An indictment if valid on its face raises a presumption of probable cause. The Supreme Court has said that

"the extent to which a Commissioner in extradition may inquire into the validity of the indictment put in evidence before him, as proof of probable cause of guilt, has never been definitely settled, although we have had frequent occasion to hold generally that technical objections should not be considered, and that the legal sufficiency of the indictment is only to be determined by the Court in which it is found. Of course, this rule has its limitations. If the indictment were a mere information, or obviously, upon inspection, set forth no crime against the United States, or a wholly different crime from that alleged as the basis for proceedings, or if such crime be charged to have been committed in another district from that to which the extradition is sought, the Commissioner could not properly consider it as ground for removal. In such case resort must be had to other evidence of probable cause. *** An Extradition Commissioner is not presumed to be acquainted with the niceties of criminal pleading. His functions are practically the same as those of an examining magistrate in an ordinary criminal case, and if the complaint upon which he acts or the indictment offered in support thereof contains the necessary elements of the offense, it is sufficient, although a more critical examination may show that the statute does not completely cover the

The indictment is, however, not conclusive evidence that there is probable cause to believe the accused guilty. He may 1ebut the presumption it raises. He may offer testimony to show that he did not do what was charged against him in the indictment. If he does, the testimony must be heard and considered.

The Grand Jury of the United States for the Middle District of Tennessee indicted a number of firms, corporations and individuals, for a violation of the Sherman Act. Some of the defendants were arrested in Virginia. They offered to produce testimony that in the Middle Dis

trict of Tennessee they had not and could not have committed the offense charged in the indictment. The offer was refused on the ground that in Virginia no examination before a committing magistrate can be had after the defendant has been indicted. The Supreme Court held that the refusal constituted reversible error.3

85. Removal Proceedings Before Indictment Found. -Frequently the accused is arrested before it has been possible to obtain an indictment. In such case it is necessary to send to the district in which he is in custody witnesses who can show that there is probable cause to believe that he has committed the offense charged against him. He has precisely the same kind of hearing in that district as he would have had had he been arrested in the district in which the offense was committed.

86. Removal Hearings Usually Held by United State Commissioner.-Section 1014 of the Revised Statutes already quoted provides that the Commissioners and the other officers therein named may arrest and imprison or bail offenders for trial before such Court of the United States as by law has cognizance of the offense. In point of fact, these hearings, whether the accused has already been indicted or not, are usually held before a United States Commissioner. If he finds there is probable cause to believe the prisoner guilty he so certifies to the Judge of the district, who thereupon, and ordinarily without further hearing, issues a warrant of removal.

87. Duty of District Judge in Removal Proceedings. -But "in such cases the Judge exercises something more than a mere ministerial function involving no judicial discretion. He must look into the indictment to ascertain whether an offense against the United States is charged, find whether there was probable cause and determine whether the Court.

3 Tinsley vs. Treat, 205 U. S. 20.

to which the accused is sought to be removed, has jurisdiction. of the same. 991

"Doubtless the action of the committing magistrate is prima facie sufficient for the basis of the warrant, but it is not conclusive, and while the Judge should not necessarily require another or preliminary examination, if in his judgment it is expedient that the prisoner be further heard in defense, it is his duty to pass fully upon the case and determine for himself whether the removal should be ordered."2

88. Proceedings May Be First Taken in District in Which Prisoner is Arrested.-Ordinarily the order of removal is not made until some criminal proceedings have been begun in the district in which it is alleged the offense has been committed, but it is not absolutely necessary that such proceeding shall have been so instituted. CHIEF JUSTICE MABSHALL, after a hearing in the Virginia District before him as committing magistrate, committed Aaron Burr for trial in Ohio for an offense alleged to have been there committed, although in the latter district up to that time no steps had been taken in the matter.

89. When Indictment Necessary Before Accused May Be Tried.-The charge upon which a person accused of crime is tried, is regularly embodied either in an indictment or in an information. The Constitution declares that no one shall be held to answer for a capital or other infamous crime except upon an indictment by a Grand Jury. "Infamous," as applied to crimes, means, in different connections, different things. Thus, under the Constitution of Maryland, conviction of an adult for larceny or other infamous crime involves perpetual disfranchisement unless there is a pardon from the Governor. The taking of an apple or an ear of corn which does not belong to one is an infamous crime. The committing of an assault with intent to rape is not.

Tinsley vs. Treat, 205 U. S. 29. 2 Price vs. McCarty, 89 Fed. 84.

Con

viction for the former entails perpetual disfranchisement; for the latter no disfranchisement at all.1

By a State statute such an assault may be punished by death or by long confinement in the penitentiary. Nevertheless, the Court of Appeals of Maryland has held that it is not even a felony.2

Here the State follows the classification of crimes which the common law made for the purpose of determining the competency of witnesses. It held those offenses infamous which were not likely to be committed by any one whose evidence could be safely relied on. The Supreme Court of the United States has said that the Fifth Amendment was intended for the protection of the accused. "Whether a man shall be put upon his trial for crime without a presentment or indictment by a Grand Jury of his fellow-citizens depends upon the consequences to himself if he shall be found guilty." By the law of England, informations by the Attorney-General without the intervention of a Grand Jury were not allowed for capital crimes nor for any felony; by which was understood any offense which at common law occasioned a total forfeiture of the offender's lands or goods, or both. The question whether the prosecution must be by indictment or may be by information thus depended upon the consequences to the convict himself. "The Fifth Amendment * * * manifestly had in view that rule of the common law, rather than the rule on the very different question of the competency of witnesses." "The question is whether the crime is one for which the statutes authorize the Court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial except upon the accusation of a Grand Jury." The Court concludes: For more than a century imprisonment at hard labor in the State prison or penitentiary or other similar institution has

1 State vs Bixler, 62 Md. 360. Dutton vs. State, 123 Md. 373.

been considered an infamous punishment in England and America."3

90. All Offenses Against the United States Punishable by More Than One Year's Imprisonment Are Both Infamous Crimes and Felonies.-Whenever a convict is sentenced to imprisonment for more than one year he may be sent to a penitentiary. It follows that where an offense may possibly be punished by more than one year's imprisonment it is an infamous crime. The person charged with it can be prosecuted by indictment only. All offenses against the United States punishable by death or imprisonment for more than one year are felonies.2 All offenses for which no such punishment can be inflicted are misdemeanors. It follows that the line of demarcation between infamous and non-infamous crimes is now in the Federal practice the same as between felonies and misdemeanors. There are two possible exceptions to this rule. It may be that there are offenses punishable by not more than one year's imprisonment in which hard labor may be added as part of the penalty. If there are such it is probable that they are infamous crimes.

3

In Ex parte Wilson, the Supreme Court intimated that there may be crimes the commission of which would be in public opinion so disgraceful that they would be held "infamous" within the purpose of the Fifth Amendment, independent of the punishment which may be prescribed for them.

91. When Accused May Be Prosecuted Upon an Information.As a rule, however, all offenses for which the offender upon conviction cannot lawfully be punished by an imprisonment exceeding one year, may be prosecuted upon information. An indictment is not necessary. An information is filed by the District Attorney under his official oath of office.

Ex parte Wilson, 114 U. S. 417.

1R. S., sec. 5541.

"Penal Code, sec. 335, 35 Stat. 1152.

114 U. S. 417.