§ 134. Indictment cannot be amended or changed by the court. It is beyond question, that, at common law, indictments could not be amended; and the same rule prevails under the federal constitution. Indictments are found upon the oaths of the grand jury, and cannot be amended or changed by the order of the court. It is settled by both authority and reason. that after an indictment has been changed, it is no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which the constitutional provision was intended to protect, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or order of the court in the body of the indictment presented by the grand jury, and the prisoner can be called upon to answer the indictment as amended and changed, the restriction which the constitution places upon the power of the court, in regard to the prerequisites of an indictment, in reality no longer exist. It is of no avail, under such circumstances, to say that the court still has jurisdiction of the person and of the crime; for, though it has possession of the person, and would have jurisdiction of the crime, if it were properly presented by indictment, the jurisdiction of the offense is gone, and the court has no right to proceed any further in the progress of the case for want of an indictment. If there is nothing before the court which the prisoner, in the language of the constitution, can be "held to answer,' "he is then entitled to be discharged so far as the offense as originally presented to the court by the indictment is concerned. The power of the court to proceed to try the prisoner is as much arrested as if the indictment had been dismissed or a nolle prosequi had been entered. There is, in such case, nothing before the court on which it can hear evidence or pronounce sentence."

93

§ 134a. Defendant discharged on habeas corpus when convicted of infamous crime without indictment of grand jury.— No court of the United States has jurisdiction to try and punish a person for an infamous crime, except upon presentment

sentment and indictment of such a jury; and in case of high offenses it is justly regarded as one of the securities to the innocent against hasty, malicious, and op

pressive public prosecutions.'" Ex parte Bain, supra.

93 Ex parte Bain, 121 U. S. 1, 14 (30:849).

94

of a grand jury; and the trial, conviction, and punishment of a person for such crime, upon an information is coram non judice and void; and the supreme court will discharge the defendant upon habeas corpus. And so where a person is tried for and convicted of such crime upon an indictment which was once valid, but which, before the trial, was changed or amended by order of the court the defendant will be discharged.95

§ 135. "Infamous crime" defined. In the sense of the fifth amendment to the constitution, and also of the federal statutes, a crime punishable by imprisonment in a state prison or penitentiary with or without hard labor is an infamous crime; and in determining whether a crime is infamous, the question is, whether it is one for which the court is authorized to award an infamous punishment, and not whether the punishment ultimately awarded is an infamous one." Under the present law, it is only in cases where a person convicted of an offense against the United States is sentenced to imprisonment for a period longer than one year, that the sentence can be executed in a state prison or penitentiary; and the order of a federal court directing that a sentence of imprisonment for a period not greater than one year shall be executed in a penitentiary is void.97

§ 136. Same-Felony.-It does not necessarily follow that, because the punishment affixed to an offense against the United States is infamous, the offense itself is thereby raised to the grade of felony.98 The word "felony" was used at common law to denote offenses which occasioned a forfeiture of the lands, or goods, or both, of the offender, to which capital or other punishment might be superadded, according to the degree of guilt. By statute in some of the states, the word

99

94 Ex parte Wilson, 114 U. S. 417 (29:89); Ex parte Mills, 135 U. S. 263 (34:107).

92 Ex parte Bain, 121 U. S. 1, 14 (30:849).

96 United States v. De Walt, 128 U. S. 393 (32:485); Mackin v. United States, 117 U. S. 348 (29: 909); In re Claasen, 140 U. S. 200 (35:409); Ex parte Wilson, 114 U. S. 417 (29:89); Parkinson

v. United States, 121 U. S. 281 (30: 959); Ex parte Mills, 135 U. S. 263 (34:107).

97 Ex parte Mills, 135 U. S. 263 (34:107).

98 Bannon v. United States, 156 U. S. 464 (39:494).

99 Bannon v. United States, 156 U. S. 464 (39:494; Ex parte Wilson, 114 U. S. 417 (29:89).

"felony" is defined to mean offenses for which the offender, on conviction, may be punished by death or imprisonment in the state prison or penitentiary; but in the absence of such statute the word is used to designate such serious offenses as were formerly punishable by death, or by forfeiture of the lands or goods of the offender.1 The common law definition of felony is not applicable in the American system of jurisprudence, as crimes do not, in this country, work a forfeiture of estate. There is no statutory definition of felonies in the legislation of the United States, and the definition must be sought elsewhere, and more particularly in federal decisions of authority, by which some general rules have been established. When a federal statute creating an offense declares that the prohibited act shall be a misdemeanor, that fixes the classification of the offense. And when the statute creating and defining an offense makes use of such terms as "robbery" or "burglary,' or other words which have a well-defined meaning in the com'mon law, they are used in the statute in their common law sense; and if the words import a felony at common law, then the offense created by the statute is a felony, unless otherwise defined in the statute. In such case the words of the statute are held to create such serious offense as was at common law punishable by death or forfeiture of the lands and goods of the offender, and, therefore, classed as felony. It is said that the federal decisions have established the following rules, namely: The term "felony" as used in the federal statute prescribing the number of challenges in criminal trials includes the following classes of cases: (1) Where the offense is by statute declared to be felonious, expressly or by implication; (2) Where the offense is not defined by statute, but is designated by its common law name a felony, known as such at the common law; (3) When congress adopts a state law as to an offense made by the law of the state a felony."

1 Bannon v. United States, 156 U. S. 464 (39:494).

2 Reagan v. United States, 157 U. S. 301 (39:709); Considine v. United States, 112 Fed. 342.

3 Reagan v. United States, 157 U. S. 301 (39:709); Considine v. United States, 112 Fed. 342.

4 Harrison v. United States, 163 U. S. 140 (41:104); Bannon v. United States, 156 U S. 464 (39:494); Ex parte Wilson, 114 U. S. 417 (29:89); Considine v. United States, 112 Fed. 342.

5 U. S. v. Coppersmith, 4 Fed. 198, and authorities cited; Con

§ 137. Exception to the constitutional rule requiring indictments in the prosecution of infamous crimes-Land and naval forces-Militia in actual service. The provision of the fifth amendment requiring that capital or otherwise infamous crimes. must be prosecuted by "presentment or indictment of a grand jury," contains the following exception:

"Except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger. The words, "when in actual service in time of war or public danger," apply to the militia only. All persons in the military or naval service of the United States are subject to the military law: the members of the regular army and navy at all times; the militia so long as they are in such service."

§ 138. Constitutional right of trial by jury in criminal cases. -The right of trial by jury is secured to all persons accused of crime in the courts of the United States,' except in cases of impeachment, and also except in cases arising in the land and naval forces, or in the militia when in actual service in time. of war or public danger; and the constitutional provisions securing this right apply to the people of the territories of the United States, as well as to the people of the several states."

§ 139. Same-It is a common law jury of twelve men, and a trial according to the rules of the common law. The words "jury" and "trial by jury" have the same meaning in the constitution which was affixed to them in the common law as it was settled and understood in this country and in England at the time of the adoption of that instrument. The jury referred to is a jury constituted, as at common law, of twelve

sidine v. United States, 112 Fed. 342.

6 Johnson v. Sayer, 158 U. S. 109 (39:914). When a court martial, having jurisdiction of the person accused and of the offense charged, acts within the scope of its lawful authority, its decision and sentence cannot be reviewed or set aside by the civil courts, by habeas corpus or otherwise. Dynes v. Hoover, 20 How. 65 (15:838); Ex parte Reed, 100 U. S. 13 (25:38); Ex parte Ma

son, 105 U. S. 696 (26:1213); · Smith v. Whitney, 116 U. S. 167 (26:601); Johnson v. Sayer, 158 U. S. 109 (39:914).

7 U. S. Const. art. III, sec. 2, cl. 3; VI art. of Amendment.

8 Ex parte Milligan, 4 Wall. 2 (18:281); Johnson v. Sayer, 158 U. S. 109 (39:914).

9 Thompson v. Utah, 170 U. S. 343, 355 (42:1061); Reynolds v. United States, 98 U. S. 145 (25:244); Callan v. Wilson, 127 U. S. 540, 551 (32:223).

men, neither more or less. And the trial by jury secured is a trial by a jury of twelve men, conducted according to the settled rules of the common law, and in a court of common law, by the oral testimony of witnesses, in the presence of the judge and jury, and under the inspection and direction of the judge, with exclusive authority in the jury to determine the fact of guilt or innocence, and in whose verdict there shall be absolute unanimity; and it is not within the power of a person accused of a felony, by consent expressly given or by his silence, to authorize jury of less than twelve men to pass upon the question of his guilt. The guaranty of a trial by jury, contained in the third article of the constitution, secures a trial in the mode and according to the settled rules of the common law, and the enumeration in the sixth amendment of the rights of the accused in a criminal prosecution are a declaration of what those rules are, and their embodiment in the amendment is to be referred to the anxiety of the people of the states to have in the supreme law of the land a full and distinct recognition of those rules, made binding on the national government, as essential to the preservation of the fundamental rights of life, liberty and property.10

§ 140. Same-Speedy and public trial.-The constitution "1 secures a "speedy and public trial by an impartial jury," to all persons accused of crime in the courts of the United States. The constitutional provision in this respect is declaratory of a great and fundamental rule of the common law, but a rule which had been shamefully violated by the English government, especially during the reign of the Tudors and Stuarts; and it cannot be doubted that the statesmen who framed the sixth amendment, and the people of the states who adopted it, had in mind (1) the cruel and secret proceedings of the star chamber, and (2) the corrupt practices of the crown, and its pusillanimous judges and ministers and sheriffs in "packing" the jury panel, and intimidating juries and imposing upon them penalties for verdicts of acquittal in crown cases.12 It was, undoubtedly, the purpose and intent of the constitution to secure in all criminal prosecutions a jury which would be im

10 Thompson v. Utah, 170 U. S. 343, 335 (42:1061); Sparf V. United States, 156 U. S. 51-183 (39:343).

11 VI art. of Amendment.

12 Hallam's Const. Hist. of England, 139, 498, 499.