now Section 268 of the Judicial Code. See, also, for bankruptcy contempts, U. S. v. Henkel, 185 Fed. 553.

§ 12. Prosecution Begun by Indictment. While there remain some few statutes that impose punishments sufficiently light to permit prosecution to be begun by information, most prosecutions must be begun by indictment. See also § 5a.

§ 13. Grand Jury and Indictment.-Constitutional amendment 5 guarantees that no person shall be held to answer unless upon presentment or by indictment. We have learned in § 5a that all offenses which may be punishable by a term in excess of one year, must be begun by indictment. A grand jury, under Section 808 of the Revised Statutes, must consist of not less than sixteen nor more than twentythree men, twelve of whom must vote in favor of a bill before it can be legally returned. Section 1021 R. S. Section 282 of the new Judicial Code provides that every grand jury shall consist of not less than sixteen nor more than twentythree persons and that if of the persons summoned, 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 sufficient number of persons to complete the grand jury. Judicial Code Section 282.

Section 276 of the Judicial Code specifies the method for drawing jurors and provides for a commission to perform this service. It is not legal to summon thirty men to serve on a grand jury and then to cull therefrom twenty-three for actual service. U. S. v. Lewis, 192 Fed. 633. But see U. S. v. Breeding, 207 Fed. 645, where the court held that the summoning of thirty veniremen for grand jury service and thereafter when more than twenty-three answered a standing rule of the court provided that an alphabetical list of those present should be made and of such list the first twenty-three should compose the grand jury, it was legally constituted under the present statutes.

Judge McDowell, in reasoning his conclusions to support the last decision, said "The first objection to summoning more than twenty-three veniremen is, of course, the seeming difficulty in fairly selecting those who are to serve. The rule of court above-mentioned certainly wholly obviates this

objection. This rule being followed, it is a matter of pure chance. There is no room for even any suspicion of unfairness in selecting the grand jury of twenty-three from the qualified veniremen present. The only remaining objection that occurs to me must be found in a supposed implication from the statutory requirement, Section 808 R. S.; Section 282 Judicial Code, that grand juries shall not exceed twenty-three members. There is certainly in the statute no express inhibition against summoning more than twentythree veniremen, and there are some very strong reasons against finding in the statute any implied inhibition." As for instance the loss of time in waiting for the marshall to summon talesmen from the body of the district.

It is not error for the court to instruct the marshal to summon additional names as provided by the statute even though as many as sixteen have responded to the original summons. In other words, the court, finding but sixteen men on a responding grand jury venire may direct the marshal to summon from the body of the district five or more names to bring the number up to twenty-three, if he sees fit. U. S. vs. Nevin, 199 Fed. 831.

So also a venire of jurors may be drawn and examined for a term, in accordance with the statute, without designating them as grand or petit jurors, and at the term a grand jury may be selected therefrom, where such is the state practice. U. S. vs. Breese, 72 Fed. 765, affirmed U. S. Supreme Court, 226 U. S. 1.

Under the authority of Section 802 R. S. the court may provide that 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 unnecessary expense or to unduly burden the citizens of any part of the district with such service. May vs. U. S. 99 Fed. 54.

Under a statute declaring that the names first drawn from a jury box shall constitute the grand jury, and the later the petit jury, a grand jury from which jurors whose names were first called were improperly excused, and their places filled by persons whose names were thereafter drawn from the box, was illegal.

The bill must be returned into open court and it must be returned by the foreman who shall be accompanied by the

rest of the grand jurors. I am fully aware that the case of U. S. vs. Breese, reported in 172 Fed. 765, held that where the record in a criminal case showed that the indictment was properly endorsed "a true bill" by the foreman of the grand jury and where it was conceded that the indictment was found by a vote of the requisite number of grand jurors and after being properly endorsed by the foreman, was taken by him into the court room which opened from the grand jury room and presented to the judge on the bench when the court was in session and by him handed to the clerk, such indictment was held to be valid. If this decision is based upon the fact that the balance of the grand jurors could be seen from where the presiding judge sat or upon the fact that the balance of the grand jurors had the foreman in sight all the time, then the same reasoning would permit the foreman to walk unaccompanied by the remainder of the grand jurors a mile or across a Texas prairie so long as he was in sight of either the judge or the rest of the grand jurors. When the case got to the Supreme Court, as shown in Vol. 226, p. 1, that body affirmatively answered the questions of the Circuit Court of Appeals which was passing upon the writ of error as to affirming the judgment of conviction, but the opinion specially states that the mode of presentment followed was the mode prescribed by the laws of North Carolina, and also states that the objections made to this manner of presentment came too late and if there was any objection to such presentment, it was cured by Section 1025 of the Revised Statutes which will not permit an indictment to be held defective because of matters of form only, and the court said that "We do not think it necessary to discuss the condition that the fifth amendment to the Constitution requires the indictment to be presented by the grand jury in a body or that their failure so to do goes to the jurisdiction of the court." When a grand jury has found its indictments it returns them into open court, going personally and in a body, a duty which is more or less regulated by statutes in various states. Vol. 2, Bishop's New Criminal Procedure, Second Edition, Section 869a, Par. 3. Renigar vs. U. S. 97 C. C. A. 172, 172 Fed. 646. See also Section 17 post.

Judge Trieber in U. S. vs. Lewis, 192 Fed. 834, held that the selection of a grand jury is a matter of substance which cannot be disregarded without prejudice to the accused and is not

a mere defect of form such as Section 1025 R. S. requires to be disregarded and therefore an indictment was vitiated by an order for the drawing of thirty-six names for the formation of a grand jury, which permitted the marshal to summon twenty-three persons to be selected by him from the thirtysix drawn. Grand jury must be drawn by only those authorized by sec. 276, Judicial Code. U. S. vs. Murphy 224 Fed. 554.

§ 13a. Grand Jury, Continued.-While Federal prosecuting officers are not bounden by any rule or statute to permit a defendant or his witnesses to present their side of a question which is being investigated, yet the careful prosecutor, careful of the reputation of the citizen, often avails himself of the opportunity to permit the defendant to have his day before the grand jury. A citizen would seem to have the right to enjoy immunity from indictment, if not guilty, as fully as he has the right to enjoy immunity from punishment, if not guilty. Under the common law, however, which, in the absence of statute, controls the procedure in the United States courts, a grand jury hearing was an ex parte proceeding, at which the sovereignty alone was heard.

In Book 4, at page 302, of Blackstone's Commentaries, it was said that the grand jury are previously instructed in the articles of their inquiry by a charge from the judge who presides upon the bench. Then they withdarw to sit and receive indictments, which are preferred to them in the name of the King, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution; for the finding of an indictment is only in the nature of an inquiry or accusation which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths whether there be sufficient cause to call upon a party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes; and not to rest satisfied merely with remote probabilities; a doctrine that might be applied to very oppressive purposes.

Mr. Justice Fields, speaking for the Supreme Court of the United States in 2 Sawyer, 668, observed in substance that the grand jury, while originally for the convenience of the

Crown, under our institutions should be the protector of the citizen.

One has not, however, as a matter of law, the right to appear and testify before a grand jury which is investigating a case against him. U. S. vs. Bolles, 209 Fed. 682.

§ 13b. Copy of the Indictment.-A copy of the indictment is not furnished as a matter of course to defendants. When a prosecution is for treason, however, or other capital offense, then a copy of the indictment and a list of the jurors and witnesses, must be delivered to the defendant, in the first instance at least three days before trial, and in the last instance at least two days before trial, in accordance with Section 1033. In other cases, however, copy of the indictment is unnecessary. Balliet vs. U. S. 129 Fed. 689; Jones vs. U. S. 162 Fed. 417; Ball vs. U. S. 147 Fed. 32; U. S. vs. Van Duzee, 140 U. S. 173. In a capital case this provision applies only to the list of the regular panel of jurors and not to talesmen. Stewart vs. U. S. 211 Fed. 41.

§ 13c. Evidence Before Grand Jury.-Indictment should be based on legal evidence. To warrant the return of an indictment it should be based on competent legal evidence such as is legitimate and proper before a petit jury. 20 Cyc. 1346; U. S. vs. Kilpatrick, 16 Fed. 765, U. S. vs. Reed, Fed. Cas. No. 16134. Thus the report of an assistant attorney general would not be competent legal evidence in a trial upon an indictment charging use of the mails in execution of a scheme to defraud, nor upon a charge of the use of the mails in carrying out a lottery scheme. It would not, therefore, be proper to submit it to the grand jury. Harrison vs. U. S. C. C. A. 200 Fed. 673.

The court in a criminal case, however, will not inquire into the evidence before the grand jury to ascertain whether it was all competent or sufficient to warrant the indictment, when such a plea is verified on information and belief only. U. S. vs. Nevin, 199 Fed. 831.

In the case of McKinney vs. U. S. 199 Fed. 25, the court held that a trial court cannot be required to review the evidence before a grand jury to determine its sufficiency or whether incompetent evidence was received, unless the case was an extreme one and unless it was to prevent a clear in