 Reynolds v. U. S., 98 U. S. 145; 25 L. Ed. 244..... 254, 260, 363 Rice v. Ames, 180 U. S. 871; 45 L. Ed. 577................ Stee cece cece eect er eeeeeeesees sa, 36, 39, 42, 143, 429 Richards v. U. S., 175 Fed. 911........ 159, 252, 254, 275, 382 Richardson, Haddox v., 168 Fed. 635................. 346, 419 Richardson v. U. S., 181 Fed. 1......... 136, 172, 173, 311, 319 Richter, in re, 100 Fed. 295.....0...... 0.0... cece ees 28, 30 Rider v. U. S., 149 Fed. 164............00.0.....00. 111, 393 ‘Rieger v. U.S., 107 Fed. 916.................... 177, 299, 300 Riggins v. U. S., 199 U. 8. 547; 50 L. Ed. 303............ 430 Rimmerman v. U. 8., 186 Fed. 307..............0... 200, 311 Rinker v. U. S., 151 Fed. 755............... 146, 178, 200, 382 Ripper v. U. S., 178 Fed. 24............ 0000 ccc eeeee 5, 6 Robb v. Connolly, 111 U. 8. 624; 28 L. Ed. 542.......... 432 Roberts, Carter v., 177 U. 8. 496; 44 L. Ed. 861........... 421 Roberts v. Reilley, 116 U. S. 80; 29 L. Ed. 544........... Be Wea ste Sen ee Sa a ca sca atta Se 62, 63, 64, 66, 70, 484 Roberts, Rose v., 99 Fed. 952..................0. ,. 422, 436 Roberts v. U. 8., 126 Fed. 897..........n.....5. bandas 299 Robertson, in re, 156 U. S. 183; 39 L. Hd. 389........... 366a Robertson v. Arizona, 188 Fed. 783..............0cceuees 301 Robinson v. U. §., 172 Fed. 105.................0.. 128, 299 Rodriguez v. U. 8., 198 U. S. 156; 49 L. Ed. 994.......... 381 Rogers v. Alabama, 192 U. S. 226; 48 L. Ed. 417........ 88 Rogers v. Peck, 199 U. S. 425; 50 L. Ed. 256.............. 433 Rogers v. U. 8., 180 Fed. 54......... 0... cee ee ees 115, 137, 302 Rooney v. U. S., 208 Fed. 928................005 156, 157, 172 Rooney v. North Dakota, 196 U. 8. 319; 49 L. Ed. 494...... 842 Rose v. Roberts, 99 Fed. 952........ 2... ccc eee eevee 422, 436 Rosen v. U. 8., 161 U. 8. 29; 40 L. Ed. 606... .164, 178, 296, 321 TABLE OF CASES 371 (REFERENCES ARE TO SECTIONS) Rosencrans v. U. 8., 165 U. S, 257; 41 L. Ed. 708......... 177 Rosencrans v. U. §., 155 Fed. 88......... 0.0. cc cece eens 254 , Ross, in re, 140 U. S. 453; 35 L. Ed. 581......... 111, 229, 240 Roth, in re, 15 Fed. 506........... 0.00000 005 beeieaneins 39 Rowe v. U. S., 164 U. S. 546; 41 L. Ed. 547............... 295 Rowe, in re, 77 Fed. 161....................46, 427, 428, 430 Rowland, ex parte, 104 U. S. 604; 26 L. Hd. 861........... 426 Royall, ex parte, 117 U. S. 241; 29 L. Hd. 868............ 430 Rudd v. U. 8., 173 Fed. 912......... ccc cece cee e ee eeeee 297 Ruiz, Ornelas v., 161 U. S. 502; 40 L. Ed. 787........... 43, 47 | Rumble v. U. §., 148 Fed. 772......... 0.0.00 cece ree 157 Rupert v. U. S., 181 Fed. 87.0.0... 0... ccc cece eee ees 147 Russell, Adams v., 229 U. S. 353; 57 L. Ed. 1224......... 366a Rutherford, Chandler v., 101 Fed. VW hiss aca sais Wenn e usecase 10 Ryan v. U. S., 216 Fed. 18.................0000- 156, 358, 381 8 Sailors Union of the Pacifie Hammond Lumber Co. v. St. Clair v. U. 8. 154 U, 8. 134; 38 L. Ed. 986......... Gite Buia Soe Soda naRIO TS bw lalraree eee le: 162, 246, 251, 308, 381 St. Louis Merchants Bridge T. R. Co. v. U. S., 209 Fed. GOO! ie hk 20 a art ravens any dane Sustntaale tate nace neae a ana cri ad 162 Saito v. U. S., 141 Fed. 653.......... 2... cece eee eee eee 380 Salla v. U. S., 104 Fed. 544............... UsapeatdWieisl aed eal 165 S. Anargyros v. Anargyros & Co., 191 Fed. 208........... 441 Sandals v. U. S., 2138 Fed. 569................ 000005 298, 311 Savin, in re, 131 U. S. 267; 33 L. Ed. 150......... 428, 442, 443 Sawyer v. U.S., 202 U. 8. 150; 50 L. Ed. 970.............. 249 Sayre, Johnson v., 158 U. 8. 109; 89 L! Ed. 914........... 436 Schick v. U. S., 195 U.S. 65; 49 L. Ed. 99................ 241° Schlierholz, Arkansas v., 179 U.S. 598; 45 L. Ed. 835...... 385 Schlippenbach, ex parte, 164 Fed. 783................... 44 Schmidt v. U. S., 183 Fed. 257............... 00000. 1... 299 Schneider, in re, 148 U. 8. 157; 87 L. Ed. 404........ 422, 428 Schraubstadter v. U. 8., 199 Fed. 568................. 158, 317 Schwab v. Berggren, 143 U. S. 442; 36 L. Ed. 218. .842, 354, 356 Schwartz, Andrews v., 156 U. 8. 272; 39 L. Ed. 422....... 433 Schwartz-v..U. S., 217 Fed. 866..................06- 443, 444 Byrne’s Crim. Proc.—26 372 TABLE OF CASES (REFERENCES ARE TO SECTIONS) cise HUMES RMS aw Bee aoe eee wes seeeeee +148, 808, 304 Sena v. U. S., 147 Fed. 485.0... 00... cc cece c cece cece 378 Serra v. Mortiga, 204 U. 8. 470; 51.L. Ed. 571.......... 381 Shapiro v. U. S., 285 U. S. 412; 59 L. Ed: 291............ 367 Sharp v. U. §., 188 Fed. 878................00005 81, 165, 191 Shaw, in re, 172 Fed. 520.......-......ccceeeeee eee 102, 273 Shaw v. U. S., 180 Fed. 348...........168, 179, 200, 295, 381 Shaw v. U. S., 165 Fed. 174......... 0... 0. ccc cece ees 120 Shea v. U. S., 294 HOG: AD 6 iio hielo dir Gad aaa ee 389 Shelp v. U. S., 81 Fed. 694....151, 222, 264, 275, 382, 384, 385 Shepard v. U. S., 160 Fed. 584...... 164, 174, 176, 294, 358, 381 Shine, Grin v., 187 U. 8. 181; 47 L. Ed. 180.............. seas aaa eS Ree Rebesso ae uh ease aroha RIGS 39, 44, 47, 49, 434 Shine, Kore vs, 186 Feds 61... ccc2caucetecawakcdeavads 131 Shoener v. Pennsylvania, 207 U. S. 188; 52 L. Ed. 168.... 208 Short-v. U.S. 221 Wed, 248-2 .c ca heneasce na eeesa weer’ 385 Siebold, ex parte, 100 U. S. 371; 25 L. Ed. 717........ 400, 428 Simmons v. U. S., 142 U. S. 148; 85 L. Ed. 968........ 207, 297 Simpson v. U. 8., 184 Fed. 817.................000- 311, 326 Sims v. U. S., 121 Fed. 515................. 146, 150, 154, 197 Sire v. Berkshire, 185 Fed. 967................ spate hertie 205 Smith, im re, 18 Fed. 25........... 0... eee e eee eee eee 221 Smith v. Mississippi, 162 U. S. 592; 40 L. Ed. 1082...... pg Ae hs MER ES AM Sw wee aN BEM EER ORE memcmte ley. Bey IM Smith v. U. 8., 161 U. S. 85; 40 L. Ed. 626.............. 295 Smith v. U.S., 94 U. S. 97; 24 L. Hd. 32.............0-065 390 Smith v. U. S., 208 Fed. 181......... 00. eee e eee eens 115 Smith v. U. S., 157 Fed. 721. ......... ccc see eee eee 187, 297 Snow, in re, 120 U. S. 274; 30 L. Ed. 658................ 218 Snow v. U. S., 118 U. S. 346; 380 L. Ed. 207............... 368 Solomon v. Davenport, 87 Fed. 318............. ces eeeeeee 422 Sorenson v. U. 8., 168 Fed. 785..........0-- cee eee eee ees 340 South Carolina, Davis v., 107 U. S. 597; 27 L. Ed. 574..... 17 Sparf v. U. S., 156 U. 8. 51; 39 L. Ed. 343... .295, 296, 299, 308 Sparks v. Okishoma, 146 Reds. B11. ccc ccccecwere ovens 330, 382 Spencer, ex parte, 228 U. 8. 652; 57 L. Ed. 1010. .428, 430, 433 4 abe ® TABLE OF CASES 373 (REFERENCES ARE TO SECTIONS) Spencer v. U. §., 169 Fed. 562................... ree 86° Spies, ex parte, 123 U. S. 1381; 31 L. Ed. 80. .254, 261, 366a, 392 Sprinkle v. U. S., 150 Fed. 56.............- ccc cece ene 895 Sprinkle v. U. S., 141 Fed. 811....................4.. 147, 311 - Stanley v. U. S., 195 Fed. 896................005. eee 152 _ Starr v. U. 8., 153 U. 8. 614; 38 L. Hd. 841......... 8, 10, 297 Statler v. U. 8., 157 U. S. 277; 39 L. Ed. 700............. 318 Stearns v. U. S., 152 Fed. 901................... 138, 311, 314 Steers v. U. S., 192 Fed. 1..................24. 294, 382, 384 Steigman v. U. S., 220 Fed. 63.............. cc cece eens 152 Steiner, ex parte, 202 Fed. 419............. 0.00000 394, 429 Steinman v. U. S., 185 Fed. 47.......... ccc cece eee 209 Sternaman v. Peck, 80 Fed. 883................00eeeee 47 Stevens v. McClaughry, 207 Fed. 18........ 357, 358, 428, 437 Stevenson v. U. §., 162 U. S. 313; 40 L. Ed. 980.......... 299 Stevenson v. U. S., 86 Fed. 106.......... 0... cc cee eee 299 Stewart v. U. S., 211 Fed. 41................... 264, 298, 301 Stewart v. U. S., 119 Fed. 89......... 0.0... cee eee eee eee 30 Stockslager v. U. S., 116 Fed. 590........ 84, 142, 145, 279, 299 Stokes v. U.8., 157 U. S. 187; 39 L. Ed. 667.............. 379 Stokes v. U. S., 60 Fed. 597. ...... 0... cece cece een e eens 114 Stone v. U. 8., 167 U. S. 179; 42 L. Ed. 127.............. 216 mtone v. U. S., 64 Wed, 667.00 sc0ssresiesssteredens 216, 316 Storti v. Massachusetts, 183 U. 8. 188; 46 L. Ed. 120...... 433 Strassheim v. Daily, 221 U.S. 280; 55 L, Ed. 735... .62, 123, 434 Strauder v. West Virginia, 100 U. S. 303; 25 L. Hd. 664..... 88 Strauss, matter of, 197 U. S. 324; 49 L. Hd. 774.......... 66 Strauss, in re, 126 Fed. 327........... 2. cece eect eee eee 65 Streep v. U. 8., 160 U. S. 128; 40 L. Ed. 365............. 238 Stubbs v. U. S., 111 Fed. 366................. ceca 115, 296 Sullivan, Pritchett v., 182 Fed. 480................-005. 10 Suslak v. U. S., 213 Fed. 913.......... 0... cece cece ees 312 Swan, in re, 150 U. 8. 637; 37 L. Hd. 1207............ 430, 437 Sykes v. U. S., 204 Fed. 909............. 0.0 cece eee 381, 384 T Z Taintor, Taylor v., 88 U. S. (16 Wall.) 366; 21 L. Ed. 287 ese natal caster yd a Weaha Rn Acai Seok a eran AG Wola teats 22, 60, 61 374 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Talbott v. U. S., 208 Fed. 144.......... 0... ccc eee eee 159 Talton v. Mayes, 163 U. 8. 376; 41 L. Ed. 196........... 293 Tam Shi Yan v. U. S8., 224 Fed. 422................... 385 Tapack v. U. §., 220 Fed. 445.............. Wssisesdeia lettin’ 162 Tarrance v. Florida, 188 U. 8. 519; 47 L. Ed. 572........ 88 Taylor, Park v., 118 Fed: 84...............0 0c cc cee ceees 10 Taylor v. Taintor, 83 U. S. (16 ae 366; 21 L. Ed. 287 ck etceey itd ee SEEMS eae RAD ee amioniis 22, 60, 61 Taylor v. U. 8: 89. Ped, 954 acwenc uae aiwlabdncits 260, 279 Terlinden v. Armes. 184 U. 8. 270; 46 L. Ed. 534....... 47, 434 Terry, ex parte, 128 U. S. 289; 32 L. Hd. 405........... re ee ee ee 408, 426, 440, 448, 444 Terry v. U. S., 120 Fed. 483...................000- 148, 157 Texas, Caldwell v., 187 U. S. 692; 34 L. Hd. 816.......... 298 Texas, Carter y., 177 U.S. 442; 44 L. Ed. 839...... 82, 88, 379 Texas, Leeper v., 189 U. S. 462; 35 L. Ed. 225...292, 366a, 391 Texas, Martin v., 200 U. S. 316; 50 L. Ed. 497........ 82, 88 Texas, Miller v., 153 U. S. 535; 38 L. Ed. 812....... 293, 366a Texas, Pearce v., 155 U. §. 311; 39 L. Ed. 164............ 66 Thaw, Drew v., 235 U. 8. 482; 59 L. Ed. 302....... 62, 65, 66 Thiede v. Utah, 159 U. S. 510; 40 L. Ed. 287............ sgh secs wc tay toh onan he Se rahcte Maul ae oie 258, 264,.279, 299, 382, 383 Thomas v. U. S., 156 Fed. 897.................... 165, 216 Thompson v. U. 8., 155 U. 8. 271; 89 L. Hd. 146....... 185, 207 Thompson v. U. S., 202 Fed. 401, 146, 150, 189, 380, 382, 383, 395 Thompson v. U. S., 204 Ped. 9738.......... 0. ccc eee eee eee 336 Thompson v. Utah, 170 U. S. 343; 42 L. Hd. 1061.......... 241 Timmons v. U. 8., 85 Fed. 204.......... 0... cece e ee eens 149 Tingle v. U. S., 87 Fed. 320............. Sa Teens 200, 278 Tinsley v. Anderson, 171 U. 8. 101; 43 L. Ed. 91........ jatakis peas aious Gite eaees Ma eee we lemear 421, 426, 438, 443 Tinsley v. Treat, 205 U. 8S. 20; 51 L. Ed. 689.......... 31, 33 Tomlinson, Whitten v., 160 U. S. 231; 40 L. Ed. 406...... Ae eae eer gae eer lak vtaazcerato ene ets hs Sh 32, 65, 69, 70, 406, 483 Tom Tong, ex parte, 108 U. 8. 556; 27 L. Ed. 826....... 422 Prafton Vv. U. Sy IAT Wed, 818.0200 0c. cece sexe wenn 324 Treat, Tinsley v., 205 U. S. 20; 51 L. Hd. 689.......... 31, 33 Trono v. U. S., 199 U. 8. 521; 50 L, Hd. 292.........-.--+- 209 TABLE OF CASES’ ' 375 (REFERENCES ARE TO SECTIONS) Tubbs v. U. §., 105 Fed. 59................. 219, 298, 358, 384 Tucker v. U. S., 151 U. S. 164; 388 L. Hd. 112......... 299, 381 Tucker v. U. S., 224 Fed. 883........ 00... c cece eens 311, 382 Tucker v. U. S., 196 Fed. 260........... cc ccc cece eee eee 203 Turner v. U. S., 66 Fed. 280.156, 258, 279, 295, 321, 355, 356, 379 Twining v. New Jersey, 211 U.S. 78; 53 L. Ed. 97........ 293 Tyler, in re, 149 U. 8. 164; 37 L. Ed. 689................ 428 Tyler v. U. S., 106 Fed. 187................000, 119, 161, 181 Tyomies Publishing Co. v. U. S., 211 Fed. 385............. 164 U Ulrich, ex parte, 43 Fed. 661............ 0. ccc cece ene eee 430 | Ulrigh, @x parte, 42 Wed. 587. cccccsciedasvaissscaonwus 207 Union Pacific Coal Co. v. U. S., 173 Fed. 787............55 314 U.S. v. Adams Express Co., 229 U. 8. 381; 57 L. Hd. 1237.. 370 U. S. v. Adams Express Co., 119 Fed. 240.......... 195, 201 U.S. v. Alamogordo Lumber Co., 202 Fed. 700............ 388 U. 8. v. Ambrose, 108 U. 8. 386; 27 L. Ed. 746........ 176, 177 U.S. v. Ambrose, 2 Fed. 556......... 0.0 c ec cee cece eceee 277 U.S. v. American Tobacco Co., 146 Fed. 557......... 102, 104 U.S. v. American Tobacco Co., 177 Fed. 774............. 109 UL Sov Antz, 16 Bed 2119 jie teeta eure adele 90 U8. ¥ Appel, 201 Wed, 495 occ cca sccevessdcxvceievs 42 ‘U.S. v. Arnold, 82 Fed. 769..........ccceeee eee e eee 395 U.S. v. Aviles, 222 Fed. 474..........0: cece eee eee eee 105 U. 8. v. Barber, 219 U. 8. 72; 55 L. Hd. 99........... 236, 370 U. S. v. Barnhart, 22 Fed. 285....... fyidaned Gag eee eee 217 U.S. vi Bateman, 34 Fed. 86:0 oicee eects ee nie ee nee mates 135 U.S. v. Baumert, 179 Fed. 7385.............. 9, 27, 32, 118, 114 U.S. v. Bayaud, 16 Fed. 376.............. 152, 176, 201, 223 U. S. v. Belvin, 46 Fed. 381............-. 2: eee e eee 94, 103 U. S. v. Bennett, 17 Blatch. 857:.................0 000 176 U. 8. v. Benson, 31 Fed. 896............02 cee eee eeee 81, 183 U. 8. v. Birdsall, 233 U. 8. 223; 58 L. Ed. 930....... sees. 870 U. S. v. Black, 160 Fed. 481........... 0... cee eee eee - 33 U. S. v. Bolles, 209 Fed. 682.............. ieagurs wares 104, 105 U.S. v. Borger, 7 Fed. 1938.......... ce cee cece eee eee 221 U. S. v. Brawner, 7 Fed. 86...............0006: remeunee 16 376 Aaadddddadaddddddddddaddasddddadsasdddaadadad TABLE OF CASES (REFERENCES ARE TO SECTIONS) w doreeke 198 Bed. (Gis cass sccrnew nd peareieoeck 107 v. Britton, 107 U. S. 655; 27 L. Ed. 520........ 188, 151 v. Buntin, 10 Ved. 780. «see ce.u weed ese eidereas cvs 216 v. Burdick, 211 Fed. 492................0.. 00005 229 v. Butler, 88 Fed. 498........... ccc cece cee ee anes 212 v. Campbell, 179 Fed. 162....4s00.0sece0csssanes 30 v. Campbell, 16 Fed. 233................0. 00000. -. 146 v. Carll, 105 U. 8. 612; 26 L. Ed. 1185......... 146, 164 v. Carpenter, 151 Fed. 214.......... «....008, 859, 427 v. Carter, 231 U. S. 492; 58 L. Ed. 830............ 370 v. Chaires, 40 Fed. 820.................cc cee eeas 183 v. Chandler, 65 Fed. 308.............c cc cece eens 274 v. Claasen, 46 Fed. 67........ ardie Sactone nee Smee 877, 392 v. Clark, 125 Fed. 92............. Ca Gale Wass aa 115, 142 v. Cobban, 127 Fed. 713.............. iioa vada teasrore ss 109 v. Collins, 146 Fed. 553........... 0... c cece ences 445 v. Collins, 79 Fed. 65.............. ccc eee eee e ees 28 v. Colo, 216 Fed. 654.000... 0c. cee cece eee 441, 446 v. Conners, 111 Fed. 734.......... cc ccc cece ees 30 v. Cook, 84 U.S. (17 Wall.) 168; 21 L. Ed. 538. .151, 236 v. Cooke, 209 Fed. 607.......... 0. cc ccc cece eens 67 v. Corbett, 215 U. S. 233; 54 L. Hd. 178............ 163 v. Cruikshank, 92 U. 8. 542; 23 L. Ed. 588. .186, 187, 148 v. Davis, 108 Fed. 457........ 0.0... eee eee ee 253, 327 v. Davis, 231 U. S. 188; 58 L. Hd. 177............ 370 v. Dawson, 15 How. 467; 14 L. Ed. 775............. 131 v. De Walt, 128 U. 8. 393; 32 L. Ed. 485.......... 114 v. Dickinson, 213 U. S. 92; 58 L. Ed. 711......... 370 v.. Dietrich, 126 Fed. 676...............0065 1, 150, 311 v. Doe, 127 Fed. 982.............. Sch heweees ... LIT v. Du Faur, 187 Fed. 812.............. ese eee eee 23 v. Dunbar, 83 Fed. 151......... 0... cc cee 19, 24 v. Dunne, 173 Fed. 254....... 0... cc eee ce eee eee 353 v. Eaton, 144 U. 8S. 677; 36 L. Hd. 591............ 1, 150 v. Eccles, 181 Fed. 906.......... "Reaceecaniite’ Asay tages 121, 152 v. Edgerton, 80 Fed. 374.............00e eee 104, 109 ‘v. El Paso & N. E. R. Co., 178 Fed. 846..........-- 139 v. Evans, 2 Fed. 147......... 00. e eee eeees 19, 23 a sasadaagddaddaddaaddadaeddaaaaada adadadag TABLE OF CASES 377 (REFERENCES ARE TO SECTIONS) S. v. Farrington, 5 Fed. 348...............0-00es 100, 105 S. v. Ferreira, 138 How. 40; 14 L. Ed. 42.............. 47 S. v. Fowkes, 58 Fed. 18........... cece cee e cee eees 435 S. v. French, 57 Fed. 382.......... Lie nvane demas 195 S. v. Gale, 109 U. S. 65; 27 L. Ed. 857........... 82, 185 .S. v. George, 228 U.S. 14; 57 L. Ed. 712.............. 370 S. v. German, 115 Fed. 987.......... 0... cece ewes 186 8. v. Gooding, 25 U. S. (12 Wheat.) 461; 6 L. Ed. 692 ieee wem anny aces eee eeeeeceeceeee -L40, 148, 163, 178, 332 S. v. Goodwin, 20 Fed. 2387........... cece eee eee 146 8. v. Green, 186 Fed. 618........... ccc cece cece eee 8 S. v. Green, 100 Fed. 941........... cece eee eee 27 S. v. Greene, 146 Fed. 777.........c ccc eee cece eens 242 S. v. Greene, 113 Fed. 683............ 0c cece eee eee 183 S. v. Greene, 108 Fed. 816............ ccc cee eee eee 84 S. v. Greenwald, 64 Fed. 6......... ccc cece eee eeees 362 S. v. Grimaud, 220 U. 8. 506; 55 L. Ed. 563........... 147 S.-i Haas) 167 Med. 20) cata cenee ns sakes gees 32 S. v. Harden, 10 Fed. 820...........0.. ee eseee eens 259 S. v. Hardyman, 13 Pet. 176; 10 L. Ed. 118...... 176, 179 S. v. Hart, 216 Fed. 374. ........ cece eee e eee ee eens 271 S. v. Haskell, 169 Fed, 449.................. 82, 105, 106 S. v. Haynes, 29 Fed. 691................ eee ee eeee 377 Biv. Hemize, 177 Weds 110s. enews nee sd ecient 109 S. v. Heinze, 161 Fed. 425....................0 0000 152 S. v. Hess, 124 U. 8. 483; 31 L. Ed. 516. .136, 146, 148, 321 S. v. Hinz, 35 Fed. 272. ........ 2.2 ccc cece eee eee eeee 271 S. v. Howard, 182 Fed. 325...............00000s 115, 119 8. v. Howell, 78 U.S. (11 Wall.) 482; 20 L. Hd. 195.... 154 S. v. Illinois Central R. Co., 170 Fed. 542........... _ 370 8. v. Jackalow, 66 U. S. (1 Black.) 484; 17 L. Ed. 225 131 S. ve dames, 14 Wed. B43. 50000: necsensnee nawas wewars 117 S. v. Jenkins, 176 Fed. 672............. 00 cece ceueee 26 S. v. Jones, 69 Fed. 973.......... ccc cece cece ee ees 81 S. v. Jones, 31 Fed. 725......-... cece cece eee eeees 103 8. v. Judges of the Circuit Court of Appeals for Indian ‘Territory, 85 Fed. 177.......... ccc eee e cece ree eeeee 20 8. v. Keitel, 211 U. S. 370; 53 L. Ed. 230............ 370 378 asgaasasaddadaddadadaadaddaddadaddadddddqaa RNARDANDNDADNNNNDANNNNNADNNRNRRDADAMNNNNRADDAAM MM ee TABLE OF CASES (REFERENCES ARE TO SECTIONS) . Kilpatrick, 16 Fed. 765............00..000. 105, 109 © . Kirby, 7 Wall. 482; 19 L. Ed. 278............... 14 . Kissel, 218 U. S. 601; 54 L. Ed. 1168........ 236, 237 . Klein, 80 U. 8. (18 Wall.) 128; 20 L. Ed. 519.227, 229 Romie, 194: Wed, SOT a aecwkumnannanc Sadaweadcen 217 Lair, 195 Fed. 47................. 119, 203, 358, 428 Lane, 221 Fed. 299........ 0. cc ccc cece ccees 362 Lee, 84 Fed. 626... Shiga, sey op er ixtaie Runes ec andndye, Blecolevnateay 30 Titinvien: 125 Fed, ce tity Granola ic petite euler 308 . Louisville & N. R. Co., 165 Fed. 936. . pbs eaves 153 2 McAleese, 93 Fed. 656. i euainth ier evecas ou Biecencdanind onediavs 430 . McHie, 196 Fed. 586............... ccc eee 4,5, 6 McKinley, 127 Fed. 168............. puieiaeendcls 119 . McKnight, 112 Fed. 982...................005. 222 . Malone, 9 Fed. 897......... 0... ccc c cece eee 164, 362 Marchant, 25 U. 8. (12 Wheat.) 480; 6 L. Ed. 700 159 Marcus, 538 Fed. 785...........ccccccceecceoes 176 Martin, 176 Fed. 110....................005. , 172 Martin, 28 Fed. 812................. oiss btishd adatactes 209 Marx 122 Wed. 964 co.cc ccs adicisis aislnis wer earewigs 124 Mason, 213 U. 8. 115; 53 L. Ed. 725..... 211, 217, 370 Mason, Fed. Cas. 15786.......... 0.0 0cceeeeeees 176 Matthews, 173 U. S. 381; 43 L. Ed. 788........ 13 . Matthews, 68 Fed. 880............. ccc cece eeeee 119 Maxey, 200 Fed. 997........... 0... ese ee eee 332 . Mayer, 235 U. 8. 55; 59 L. Hd. 129.............. 323 Merchants & Miners Transp. Co., 187 Fed. 355.... 183 Mills, 32 U.S. (7 Pet.) 188; 8 L. Ed. 686........ 173 » Mills, 185 Wed. 818.006 ccc eesin ieee eee ee oat 5 . Mitchell, 186 Fed. 896................0..008 4. 106 Moist, 231 U. S. 701; 58 L. Hd. 444.............- 370 . Moody, 164 Fed. 269............ 0... cece eee 147, 170 . Morgan, 222 U. 8. 274; 56 L. Hd. 198........ 32, 118 Morrison, 109 Fed. 891.............0ceeeeeeeee 196 . Munday, 222 U. 8. 175; 56 L. Wd. 149. c2.eaeee- 149 . aagsgasasassaag addaadadaaddadadadanaasaaaaag S. v. Munday, 211 Fed. 586.............0 cee ee eeeeee 112 S. v. Murphy, 224 Fed. 554.......... 0.0... cece eee 86 S. v; Nevin, 109 Wed, Solo. cvscieceneo texas yetaes 92, 183 S. v. Newark Improvement Co., 173 Fed. 426......... 131 S. v. New York C. & H. R. R. Co., 146 Fed. 298....... 158 S. v. Nickerson, 17 How. 204; 15 L.. Ed. 219.......... 215 8. v. Nixon, 235 U. S.. 231; 59 L. Ed. 207..... 115, 189, 370 Seve Nye Med: 888 sca oad sede aban onGqgatee beige 1 S. v. Olson, 57 Fed. 579..... 0.0... 0.0 ccc eee aint 209 S. v. Palan, 167 Fed. 991.......... 0. ccc cece ees 211 S. v. Patten, 226 U. 8. 525; 57 L. Hd. 333............ 370 S. v. Patterson, 29'Fed. 775..... ciel! Vatetnes 358, 365, 418 S. v. Peckham, 143 Fed. 625............. 0.00.00 33 S. v. Peeke, 153 Fed. 166.................000005 357, 437 S. v. Perrin, 181 U. S. 55; 33 L. Ed. 88............... 368 S. v. Peuschel, 116 Fed. 642........... 0... cc caeees 242 8. v. Philadelphia & R. Ry. Co., 221 Fad. 683. .103, 106, 109 S. v. Piaza, 183 Fed. 998............ cece eee eee eees 43 S. v. Pile, 180 U. S. 280; 32 L. Ed. 904............. 361 S. v. Pirates, 5 Wheat. 184; 5 L. Ed. 64.............. 317 S. v. Polite, 35 Ped. 58. 3.......c08es ee ceeeeesu wens 113 S. v. Portale, 285 U. 8. 27; 59 L. Ed. 111............. 370 S. v. Praeger, 149 Fed. 474....... 0... 0.0.00 cee ce eeee 241 S. v. Press Publishing Co., 219 U. S. 1; 55 L. Hd. 65...185 S. v. Pridgeon, 153 U. S. 48; 38 L. Ed. 631.......... Sees LapAee teehee eae wees ere oes, ae, Bee Sc. Radian: 190: Weds BiS aid aie aciomuee na aa 324 S. v. Randenbush, 33 U. 8. (8 Pet.) 288; 8 L. Ed. 948.. 216 S. v. Rauscher, 119 U. 8S. 407; 80 L. Hd. 425....... 38, 46 S. v. Reagan, 203 Fed. 483............. 00.00 sees 314 8. v. Reardon & Sons Co., 191 Fed. 454.............08. 189 S. v. Reaves, 126 Fed. 127........ ee ee 373 S. v. Reichert, 832 Fed. 142.................044. wee. 144 S. v. Reid, 12 How. 361; 18.L. Ed. 1023.......... 261, 320 S. v. Richardson, 28 Fed. 61..................... 81, 185 B. ¥. Riley, (2 Wed) QU, is cccwntstusrnes needs ewaue 168 S. v. Rockefeller, 221 Fed. 462............ 84, 99, 109, 183 8. v. Rogers, 150 U. S. 249; 37 L. Hd. 1071........... 131 TABLE OF CASES 379 ' (REFERENCES ARE TO SECTIONS) 380 ddddadssdgddaddddadddedaddddad dasddddaad S. v. Rogers, 23 Fed. 658............c0cccceeeee ‘ss 893 S. v. Rogoff, 163 Fed. 311............. 0.0 cee ee eee 208 8. v. Rosenberg, 74 U. 8. (7. Wall.) 580; 19 L. Ed. 263 192 S. v. Rosenthal, 121 Fed. 862..................0000- 109 S. v. Ruroede, 220 Fed. 210..............00 0 cee ees 27, 28 S. v. Sanges, 144 U. S. 310; 36 L. Ed. 445........ 215, 370 S. v. Sapinkow, 90 Fed. 654............ 0.0 cece cee 28 S. v. Shapeleigh, 54 Fed. 126................... 814, 395 S. v. Shipp, 203 U. S. 563; 51 L. Ed. 319............. 444 S. v. Simmons, 96 U. 8S. 360; 24 L. Ed: 819........... didi vena e hear operates Mamata cnatt Qatahaltaraae! 118, 120, 146, 163, 173, 174 S. v. Simmons, 46 Fed. 65........... 0.0 ceeeeee 106, 109 S. v. Sims, 161 Fed. 1008....................... ee 864 S. v. Smith, 40 Fed. 755....... 0... ccc cece cee eee 113 S. v. Snyder, 14 Fed. 554........... 00... cee 172, 275 S. v. Staats, 8 How. 41; 12 L. Ed. 979....... 138, 146, 162 S. v. Standard Oil Co. of Indiana, 154 Fed. 728....... 259 S. v. Stevenson, 215 U. S. 190; 54 L. Ed. 153...... 318, 370 S. v. Stockyards Terminal R. Co., 178 Fed. 19..... 162, 164 S. v. Stone, 8 Fed. 232............ cece eee cee ee eee 150 S. v. Stone, 185 Fed. 392................005 ie iaheee 151 8. v. Strickland, 25 Fed. 469...................005: 113- S. vi Sutton, 47 Ped. 129... 0. seesscawe ess vae cees oe 114 S. v. Swift, 186 Fed. 1002................... 182, 218, 273 S. v. Tarble, 80 (13 Wall.) 397; 20 L. Hd. 597......... 432 S. ¥. Taylors 11 Wed. 410.0 s6c:05 cate sages heme aan des 312 S. v. Terry, 39 Fed. 355............ 00.002 secu 104, 182 S. v. Thayer, 209 U. 8. 39; 52 L. Hd. 678.............. 129 S. v. Tom Wah, 160 Fed. 207............. cee ee eens 440 S. v. Tucker, 122 Fed. 518.............. 0. cece eee 135 S. v. Tully, 140 Fed. 899......... ei etea a eeneR we 135 S. v. Tureaud, 20 Fed. 621..... oe cece eee cee ees 113 S. v. Tyler, 11 U. 8. (7 Cranch.) 287; 3 L. Ed. 344.... 318 S. v. Union Supply Co., 215 U. S. 50; 54 L. Ed. 87. .352, 365 8. v. Upham, 43 Fed. 68........... 2. cece ee eee eens 117 S. v. Violon, 173 Fed. 501............. cece eee eee 105 S. v. Virginia-Carolina Chemical Co., 163 Fed. 66..109, 259 S. v. Walsh, 22 Fed. 644..............ceeeceeeeeee 392 TABLE OF CASES (REFERENCES ARE TO SECTIONS) » TABLE OF CASES 381 (REFERENCES ARE TO SECTIONS) U.S. v. Wells, 225 Fed. 320.......... 0... ccc eee e eee 113 U.S. v. Wells, 192 Fed. 870........... ccc ccc ete eeees 124 U.S. v. Wells, 163 Fed. 313............00.....005. 106, 111 U.S. v. Wentworth, 11 Fed. 52..................0000- 163 U. 8. v. Wilson, 32 U. 8S. (7 Pet.) 150; 8 L. Ed. 640.... is Sitar rateantata helerattnass Atsnacat hier ey Barth aed sul teat scleoway 217, 228, 229 U: S. v. Wilson, 163 Fed. 338.......... 0.00. c cece nen es 5 U.S. v. Wilson, 46 Fed. 748..........0. 0. cc cece cee eee 360 U. S. v. Wimsatt, 161 Fed. 586...................00005 3la U.S. v. Winslow, 195 Fed. 578........... 00. cc cece ues 172 U.S. °ve Wynn, 11 Feds 57 2 nc cgs cen caicevesieveeidek 363 Urquhart v. Brown, 205 U. 8. 179; 51 L. Ed. 750.......... 433 Uraua, in re, 188 Fed. 540.......... 0... cece cee ee eens 43 Utah, Hopt. v., 120 U. 8. 430; 30 L. Ed. 708.............. 254 Utah, Thiede v., 159 U. S. 510; 40 L. Ed. 287............ ies wade Gra aya alaseteaery Wee weit vig Crees ere 253, 264, 279, 299, 382, 383 Utah, Thompson v., 170 U.S. 343; 42 L. Ed. 1061......... 241 V Vallandigham, ex parte, 68 U. S. (1 Wall.) 248; 17 L. Ed. O89) cag aumiesw hia e wee eae aE eee eee eee awe eS 436 Van Gesner v. U. S., 153 Fed. 46............ 147, 162, 165, 368 Van Schaick v. U. S., 159 Fed. 847.......... Ree aes 314 Vermont, Consolidated Rendering Co. v., 207 U. S. 541; 52 L. Ed. 327 ds Wake letalia sige san uaa Gio ea eid eee ee we eae ee ES 4 Vermont, Hodgson v., 168 U. S. 263; 42 Li Ed. 461....... 293 ' Vernon v. U.S., 146 Fed. 121. ........ 0. cece cece cece 381 Virginia, ex parte, 100 U. 8. 339; 25 L. Ed. 676............ 429 Virginia v. Bingham, 88 Fed. 566...............000e0ee 78 Virginia v. Felts, 183 Fed. 85...............-0 eee 77, 79 Virginia v. Paul, 148 U. 8. 107; 87 L. Ed. 386..75, 77, 78, 421 Virginia v. Rives, 100 U.S. 8138; 25 L. Hd. 667.......... 72, 88 Vives v. U. S., 92 Fed. 855.......... cc cece eee eee eee 379, 384 WwW Wadge, in re, 15 Fed. 864............ 0c eee eee eee eee 42, 49 -- Wadley, Harkrader v., 172 U. 8. 148; 43 L. Ed. 399... .421, 422 Wahll, in re, 42 Fed. 822.......... ccc cece ee eee eee eee .. 29 382 TABLE OF CASES (REFERENCES ARE TO SECTIONS) Wales v. Whitney, 114 U. S. 564; 29 L, Ed. 277...... 404, 436 ‘Walsh. ve Uy By TT Wed. 208.0005 ciiccseleebenavvumvess 20 Walsh v. U. S., 174 Fed. 615............. 0... c eevee 301, 304 Walters, in re, 128 Fed. 791.......... 0. ccc cece cece eee 338 Ward, ex parte, 173 U. S. 452; 43 L. Ed. 765............. 427 Ward, Morgan v., 224 Fed. 698...........0:cccceeeeeeee 368 Ware v. U.S., 154 Fed. 577... 0.0... cc cece cece ee 237, 381 Warren v. U. S., 183 Fed. 718........... cece cece nee ee es 378 Washington, Craemer v., 168 U. 8. 125; 42 L. Ed. 407. .342, 406 Washington, Garland v., 232 U.S. 642; 58 L. Hd. 772..... 222 Wasserman v. U. S., 161 Fed. 722.................00000: 353 ‘Waterman, ex parte, 33 Fed. 29.......... 2... cece eee eens 258 Wayne, Halligan v., 179 Fed. 112............... 357, 358, 437 Webb v. York, 79 Fed. 616.............c ccc cece eee ee eee 65 Wechsler v. U. S., 158 Fed. 579........ 115, 162, 271, 273, 363 Weeks v. U. S., 232 U. S. 383; 58 L. Ed. 652............ 5 Weeks vy, 'U, S., 216 Ped, 298... .02s