been fulfilled when there was an announcement of "ready" or when the case went to trial because they would have executed the bond with full knowledge of the statute which gave their principal this right.

§ 16. Challenges.-Section 819 of the Revised Statutes allows the defendant twenty challenges, and the United States five peremptory challenges, when the offense is treason or capital. On the trial of any other felony, the defendant is entitled to ten; and the United States to three peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges. Under Section 335 of the 1910 Code, however, all offenses which may be punished by death or imprisonment for a term exceeding one year are felonious, and all other offenses misdemeanors, and it is now an easy matter to determine just how many challenges the defendant is entitled to. If, however, there be more than one defendant, and the trial is had without severance, the defense will be allowed no more challenges than if there were but one defendant on trial, R. S. 819.

Challenges Under the New Code.-Heike vs. U. S., 192 Fed. 101. After consolidation of indictments, see Emanuel vs. U. S., 196 Fed. 317.

In a note to Jeff Harrison vs. United States, 163 U. S., 140, as reported in the 41 Lawyers Reports Annotated, at page 104, is a very valuable compilation of the decisions involving the following points:

As to trial by jury, how affected by Seventh Amendment to the Constitution, New York Supreme Court Justices vs. United States, reported in 76 U. S., 282.

As to jury, of what number; practice in regard to; illness or insanity of one; thirteen or eleven jurors; wrong person serving as juror by mistake; Silsby vs. Foote, 14 Howard, 218; 14 Law Ed., 394, and the notes on page 394 of the 14 Law Ed.

As to causes of challenges of jurors and their qualifications, Clinton vs. Englebrecht, 80 U. S., 449, 13 Wallace; 20 Law Ed., 659, and the note.

As to discharge or withdrawal of jurors before verdict, effect of, United States vs. Perez, 9 Wheat., 578; Vol. 6, Law Ed., 165.

As to impeachment of verdict byj urors; affidavit of parties or third persons; affidavits of jury to sustain verdict Doss vs. Tyack, 14 Howard, 296; 14 Law Ed., 428, and note thereunder.

Challenges to jurors; challenges to the array and to the panel; challenges to individual jurors; peremptory and for cause, full and complete note on page 104 of Book 41, Law Ed.

§ 16a. Consolidation of Indictments.-Under the Federal statute the court has the power to consolidate either civil or criminal causes and when many indictments of the same sort against the same party are consolidated they merely become so many counts in the new bill. Such was the holding in the National bank prosecution of Keltenbach vs. U. S. 202 Fed. 377, and after such consolidation the former indictments becoming mere counts in the last indictment, the defendant is entitled to but ten challenges because he is now on trial for but one indictment. Keltenbach vs. U. S. 202

Fed. 377.

§ 166.

Impeachment of Verdict by Juror.-Public policy forbids that a juror shall be allowed to orally or by affidavit or otherwise impeach his verdict, or in any way disturb the result arrived at by himself and his fellows.

In one or two of the states such practice is permitted, but the rule in the United States courts is against such procedure. McDonald et al. vs. Pless et al. 206, Fed. 262; Doss vs. Tyack, 14 Fed. 296, 14 L. ed. 428; Hyde vs. U. S. 225 U. S. 347. See also Section 25.

17.

Indictment and Return of Same.-The indictment should always be returned into open Court by the entire grand jury. The best practice is for the grand jury to be polled when they report an indictment. Of couse, there must be at least sixteen present when indictments are presented, which sixteen must include the foreman.

In 172 Federal, page 646, Reingar vs. United States, the Circuit Court of Appeals held that an indictment delivered by the foreman alone to the clerk of the Court when Court was not in session, is not a bill of indictment within the meaning of the Constitution. I am sure this opinion states the law.

In the same volume of the Federal Reporter, in the case of the United States against Breese, the District Court, upon a somewhat different state of facts, holds a little bit differently, but the Reingar case, cited supra, is undoubtedly the law. See also Section 13.

§ 17a. Endorsements on Indictments.-In the case of Williams against the United States, 168 U. S., 382, the Supreme Court held that endorsements on the margin of an indictment, referring to certain statutes which do not support it, although they may have been erroneously supposed to do so by the District Attorney who drew it, do not make the indictment invalid, if it properly charges an offense under another statute. The exact words of the Court are as follows:

"It is said that these indictments were not returned under that statute [5481], and that the above endorsement on the margin of each indictment shows that the District Attorney of the United States proceeded under other statutes that did not cover the case of extortion committed by Chinese Inspector under color of his office. It is wholly immaterial what statute was in the mind of the District Attorney when he drew the indictment, if the charges made are embraced by some statute in force. The endorsement on the margin of the indictment constitutes no part of the indictment, and does not add to or weaken the force of its averments. We must look to the indictment itself, and if it properly charges an offense under the laws of the United States, that is sufficient to sustain it, although the representative of the United States may have supposed that the offense charged was covered by a different statute."

To be in good form, the bill should be signed upon the cover by the prosecuting officer and by the foreman of the Grand Jury, and should be endorsed, "A true bill," and should bear the file marks of the clerk; but if the bill be signed inside by the prosecuting officer and by the foreman of the Grand Jury, the Courts hold that such signatures are sufficient.

It is entirely immaterial what provisions the various states may make with reference to the forms of indictment therein; the Federal statutes control in the enforcement of the Federal criminal law.

$ 18.

Consolidation of Indictments.-By Section 1024 of the Revised Statutes, several charges against the

same person may be included in the same indictment, and separate indictments against the same person for the same class of crimes may be consolidated by the order of the Court. Williams vs. United States, 168 U. S., 388; Pointer vs. United States, 151 U. S., 396; Logan vs. United States, 144 U. S., 301. In the case of United States against Dietrich, 126 Fed., 670, the doctrine is made clearer by being distinguished, and the Court there holds two persons cannot be indicted in the same count, one for giving, and the other for receiving bribe.

The case of McElroy vs. United States, 164 U. S., 76, does not in decision or dictum differ from the above authorities. The inquiry in that case was, "whether counts against five defendants can be coupled with a count against part of them, or offenses charged to have been committed by all at one time, can be joined with another and distinct offense committed by part of them at a different time." The Court in that case held that the statute did not authorize that to be done, and speaking thereupon, said: "It is clear that the statute (1024) does not authorize the consolidation of indictments in such a way that some of the defendants may be tried at the same time with other defendants charged with a crime different from that for which they all are tried." This decision, of course, does not interfere with the statute, or the doctrine announced by Mr. Justice Harlan in the Williams case, cited supra, that, "The indictments against the same person charging offenses of the same kind, provable by the same sort of evidence, can be consolidated and tried together without embarrasssing the accused in making his defense." This doctrine is approved in Olson vs. United States, 133 Fed., 852; Dolan vs. United States, 133 Fed., 447, and distinguished, but not controverted, in Betts vs. United States, 132 Fed., 240. See Section 16.

§ 19. Question of Duplicity in Indictment. It is too late to raise the question of duplicity after verdict by motion in arrest of judgment. Morgan vs. U. S., 148 F., 190; Bishop's New Crim. Proc., Vol. 1, Sections 442, 443; U. S. vs. Bayard, 16 F., 376; Proler vs. U. S., 127 F., 509; Conners vs. U. S., 158 U. S., 408. The safe practice is to raise all questions speedily by exception or demurrer.

In Ammerman vs. U. S., 216; Fed. 326, the Circuit Court of Appeals dismissed the indictment because of duplicity. A

charge that defendant attempted to rob a mail clerk and put his life in jeopardy is not duplicitous. Price vs. U. S., 218; Fed. 149.

§ 20. Confessions.-Because of the adoption by many of the States of statutes which prescribe certain conditions limiting or admitting confessions of those charged with crime in evidence, it is well to bear in mind that no statute bearing thereon has been passed by Congress. The Fifth Amendment to the Constitution and Section 860 of the 1878 Revised Statutes, that bear upon such testimony, are as follows:

66

Nor shall any person be compelled, in any criminal case, to be a witness against himself."-Fifth Amendment to the Constitution.

"No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence or in any manner used against him or his property or estate in any court of the United States in any criminal proceedings, or for the enforcement of any penalty or forfeiture; provided, that this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying, as aforesaid."-Section 860, 1878 Revised Statutes, U. S.

Of course, the limitations and meaning of Section 860 have been determined and decided repeatedly. In 170 Federal, 715, Cohen vs. United States, the Court held that it applied to bankrupt schedules, and that, therefore, such schedules were not admissible against the bankrupt. The contrary was held in United States vs. Brod, 176 Federal, page 165, and the latter is perhaps the ranking authority. In United States vs. Bell, 81 Federal, 830, the Court held that the constitutional protection was broader than Section 860, and in passing upon a prosecution for perjury, alleged to have been committed in a statement made before a Pension Examiner by an ignorant person, such statement was excluded on the proposition that while the person appeared before the Examiner, and submitted to the examination, yet such appearance was not conclusive that the statement was voluntary, and that the constitutional right of the person to remain silent had not in fact been infracted. See also sec. 7.

The sole legal test in the Federal courts, of a confession is whether the same was free, voluntary, and without com