§ 2171. Jurisdiction.- The verdict of guilty finds the precise offense charged in the indictment, and unless the indictment clearly shows that it was committed within the jurisdiction of the court, the court will not proceed to judgment. United States v. Dow,* Taney, 34.

2172. Conspiracy to commit breach of peace.-Counts in an indictment in a federal court which charge nothing more than a conspiracy to commit a breach of the peace in a state are insufficient. United States v. Cruikshank, 2 Otto, 556 (CONST., §§ 898-911); affirming 1 Woods, 303.

$2173. Name.- A person is well described in an indictment by the name by which he is generally known, whether it be the first, the second, or the third of his given names. Thus an indictment is proper which describes a person as D. K. Olney Winter. United States v. Winter,* 13 Blatch., 276.

§ 2174. "Steers" and "working cattle," when used in an indictment, are synonymous. In ordinary conversation they mean cattle that have worked. Wessels v. The Territory,* McCahon, 100.

$2175. Grand jury.- An indictment is good though the word "grand" is omitted before the word jury in the beginning of the indictment. United States v. Williams, 1 Cliff., 13.

2176. The names of the grand jurors who find the indictment in the circuit court of the United States need not appear in the indictment itself, where such is the practice of the courts of the state in which the court sits, although the practice in the king's bench is different. United States v. Crawford,* 1 N. Y. Leg. Obs.. 338.

$2177. The designation “foreman,” appended to the name of the person signing the indictment, as such, is sufficient, as the designation "foreman" refers to the introductory clause of the indictment and to the record, as verifying the legal inference that "foreman" means foreman of the grand jury. United States v. Plumer, 3 Cliff., 71.

$2178. The court. Where the court described in the caption of an indictment was "the United States district court of the territory of Montana for the second judicial circuit," and the court as thus described was unknown to the territory, but the record accompanying the indictment showed that the indictment was found by the grand jury of the district court of the second judicial district of the territory of Montana, which court had undoubted jurisdiction to find such indictment, the wrong description of the court in the caption of the indictment was held not to vitiate the indictment, the record showing that the court in which the indictment was found had jurisdiction of the offense. United States v. Upham,* 2 Mont. Ty, 170.

$2179. The act of April 20, 1818, dividing the district of Pennsylvania into two districts. and creating two district courts in that state instead of one, but when did not create a new circuit court for the western district, and left the circuit court to remain as it was before, could not vitiate the caption in an indictment in the circuit court stating a circuit court of the United States in and for the Pennsylvania district. Nor is it an objection that the caption states the presentment to be by the grand jury of the United States, inquiring for the district of Pennsylvania, since such statement is consistent with the truth. United States v. Wood,* 2 Wheeler, 325.

$2150. Names of witnesses.- Where a statute requires the names of the itnesses to de indorsed upon the indictment in cases of misdemeanors, and such indorsement has been omitted, the attorney for the prosecution may make such indorsement at the trial with the permission of the court. Territory of Wyoming v. Anderson,* 1 Wyom. T'y, 20.

§ 2181. The fact that the names of the defendants in an indictment appear upon the indictment as witnesses before the grand jury will not sustain a motion to quash the indictment when there are other witnesses upon the indictment on whose testimony alone the indictment may have been found. United States v. Brown,* 1 Saw., 531.

§ 2182. In prosecutions in the federal courts it is not necessary that the names of the witnesses for the prosecution be indorsed on the indictment or information. United States v. Shepard, 1 Abb., 431 (§ 3195-99).

$2183. Name of prosecutor. It was not necessary at common law that the prosecutor's name should be written at the foot of the indictment. Nor is it necessary that it should appear there, under the laws of the United States, in order that the informer shou'd be made liable for costs, since congress has enacted that, if the prosecution fails, the informer shall pay costs, without prescribing that his name shall be written at the foot of the indictment. Act May, 1792, cap. 33, § 5. United States v. Mundell,* 6 Call (Va.), 215; 1 Hughes, 415; Fein v. Territory,* 1 Wyom. T'y, 376.

§ 2184. It is not necessary that the name of the prosecutor should be written at the foot of an indictment found in a federal court. Although the laws of the state in which the court is sitting require it to be done where the prosecution is at the instance of an individual, for the purpose of rendering him liable for costs, yet that does not prevent the attorney for the government from preferring an indictment ex officio, or the grand jury from finding one

of their own accord. United States v. Mundell,* 1 Hughes, 415; 6 Call (Va.), 245; United States v. Jameson, 1 Cr. C. C., 62.

§ 2185. An act required the name and surname of the prosecutor and his residence to appear at the foot of every indictment before it was presented to the grand jury, but no provision appeared in the law as to the effect of an omission thereof. Held, on a general demurrer to an indictment, that such omission was not fatal. United States v. Sandford,* 1 Cr. C. C., 323.

§ 2186. The objection for want of the name of a prosecutor at the foot of the indictment as required by statute is too late after verdict. United States v. Turly, 4 Cr. C. C., 334; United States v. Lloyd, 4 Cr. C. C., 467.

§ 2187. When a presentment for a misdemeanor is made by a grand jury, without the name of the prosecutor indorsed thereon, the court will order the indictment sent up without the indorsement of the name of the prosecutor, upon the suggestion of the United States attorney that the case requires interposition. United States v. Dulany, 1 Cr. C. C., 510.

$2183. Where no name of a prosecutor was written at the foot of an indictment as required by a statute in Virginia; nor had the offense been presented by the grand jury, upon the knowledge of two of their body, nor upon the testimony of a witness called by the court, or the grand jury, according to the provisions of another statute of that state, the court would not compel the defendant to plead to the indictment unti a prosecutor's name should be indorsed thereon. United States v. Richard, 2 Cr. C. C., 439.

§ 2189. Where a statute in Virginia required that the name of the prosecutor should be indorsed at the foot of every bill of indictment for trespass or misdemeanor, before it should be presented to the grand jury, the court quashed an indictment for misdemeanor which did not contain the prosecutor's name. United States v. Helriggle, 3 Cr. C. C., 179; United States v. Shackelford, 3 Cr. C. C., 237; United States v. Hollingsberry, 3 Cr. C. C., 615.

$ 2190. Action of district attorney.- Where the grand jury which found a certain indictment was impaneled and sworn and entered upon its duties during the life-time of the district attorney; and, on being sworn, it was charged by the court to inquire into the cases of all persons imprisoned for criminal offenses against the laws of the United States; and the prisoner was examined and committed by a commissioner after the decease of the district attorney, and the indictment found against him while the office of district attorney was vacant; and the new district attorney arraigned the prisoner on the indictment, and a trial was had and a verdict rendered, the court held that the grand jury was empowered to take cognizance of the case, and that the action of the new district attorney was an adoption of the sufficiency of the indictment, and evidence of his concurrence in the action of the grand jury, and of his prosecution of the prisoner in the name of the United States in pursuance of the directions of the statute. United States v. McAvoy, 4 Blatch., 418.

$2191. The signature of a district attorney constitutes no part of an indictment, and is only necessary as evidence to the court that he is prosecuting the offender conformably to the duty imposed on him by statute. Ibid.

$2192. Accessory.- An indictment for harboring a person who had been convicted of stealing certain articles was held bad on a motion in arrest of judgment because it did not charge that the principal was convicted of felony. United States v. Williams,* 1 Cr. C. C.,

174.

2193. Whenever an accessory is indicted before the principal has been convicted, it is necessary that the indictment against him, whether they are indicted separately or jointly, should allege the guilt of the principal, as the offense of the accessory, even when charged as such Lefore the fact, depends upon the principal's guilt, and is never to be regarded as complete unless the principal offense was actually committed. After the conviction of the principal it is not necessary in an indictment against the accessory to aver that the principal committed the felony, but it is sufficient to recite with certainty the record of the conviction, because the court will presume that everything in the former trial was rightly and properly transacted. United States v. Hartwell, 3 Cliff., 230.

2194. Presentment.- A paper, to be a presentment in contemplation of the constitution and law, must be made on oath. United States v. Hill,* 1 Marsh., 156.

§ 2135. An indictment is a formal accusation made by the grand jury charging a person with the commission of a public offense. A presentment differs from an indictment in that it wants the technical form, and is usually found by the grand jury upon their own knowledge, or upon evidence before them, without having any bill from the public prosecutor. Charge to Grand Jury,* 2 Saw.. 657.

§ 2196. Where the grand jury makes a presentment of an offense, and on the following day the district attorney sends to the grand jury a bill of indictment founded upon the presentment, and the grand jury find it a true bill," the court is of opinion that the presentment and the indictment are to be considered as the same act, and the second as an amendment

of the first; and that if a nolle prosequi is entered on the indictment, the presentment perishes with it. United States v. Hill,* 1 Marsh., 156.

2197. It has been the usage of this country to pass over, unnoticed, presentments on which the attorney for the government does not think proper to institute proceedings. Ibid. $2198. An order of the circuit court to certify a presentment to the district court is not essential to the verification of the presentment. The record, certified by the clerk, would be as authentic as if certified under an order of the court. Such a motion can only, be made for the purpose of conveying to the district court the opinion of the circuit court that it is the duty of the former to proceed upon the presentment. The circuit court will not make such an order unless it is of opinion that the presentment is a legal ground for proceedings in the district court. Ibid.

§ 2199. Information.

The form of a criminal information acquiesced in for many years, and ever since the enactment of the law under which the prosecution is instituted, will not be held bad except on the clearest proof. United States v. Ballard,* 13 Int. Rev. Rec., 195. $1200. It is no objection to an information filed in open court by the sworn assistant of the district attorney, that the signature of the district attorney attached to the information was written by such assistant by virtue of a general authority conferred upon him by the district attorney. United States v. Nagle,* 17 Blatch., 258.

§ 2201. An information may be filed by the district attorney in behalf of the United States, in the national courts, for misdemeanors committed against the laws of the United States. United States v. Waller,* 1 Saw., 701.

§ 2202. An information, like an indictment, must set forth the facts and circumstances constituting the offense, and the verification extends to every part of the charge. District of Columbia v. Herlihy,* 1 MacArth., 466.

§ 2203. A criminal information need not show upon its face either that a complaint has been laid before a commissioner and the defendant thereupon held to answer the charge set forth in the information, or that the charge has ever been found true by a grand jury. United States v. Moller,* 16 Blatch., 65.

§ 2204. Under the constitution of the United States all crimes except those which are capital or otherwise infamous may be prosecuted on information. United States ", Shepard, 1 Abb., 431 ( 3195-99). See XXIX, infra.

§ 2205. Before an information can be filed in a criminal case there must be a complaint supported by oath or affirmation showing probable cause, followed by an arrest and examination. Ibid.

§ 2208. Technical objections to an indictment are not of any force in the courts of the United States. United States v. Patterson, 6 McL., 466 (§§ 2470–73).

§ 2207. Where a technical word is used in an ndictment it is to be presumed that it was used in a technical sense. United States v. Claflin, 13 Blatch., 178 (§§ 2548-54).

§ 2288. One section of a penal statute may declare a right and another section may define a punishment for its violation; and where the section declaring the right is referred to in the indictment for its violation by number, and with sufficient certainty to enable the accused, after trial, to plead the verdict rendered in bar to another indictment, it cannot be objected that no penalty is declared for the offense by the section declaring the right. United States v. Crosby, 1 Hughes, 448 ($ 2285-89).

2209. Where an act punishes an officer more severely than a private person for the same offense, it is not necessary that the officer should be charged as such, but he may be described and punished as a private person. United States v. Boyden, 1 Low., 266 (§§ 22J4-93)

2. Joinder.

SUMMARY-Effect of section 1024, Revised Statutes. § 2210. At common law, § 2211.-Where a part may be rejected as surplusage. §§ 2212, 2214.— Cured by a nolle prosequi, § 2213.-Election by prosecutor, § 2214.-- Burglary and larceny, § 2215.— Charges of passing counterfeit coin at different times. § 2216.-Separate felonies of same degree, § 2217.— Depositing circulars in mail, §§ 2218, 2219.

§ 2210. The effect of section 1024 of the Revised Statutes is to permit separate offenses of the same class and growing out of the same transactions to be joined in one indictment in separate counts, provided they be such as may be properly joined. Ex parte Peters, § 2220See § 2241.

21.

2211. By the common law there caunot be a joinder of two or more counts upon which the legal judgment would be different, and this rule has not been changed by statute in the courts of the United States. So a count for conspiracy cannot be joined with counts for

murder, the punishment of the former being fine and imprisonment, and of the latter, death. United States v. Scott, §§ 2222-27. See § 2233.

§ 2212. It seems that an indictment is not bad for duplicity or misjoinder when the part supposed to cause such duplicity or misjoinder is mere surplusage. Ibid.

§ 2213. It seems that duplicity or misjoinder of counts in an indictment may be cured by a nolle prosequi as to part of the counts. Ibid.

§ 2214. Where an indictment is bad for duplicity in charging more than one offense, the prosecution cannot elect to prosecute only for the first offense alleged and treat the rest as surplusage. A complete allegation of an offense cannot be rejected as surplusage. United States v. Patty, §§ 2250-31.

§ 2215. Burglary and larceny, committed at the same time, may be joined in one indictment in separate counts, and a conviction for both offenses will be legal. Ex parte Peters, $ 2220-21.

§2216. Charges of passing counterfeit coin, purporting to be gold and silver pieces, at different times and on different occasions, may be joined in the same indictment. United States v. O'Callahan, § 2228-29.

§ 2217. There is no objection to the insertion of several distinct felonies of the same degree, though committed at different times, in the same indictment against the same offender. Ibid.

$2218. An indictment which charges that on a certain day the defendant deposited in the mail a quantity of circulars relating to a lottery charges but one offense. United States v. Patty, SS 2230-31.

§ 2219. An indictment which charges that on a certain day and on each secular day between that day and another day named, and on each secular day between that time and another time mentioned, the defendant deposited a certain number of circulars relating to a lottery in the mails, charges distinct and independent offenses on each of the days mentioned, and is bad for duplicity. Ibid.

[NOTES.-See $$ 2232-2.52.]

EX PARTE PETERS.

(Circuit Court for Missouri: 2 McCrary, 403-406. 1880.)

Opinion by MCCRARY, J.

STATEMENT OF FACTS.- Petitioner was indicted in the United States district court for this district. The indictment contained four counts. The first count charged the petitioner with burglary in breaking and entering the building used as a postoffice at Bucklin, Linn county, Missouri, with intent to commit a larceny, on the 28th of October, 1874. The second count charged him with larceny committed at the same time and place by stealing from said postoffice a letter containing $307.50. The third count charged him with burglary in breaking and entering the building used as a postoffice at Unionville, Putnam county, Missouri, with intent to commit larceny, on the 12th day of November, The fourth count charged him with larceny at the same time and place named in the third, by stealing from said postoffice two letters, one containing the sum of $146.30 in money.

1874.

There was a plea of guilty upon all the counts, and the petitioner was sentenced to be imprisoned in the penitentiary of Missouri for the term of two years under each of the four counts; the first term to commence on the 8th of March, 1875, the second to commence on the expiration of the first term of two years, the third term to commence on the expiration of the second term of two years, and the fourth term to commence on the expiration of the third term of two years, and said four terms to constitute a continuous imprisonment of eight years. On the 18th of April, 1878, petitioner applied to this court for release on the ground that his imprisonment was illegal, and upon full consideration it was then determined that his sentence was valid at least for two terms of two years each, the court being of the opinion that at least two distinct offenses were charged, one in the first and one in the third count,

and that after conviction, by force of section 1024, R. S., these two offenses must be treated in this proceeding as having been "properly joined."

The question as to the validity of the remainder of the sentence was expressly reserved until it should be presented after the expiration of four years of impris See 4 Dillon, p. 169. The two terms of two years each having expired, the petitioner now renews his application for discharge, and we are called upon to determine whether the sentence as to the remaining four years is valid. The ground of the petitioner's application for discharge is thus stated in his petition now before us: "And your petitioner alleges that his present imprisonment is illegal, and that he is entitled to be discharged therefrom, in this, that he has fully served out the terms of imprisonment imposed upon him for the two burglaries charged in the indictment, and that the other two sentences of two years each were imposed for two separate larcenies, each of which is charged in said indictment to have been committed at the same time and place, and as part and parcel of a burglary whereof this petitioner was duly convicted and sentenced, and your petitioner avers the said sentences to be illegal in this, that the district court had no legal power to sentence this petitioner to imprisonment for a larceny charged to have been committed at the same time and place, and as part of the same act of burglary whereof he was convicted and sentenced."

I. There is no statute of the United States affecting this question, and we are therefore to adopt and follow the rule of the common law. Conkling's Treat. (5th ed.), 181.

II. The question tersely stated is, whether it was competent for the district court to sentence the petitioner for both burglary and larceny charged in separate counts, but both appearing to be part of the same act.

§ 2220. Construction of statute. Under section 1024, Revised Statutes, separate offenses may be joined in the same indictment.

Section 1024 of the Revised Statutes is as follows: "When there are several charges against any person for the same act or transaction, or for two or inore 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 indictment in separate counts; and if two or more indictments are found in such cases, the court may order them consolidated." The effect of this statute is to permit separate offenses of the same class and growing out of the same transactions to be joined in one indictment in separate counts, provided they be such as may be properly joined." It makes no change in the law as it previously existed, except to permit offenses which might have been theretofore presented in separate indictments to be presented in separate counts of the same indictment. It leaves entirely open the question whether burglary and larceny, growing out of the same transaction, are such distinct offenses as to be properly joined in the same indictment and separately punished.

§ 2221. Rule as to joinder of burglary and larceny in the same indictment. According to the great weight of authority, it may be regarded as settled that a person who breaks and enters a house with intent to steal therefrom, and actually steals, may be punished under separate indictments for two offenses, or one, at the election of the power prosecuting him. 1 Bish. Cr. L., sec. 1062, and cases cited. The case of Josslyn v. Commonwealth, 6 Metc. (Mass.), 236, is directly in point. See, also, State v. Ridley, 48 Ia., 370, and Breese v. State, 12 Ohio St., 146. The opposite view was ably stated by Waite, C. J., in his dissenting opinion in Wilson v. State, 24 Coun., 57, and his reasoning is so