justice or an abuse of judicial process. This case also held that a "presentment" is an action made by grand jurors upon personal knowledge or observance of the facts or upon the testimony of witnesses. In the case of Hillman vs. U. S., Circuit Judge Gilbert, speaking for the Court of Appeals for the Ninth Circuit, in 192 Fed. 264, said that pleas in abatement are to be strictly construed and that such a plea to an indictment that books containing incriminating evidence were wrongfully produced before the grand jury, was bad where it showed that the books belonged to corporations of which accused was president and not to him individually. It also held in that case that competent evidence upon which an indictment was founded, consisting of books and documents which were unlawfully seized and produced before the grand jury, is no ground for abating the indictment.

§ 13d. Motion to Quash Indictment or Other Dilatory Plea.-After the return of a bill into court, if there be any dilatory plea that the defendant thinks to lodge, he must speed to do so. A delay of five days in presenting such a plea may be fatal to him; and in the presentment of such a plea there must be specifically set out the causes and particulars of the injury to him. Agnew vs. U. S. 165 U. S. 36; Lowden vs. U. S. 149 Fed. 675; Wilder vs. U. S. 143 Fed. 439. The plea must be filed quickly and must show injury to the defendant. U. S. vs. Nevin, 199 Fed. 831; Hillman vs. U. S. 192 Fed. 264; Breese vs. U. S. 172 Fed. 761, 226 U. S. 1.

§ 13e. Information.-Having spoken several times in the different sub-divisions of this section of an information, it will be well to call attention to the fact that the Constitution of the United States, in its fourth amendment, provides, that no warrants shall issue, but upon probable cause, supported by oath or affirmation. The courts hold, however, that it is a limitation upon the powers of the federal government, but that it does not require an information filed. by a district attorney of the United States to be verified or supported by an affidavit based on personal knowledge, and showing probable cause, unless such information is made. the basis of an application for a warrant of arrest. Thus, in a prosecution against a corporation for the imposition of a fine or against a firm, for a fine under the Pure Food Act, for

instance, the information of the District Attorney need not be verified. 216 Fed. 292.

There are, however, small misdemeanors which, through the imposition of a fine, may result in imprisonment. Such prosecutions may be commenced by information, but invariably the information must be supported by oath.

In the case of ex parte Wilson, 114 U. S. 417, the court, in treating the fifth amendment to the Constitution, which inhibits all prosecutions for capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, authoritively decided the meaning to be given to the word "infamous" and that meaning is understood to be a crime punishable by imprisonment for a term of years in a penitentiary. Since, however, the adoption of the new code, there can be no trouble with reference to the meaning of this term, because the code specifically defines the word "infamous" or "felony" to mean such crimes as are or may be punishable by imprisonment in the penitentiary for more than one year.

§ 14. Preliminary Proceedings. We have heretofore noticed the provisions relating to the appointment of United States Commissioners. If warrant is secured prior to indictment, such warrant is issued under the hand and seal of the United States Commissioner, and the offender is brought before him for preliminary hearing, and is entitled to make his bail before that officer. The general authority for such procedure is found in Section 1014. If one be arrested in a district different from that in which he is indicted, he is entitled to be taken before the nearest United States Commissioner, who inquires into his identity, and fixes bail for his appearance before the proper Court of the proper district. If the prisoner cannot make the bail, application is made to the District Judge for a warrant of removal, under Section 1029.

The latest authority seems to be that upon proper application, the District Court may inquire into the validity of the indictment, so far as the jurisdiction is concerned, before ordering the defendant moved to the district in which the indictment was found. In United States vs. Smith, 173 Federal, this doctrine was announced, and the Court refused to remove the publisher of a newspaper in Indianapolis to the District of Columbia for trial. To the same effect is Findley vs. Treat, 205 U. S., 20; also 131 Fed., 968; U. S. vs. Green,

136 Fed., 618; United States vs. Peckham, 143 Fed., 625; 119 Fed., 93; in re Benson, 130 Fed., 486; United States vs. Green, 100 Fed., 941; Pereles vs. Weil, 157 Fed., 419. Probable cause is the only question to be inquired into when removal on indictment is asked. In re Quinn, 176 F., 1020.

§ 14a. Warrant to Issue-When? We have heretofore spoken briefly of amendment 4 to the Constitution, Chapter 1, but in this connection it will be well to repeat a provision of that amendment which reads as follows: "No warrant shall issue but upon probable cause supported by oath or affirmation." As the government grows larger and stronger and the people are further removed from their representatives and its officers, there will come a corresponding disregard of the individual's rights and an overlooking of the principles that were so jealously championed and so dearly purchased. There should never be the arresting of one in his right to walk where he pleases unless the Constitutional provisions authorizing such invasion of the citizen's right has been fully complied with. Judge Ray, in U. S. vs. Baumert, 179 Fed. 738, said that "However convenient and inexpensive it might be to ignore this provision of the Constitution, due regard for the rights of the citizen and the danger of gross abuses of the old system which had its basis in the now exploded idea that the King-that is the government— can do no wrong, led to the adoption of this amendment to the Constitution." A contention which holds that this provision of the Constitution is complied with when an information setting forth on information and belief the facts claimed to exist, is erroneous and such an information is not supported by "oath or affirmation." A court will not authorize the issuance of a warrant on an information made on the information and belief of the United States District Attorney, but it must be supported by proof establishing probable cause, to wit, legal evidence that a crime has been committed and that there is probable cause and belief that the accused is guilty of the commission thereof. U. S. vs. Baumert, 179 Fed. 735.

§ 14b.

Questioning of Indictment on Removal.In the last paragraph of Section 14 some cases are cited which practically settle it as a rule that the removing judge shall remove unless the validity of the indictment is properly

questioned, when warrant will be refused. In U. S. vs. Ruroede, 220 Fed. 210, it was held preliminary affidavit must state offense.

A broadening of this right is expressed in the case of U. S. v. Campbell, 179 Fed. 762, wherein the court held that a defendant may overcome the presumption that the offense was committed in the jurisdiction alleged in the indictment by appropriate evidence and show any other legal reason why removal should be denied. Commissioner has no authority to issue warrant of removal. Hastings vs. Murchie, 219 Fed. 83.

§ 14c.

Arraignment.-Arraignment of the defendant has been considered a necessary step in all criminal trials, and the failure to do so has frequently been considered reversible error. Bishop's New Criminal Procedure, Vol. 1, p. 434.

The Supreme Court of the United States, in Crain v. U. S. 162 U. S. 625, reversed a judgment of conviction because the record showed no form of arraignment and held that arraignment was essential to a legal trial and that in a federal court no valid trial could be held without the requisite arraignment and plea and that such must be shown by the record of conviction. Johnson vs. U. S., 225, U. S. 405.

In obedience to the popular demand for the effacement of as many technicalities in our court procedure as possible, the Supreme Court in Garland v. State, 232 U. S. 642, overruled its original decision in the Crain case and held that the arraignment is no longer required in the United States courts for the protection of the accused and said that technical objections originating in the early period of English history, when the accused was entitled to but few rights, are passing away and should not be allowed as to unimportant formalities, where the rights of the accused have not been prejudiced. Of course this decision does not mean in any sense of the word that a plea is not necessary. There is no way to join an issue between the accused and the sovereignty save and except by the entering of a plea, and if the defendant stand mute, the court shall enter a plea for him, and that plea shall be "Not guilty."

§ 15. Bail Bonds, Etc.-Under Section 1014, all bail bonds and recognizances are to be as near like those in

the state court as the difference in codes and practice will permit. In re Belknap, 96 Fed., 614; U. S. vs. Hunt, 166 U. S., 1063; U. S. vs. Lois, 149 Fed., 277. In United States vs. Zarafonitis, 150 Federal, 97, the Court held that all proceedings for holding an accused person to answer to a criminal charge before a court of the United States are assimilated to those under the laws of the state in which the proceedings take place, and the sufficiency of a bail bond taken in such proceedings is to be determined by the law of the state, though in Hardie vs. United States, 71 Fed., 158, the Court held that a bail bond taken before a United States Commissioner, though affidavit and information charge no offense, is good, and may be enforced. The United States may enforce a forfeited bail bond of recognizance by an action at law or scire facias. United States vs. zarafonitis, 150 Fed., 99; United States vs. Insley, 54 Fed., 221. In 170 Federal, 613, United States vs. Lee, the court held that an indemnified surety may be refused, and in the same Federal Reporter, at page 476, in United States vs. Marrin, the Court held that a defendant who goes where he can be arrested, and thus causes a breach of his bond, renders his sureties liable.

§ 15a. Bail During Trial.-Section 1015 of the Revised Statutes, which provides that bail shall be admitted upon all arrests for offenses not punishable by death, does not entitle the defendant, as a matter of right, to bail during his trial. U. S. vs. Rice, 192 Fed. 720. In 5 Cyc. the law is thus stated:

"Where the accused is free on bail he may be ordered into actual custody during the trial of the case, nor will bail be allowed during adjournments of the daily sessions of the court." In another list of citations in Judge Ray's opinion in the above case, it is held that it is within the discretion of the court to order defendants into actual custody, when the trial commenced.

In Texas there is a state statute which gives the defendant the right to go at liberty on his bond during the trial, and federal courts in that state recognize the state statute and follow that procedure, which statute would of course protect the sovereignty in any suit it might bring against the bondsman for a forfeited recognizance. The bondsman could not claim in the face of that statute that their obligation had