part of criminal proceedings against the accused within the meaning of the Fifth Amendment to the Federal Constitution,55 and that an indictment is not invalidated.by the fact that the accused was subpoenaed before the grand jury, there sworn against his protest and asked questions concerning the offense charged, to which he refused to answer upon the ground that he might thus incriminate himself; but indictments with no support except hearsay evidence 56 or evidence obtained by an illegal search may be set aside.57

"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 continuance of the sessions of such juries unnecessary."' 58 An indictment is void when found at a time when the grand jury is not authorized to hold its sessions.59 Unless discharged by the court, a grand jury retains its powers until the end of the term, although it does not continue in session, and has been relieved from service.60 Although, perhaps, the members have then no right to reassemble on their own motion, and to find indictments,61 it may be recalled by the court, and then reassume all its functions.62 Objections to irregularities in the summons, the panel and the organization of a grand jury, must be made by a plea in abatement or motion to quash and are waived by a plea of "not guilty," unless the proceedings are absolutely void.63 It has been held that a grand jury which has not completed its investigation of a particular matter may be authorized to continue in session for the purpose of such investigation during the following term.64

§ 511a. Inspection of the minutes of the grand jury. Ordinarily a defendant is not entitled to inspect the minutes of the grand jury. Such a motion will not be granted to see what

3

evidence there was.2 Such a motion may perhaps be granted when it is shown that the indictment was found without any legal or competent evidence sufficient to support it; or was the result of fraud, or corruption, or intimidation, or, it has been suggested, caprice and was not the expression of the fair judgment of the grand jury upon the facts, or by an invasion of the constitutional rights of the accused such as the use of papers obtained through a search warrant forbidden by the Fourth Amendment. The motion must be supported by affidavits which raise a reasonable presumption that the minutes will prove such misconduct on the part of the grand jury. When the affidavits on behalf of the accused tend to show this they should be answered by the Government; or else the motion may be granted. The fact that incompetent evidence was given before the grand jury will not justify the inspection, unless it appears that there was no competent evidence sufficient to make a prima facie case in support of the indictment.9

§ 512. Challenges to grand jurors. A party under bail may challenge individuals upon the grand jury for prejudice or lack of qualification.1 When his objection goes to the whole of the panel, he may challenge the array. The same right is possessed by any individual who has notice that a complaint against him is to be brought before a grand jury. If he does not do so immediately after he has received notice of such investigation, and of any objections to the constitution of the grand jury or of the manner of its selection or of the proceedings before it, it may be held that they are waived by him, and

Fed. 501; McKinney v. U. S., C.
C. A., 199 Fed. 25; U. S. v. Rubin,
214 Fed. 507; U. S. v. Perlman, 247
Fed. 158; U. S. v. Silverthorne, 265
Fed. 853.

2 U. S. v. Perlman, 247 Fed. 158.
3 U. S. v. Rubin, 214 Fed. 507;
U. S. v. Perlman, 247 Fed. 158; U.
S. v. Silverthorne, 265 Fed. 853.

4 U. S. v. Gouled, 253 Fed. 242. 5 Ibid.

6 U. S. v. Silverthorne, 265 Fed.

7 U. S. v. Rubin, 214 Fed. 507; U. S. v. Silverthorne, 265 Fed. 853. 8 U. S. v. Rubin, 214 Fed. 507. 9 U. S. v. Rubin, 214 Fed. 507; U. S. v. Perlman, 247 Fed. 158; U. S. v. Silverthorne, 265 Fed. 853.

§ 512. 1 U. S. v. Richardson, 28 Fed. 61.

2 Agnew v. U. S., 165 U. S. 36, 44, 41 L. ed. 624, 627.

3 Agnew v. U. S., 165 U. S. 36, 44, 41 L. ed. 624, 627.

that it is too late to raise them after an indictment has been found against him.*

§ 513. Manner of taking objections to an indictment. Objections to an indictment may be raised: by a motion to quash the same; 1 by a plea in abatement; 2 or by a demurrer. Objections which are purely technical and not based upon a constitutional right, must be raised at the first possible moment. The objection, that the indictment does not charge an offense under the laws of the United States may be raised at any time.5 An irregularity in the organization of a grand jury, which does not affect their authority to sit, is waived if the accused goes to trial without raising the same.

§ 514. Arraignment. The arraignment is the call of the prisoner to the bar, of the court, to answer the matter charged upon him in the indictment. This usually takes place upon the first day of the term.

The arraignment is an essential part of the proceedings.2 The interposition of a plea is conclusive evidence that the prisoner has been duly arraigned. It has been held: that if the record shows no arraignment or plea, the judgment must be reversed, although no objection was interposed below, and the record. states that a jury was duly empanelled and sworn to try the issue joined and after hearing the evidence rendered a verdict of guilty; or although there is a bill of exceptions which states that the issue joined came on to be tried. These decisions however have been severely criticised and seem now to be overruled. When a second information has been filed for the same offense after the reversal of a conviction upon a previous informa

5

4 Agnew v. U. S., 165 U. S. 36,

44, 41 L. ed. 624, 627.

§ 513. 1 § 515, infra.

2 § 517, infra.

3 § 516, infra.

4 Breese v. U. S., 226 U. S. 1, 57 L. ed. -.

5 U. S. v. Barcow, 10 Fed. 874, 20 Blatchf. 349; Morris v. U. S., C. C. A., 168 Fed. 682; Mossew v. U. S., C. C. A., 266 Fed. 18; infra, § 531. 6 Ex parte Harlan, 180 Fed. 119.

§ 514. 1 Blackstone, IV., 322.

2 Crain v. U. S., 162 U. S. 625, 40 L. ed. 1097; Shelp v. U. S., C. C. A., 81 Fed. 694.

3 Shelp v. U. S., C. C. A., 81 Fed. 694; Shidler v. U. S., C. C. A., 257 Fed. 620, 624.

4 Ibid.

5 Ibid.

6 Shelp v. U. S., C. C. A., 81 Fed. 694.

7 Garland v. State of Washington, 232 U. S. 642, 58 L. ed. 772.

tion to which a plea of not guilty had been filed, the judgment of a State court should not be reversed because of the absence of an arraignment or plea upon the second information when there has been trial by jury of the truth of the facts therein and no objection to this effect has been made upon the trial.

No second arraignment or plea is required when a new trial is ordered. And when a plea of not guilty is made and withdrawn in order that defendant may demur or move to quash the indictment, by going to trial after such demurrer or motion has been overruled, the defendant is presumed to renew his plea.10 When there are several counts and a plea to only one of them the defendant can be convicted upon such count alone.11

"When any person indicted for any offense against the United States, whether capital or otherwise, upon his arraignment stands mute, or refuses to plead or answer thereto, it shall be the duty of.the court to enter the plea of not guilty on his behalf, in the same manner as if he had pleaded not guilty thereto. And when the party pleads not guilty, or such plea is entered as aforesaid, the cause shall be deemed at issue, and shall be tried by a jury." 12 This statute applies to a prosecution by information.13 It applies to offenses created by statutes subsequently enacted.14

It is usual custom to grant the prisoner leave to withdraw his plea of not guilty and to file, within a limited time thereafter, a demurrer or plea in abatement, 15 or sometimes a motion to quash the indictment; 16 but he has no absolute right to obtain such permission.17 It has been held that this does not enable

8 Ibid.

9 U. S. v. McKnight, 112 Fed. 982. 10 O'Hara v. U. S., C. C. A., 129 Fed. 551.

11 Beck v. U. S., C. C. A., 145 Fed. 625.

12 U. S. R. S., § 1032; Re Smith, 13 Fed. 25; Shidler v. U. S., C. C. A., 257 Fed. 620, 624.

18 U. S. v. Borger, 7 Fed. 193 (19 Blatchf. 249).

14 U. S. v. Hare, 2 Wheeler, Crim. Cas. 283, Fed. Cas. No. 15,304; U.

S. v. Gibert, 2 Sumner 19, Fed. Cas.
No. 15,204.

15 Post v. U. S., 161 U. S. 583, 40 L. ed. 816. See infra, § 516.

16 U. S. v. Lewis, 192 Fed. 633. See infra, § 515.

17 Holt v. U. S., 218. U. S. 245, 247, 54 L. ed. 1021, 1028; Waller v. U. S., C. C. A., 179 Fed. 810; U. S. v. London, 176 Fed. 976; U. S. v. Lewis, 192 Fed. 633; Billingsley v. U. S., 249 Fed. 331.

a party to present an objection which is purely technical.18 The better practice is to ask for leave at the time of the arraignment. The trial of a case without the entry of a plea of not guilty is erroneous.19 After a defendant has filed a plea of not guilty, it is not necessary to ask him how he will be tried, for the plea includes everything essential to put him on trial by jury.20

§ 515. Motions to quash an indictment. A motion to quash an indictment is usually addressed to the discretion of the court.1 Ordinarily, it must be founded upon a legal objection to the proceedings, which appears upon the record, and must clearly be decided in favor of the defendant.2 "On motions to quash, the court accepts only such propositions as raise clear points of law. Any involved question should be raised by demurrer or motion in arrest of judgment, where the court must meet the issues and dispose of them, holding them under consideration if necessary for that purpose; but a motion to quash, being addressed to the discretion of the court, and interposing avoidable delays, unless clearly justified, should be decided on the spot, and therefore our practice as to such motions is as stated.

Objections to the qualifications, the summons, or the selection of the grand jurors, or to irregularities in their proceedings and deliberations,5 or, it has been held, to the illegality of the proof, upon which they have acted, may be raised by

18 Breese v. U. S., 226 U. S. 1, 57 L. ed. -.

19 Palmer v. U. S., Washington, Ty. 5.

20 U. S. v. Tibert, 2 Sumner 19, Fed. Cas. No. 15,304.

$515. 1 U. S. v. O'Sullivan, Fed. Cas. No. 15,974; U. S. v. Stowell, 2 Curtis, 153, Fed. Cas. No. 16,409; U. S. v. Grunberg, 131 Fed. 137.

2 U. S. v. Grunberg, 131 Fed. 137. 3 U. S. v. Grunberg, 131 Fed. 137, 138, per Putnam, J.

4 Re Nicholls, 5 N. J. L. 539; Rex v. Belanger, 6 Canada Crim. Cas. 295; State v. Lawrence, 12 Oregon 297, 22 Cyc. 419. But see People v. Petrea, 92 N. Y. 128; U. S. v. Tallman, 10 Blatchf. 21 Fed. Cas.

No. 16,429. The illegal registry of one of the grand jurors is not a ground for quashing an indictment, although the State law requires that the grand jurors should be registered electors. U. S. v. Ewan,

40 Fed. 451.

5 U S. v. Terry, 39 Fed. 355; Commonwealth v. Bradney, 126 Pa. St. 199, 17 Atl. 600; State v. Dayton, 23 N. J. L. 49, 53 Am. Dec. 270. See § 511, supra.

6 U. S. v. Farrington, 5 Fed. 343; McGregor v. U. S., 134 Fed. 187. But see U. S. v. Price, C. C., S. D. N. Y. August, 1908, N. Y. L. J. Sept. 9, 1908; supra, § 511a. But see supra, § 482.