district in which the vessel was enrolled and licensed, that a certain paper, produced by him to the collector, was the original agreement made with the fishermen employed on board the vessel; that three-fourths of the crew so employed were citizens of the United States or not subjects or citizens of any foreign prince or state; and that these statements were false, and known to the defendant to be so when he made the oath. The defendant was acquitted on this indictment. He was again indicted, and to this he pleaded the former acquittal in bar. A demurrer to this plea raised the question whether the same evidence which was competent and essential to support the second indictment might have been admitted to support the former indictment. This plea was held to be good on the ground (1) that the act of July 29, 1813, by which the oath was alleged to be required, required an oath as to the verity of the agreement; and (2) that, it not being necessary for the indictment to aver what acts of congress required the oath, the act of March 1, 1817, could be relied on as requiring the oath as to the citizenship of the crew. United States v. Nickerson,* 17 How., 204.

§ 1805. A plea of autrefois acquit cannot be sustained where, under the earlier indictment, the defendant could not have been convicted of the offense charged in the later, or where the evidence necessary to support the latter would not be sufficient for a conviction on the former. United States v. Flecke* 2 Ben., 456.

§ 1806. Acquittal on indictment for attempting to defraud John L., not a bar to indictment for attempting to defraud William L. United States v. Book,* 2 Cr. C. C., 294.

§ 1807. A conviction for stealing a pocket-book is a bar to a subsequent indictment for stealing the contents of the pocket-book. United States v. Negro John,* 4 Cr. C. C., 336; United States v. Lee,* 4 Cr. C. C., 446.

• § 1803. Offense against two jurisdictions. It is held that an offender may be punished under the act of the legislature of the territory of Oregon of January 23, 1854, for selling liquor to Indians contrary to that act, and that he may be punished for the same act under the act of congress of June 30, 1834, prohibiting the sale of liquor to Indians, and that an indictment and punishment under one of these acts would not be a bar to indictment and punishment for the same act under the other. Territory v. Coleman,* 1 Or., 191.

§ 1809. Punishment by congress.- Conviction and judgment by the house of representatives, upon a charge of a violation of its privileges in assaulting and beating one of its members for words spoken in debate, is no bar to a criminal prosecution of the defendant, not being a member of congress, for the same act. The house of representatives, upon a charge of violating its privileges, could not, whether it found the defendant guilty or not guilty of violating its privileges, adjudge him guilty of a simple assault and battery, and punish him for that offense. Upon a plea of autrefois acquit, or autrefois convict, the criterion of the identity of the crimes is, whether the facts charged in one indictment would have been sufficient to justify a conviction and judgment upon the other, by the court in which the first conviction was had. United States v. Houston,* 4 Cr. C. C., 261. The same act may be an offense against both the state and federal governments. Moore v. People of Illinois, 14 How., 13.

XXIV. GRAND JURY.

SUMMARY- Want of qualifications may be pleaded in abatement, §§ 1810, 1824.— Qualifications required by act of 1840, § 1811.- Prosecuting witness a member, § 1812.- Practice on plea in abatement, §§ 1813, 1814, 1816, 1818.— Disqualification of single juror, § 1815.— Disqualification by participation in the rebellion, §§ 1817, 1818.— Duty of court to control proceedings of grand jury, § 1819.— Disclosing proceedings, § 1820.— Jury moved by prejudice and undue zeal, § 1821.- Challenges, §§ 1822-1825.- Persons not to be summoned as jurors more than once in two years, § 1823.- Objections should be made at time jury is sworn, § 1825.

§ 1810. The defendant in a criminal case who has not recognized to answer may plead in abatement, if done seasonably, the want of statutory qualifications, such as citizenship, etc., in the grand jurors who found the indictment against him. But the disqualification, in order to be sufficient, must be one pronounced by statute, and which disqualifies absolutely, and not a disqualification arising from interest, bias, or the like. United States v. Williams, $ 1826-31. See § 1880.

§ 1811. The word "qualification," in the act of July 20, 1840, by which jurors in federal courts are required to have the like qualifications as jurors in state courts, refers to disqualifications which would exclude a juror from the panel, and not to a disqualification to sit in a particular case. Ibid.

§ 1812. Although an indictment was found by a grand jury of which the prosecuting witness was a member, yet if he was drawn as such grand juror without any agency or intervention of his own, that fact does not affect or vitiate the indictment. Ibid.

§ 1813. After a verdict of a jury on a plea in abatement to an indictment against the defendant, judgment will be entered overruling the plea, and the defendant will be allowed to plead not guilty. Ibid.

§ 1814. A plea in abatement to an indictment, that some of the grand jurors who found it were disqualified to serve as grand jurors, need not be verified. United States v. Hammond, $3 1832-41.

§ 1815. The disqualification of a single grand juror who joins in the finding of an indictment vitiates the indictment. Ibid.

§ 1816. A plea in abatement to an indictment, that some of the grand jury finding it were disqualified, may be taken at the time of pleading to the indictment. Ibid.

§ 1817. The disqualification of a grand juror mentioned in section 820, Revised Statutes, of having taken part in the rebellion, is absolute, and does not rest in the discretion of the court and prosecuting officer. Ibid.

§ 1818. A plea in abatement to an indictment which alleges that the indictment is bad because certain of the grand jurors which found it had been engaged in insurrection is bad if it fails to state the time and place of the commission of the act relied upon. Ibid.

§ 1819. It is the duty of the court to control the proceedings of the grand jury, to see that no person shall be subjected to the expense, vexation and contumely of a trial for a criminal offense, unless the charge has been investigated and a reasonable foundation shown for an indictment or information. The government should also require, before the trial of an accused person, a fair preliminary investigation of the charges against him. United States v. Farrington, SS 1842-44. See § 1862.

§ 1820. Whenever it becomes essential to the purposes of justice to ascertain what has transpired before a grand jury, it may be shown, no matter by whom; and the only limitation is that it may not be shown how the individual jurors voted or what they said during their investigations. Ibid. See § 1862.

§ 1821. Where the grand jury permitted themselves to be influenced by the appeals and arguments of a zealous advocate who appeared as a witness before them, by hearsay testimony, and testimony prohibited by law, although they were advised to the contrary by the district attorney; and it was probable that they were led to their conclusions by prejudice and undue zeal rather than by calm and fair deliberation, the court quashed the indictment. Ibid.

§ 1822. The provisions of the Revised Statutes of the state of New York (2 R. S., 724, § 27, 23), prescribing the objections that may be taken to the organization of grand juries, are by the act of congress of July 20, 1840, made applicable to the federal courts; and, therefore, no challenge to the array of grand jurors, or to any person summoned to appear as a grand juror, shall be allowed in any other cases than such as are specified in section 27 of the state statute. Section 27 declares that "a person held to answer any criminal charge may object to the competency of any one summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution, and has been subpoenaed, or been bound in a recognizance, as such; and if such objection shall be established, the person so summoned shall be set aside." The next section declares that "no challenge to the array of grand jurors, or to any person summoned to serve as a grand juror, shall be allowed in any other cases than such as are specified in the last section." Causes of challenge to the array which might have been urged if the state statute had not been applied to the federal courts are no longer available. Irregularities in the summoning of grand jurors do not entitle the person indicted, as a matter of law, to avoid the indictment. For such causes the challenge to the array is wholly abolished. An indictment will not be quashed, therefore, on the ground that the state statute has not been complied with in designating and selecting grand jurors, where there is no allegation or claim that in selecting, summoning and impaneling the grand jury the clerks of the court did not act in good faith, and in obedience to an express rule of the court, according to their interpretation of its purport and intention, and it is not claimed that any irregularity has resulted to the prejudice of the accused. It is also held that a literal conformity to the state law is not required by the act of congress; a substantial conformity, and only so far as that is practicable, being all that is necessary to strict technical regularity. United States v. Tallman. §§ 1845-48. See § 1888. § 1823. Under section 812 of the Revised Statutes, which provides that no person shall be summoned as a juror more than once in two years, and that if a person shall be so summoned it shall be sufficient cause for challenge, it is not necessary that the full term of twenty-four months should elapse between the close of the term at which the juror was summoned and

served and the beginning of the term at which he is again summoned. So a juror is not liable to a challenge who was summoned for the November term, 1876, and was sworn December 11, 1876, and again summoned for the November term, 1878, and sworn December 14, 1878, notwithstanding the fact that the November term, 1876, did not end till April, 1877. United States v. Reeves, §§ 1849-53.

§ 1824. Defendants who have not before had an opportunity to object to the composition of the grand jury by which they were indicted may take advantage of any disqualification of a juror by a plea in abatement. Ibid.

$1825. Although a ground for challenge to a grand juror existed at the time he was sworn, still an indictment will not be quashed where such objection was not made at the time the grand juror was sworn. Ibid.

[NOTES.-See §§ 1854-1911.]

UNITED STATES v. WILLIAMS.

(Circuit Court for Minnesota: 1 Dillon, 485–497. 1871.)

STATEMENT OF FACTS.-The defendant, a deputy collector of internal revenue, was indicted for the embezzlement of public money. After plea in abatement, and replication thereto, the case was transferred to this court. The plea in abatement was to the effect that three of the grand jurors, to wit, Senserbox, How and Hall, were incompetent; that How was a surety for the defendant; that Hall was the collector under whom defendant acted as deputy; that How was the prosecuting witness along with the said Hall, and that the three persons became grand jurors at the instance and denomination of How. On special issues submitted, the jury found that the three persons named did serve on the grand jury; that Hall was the collector, and that How was a surety for defendant; that neither Hall nor How was the prosecutor in the case; that they testified before the grand jury, but that they did not become grand jurors at the instance of How.

There was a motion for a new trial, upon the grounds, (1) that the finding of the jury that neither Hall nor How was the prosecutor was against the evidence. (2) Upon the ground of newly discovered evidence, in the shape of a letter from How to defendant, telling him that if he did not make good the embezzlement, he would institute criminal proceedings against him. The letter was written before the indictment was found. Defendant also filed an affidavit showing that the letter had been mislaid and was only accidentally found. after the trial. It is this motion for a new trial which is now before the court for determination.

Opinion by DILLON, J.

It is essential to a proper disposition of the motion for a new trial to determine the nature of the plea in abatement. The language of the plea appears above. After carefully considering it, our opinion is that the gravamen of the plea is that the parties named (sustaining the relation to the defendant described therein) "became members of the grand jury which found the bill at the instance and denomination of the said D. L. How." All that precedes this averment is introductory, and intended to show why it was improper, and prejudicial to the rights of the defendant, that these parties should have served on the grand jury which indicted him. It is not believed that it was the purpose of the pleader improperly to set forth in one plea three distinct matters in abatement, to wit: 1. That How was the prosecutor. 2. That he was the prosecuting witness along with Hall. 3. That the three parties named became grand jurors at the instance of How; but rather that it was the purpose to set forth the one ground above stated.

§ 1826. Dilatory pleas should be pleaded with strict exactness. Pleas of this character are dilatory, and, not being favored, the law requires that they shall contain all essential averments, pleaded with strict exactness. O'Connell v. Reg., 11 Cl. & F., 155; 9 Jur., 25; Commonwealth v. Thompson, 4 Leigh, 667; State v. Newer, 7 Blackf., 307; Wilburn v. State, 21 Ark., 198; Hardin v. State, 22 Ind., 347; Lewis v. State, 1 Head (Tenn.), 329. The plea in abatement seems to be drawn as if founded upon the celebrated and ancient state of 11 Henry 4, cap. 9, passed in 1410, and which may be found set out in Bacon's Abridgment, Juries, A., 233. This statute, after reciting the abuses which led to its enactment, declares: "Henceforth no indictment shall be made by any such [improper] persons, but only by inquests of the king's lawful liege people returned by the sheriff without any denomi nation to the sheriff by any person of the names which by him should be impaneled, except it be by officers sworn and known to make the same; and if any indictments be hereafter made in any point to the contrary, that the same indictment be also void, revoked, and forever holden for none." The plea, then, in this case, is to be taken as setting forth that the indictment should not be prosecuted, because the persons mentioned in the plea were, by an interested party, viz., Mr. D. L. How, caused to be placed on the grand jury which found the bill. The question is not now directly before us whether such a plea is good in the federal courts. Undoubtedly such an objection is good if taken by a person under prosecution, or who has been held to answer, by way of challenge, before the jury is sworn or the indictment found. Whether in the case of a person not previously bound over it may be taken after a bill found by plea in abatement or motion to quash, the authorities are not entirely agreed. As tending to show that it must be taken before indictment is found, see Bacon's Abr., Juries, A., 233; The People v. Jewett, 3 Wend., 314; S. C., 6 id., 386; Commonwealth v. Smith, 9 Mass., 107. Compare Commonwealth v. Parker, 2 Pick., 563; State v. Rickey, 5 Halst., 83; Thayer v. People, 2 Doug. (Mich.), 417; Baldwin's Case, 2 Tyler (Vt.), 473; Rex v. Sheppard, 1 Leach C. C., 101.

§ 1827. Statutory qualifications, such as citizenship, etc., may be the subject of a plea in abatement before answer filed.

But in many, indeed, from an examination of the authorities, I may say that in most of American states it is held that where a party has not been recognized to answer he may plead in abatement, if done seasonably, the want of statutory qualifications, such as want of citizenship, etc., in grand jurors who found the bill. Hardin v. State, 22 Ind., 347; Wilburn v. State, 21 Ark., 198; State v. Cole, 17 Wis., 674; Kitrol v. State, 9 Fla., 9; Stanley v. State, 16 Tex., 557, and other cases cited; Whart. Cr. L. (2d ed.), pp. 172, 173; and in State v. Ostrander, 18 Ia., 435, note. In the federal courts the sufficiency of pleas in abatement, in the absence of legislation by congress touching the question or authorized rules of court, must be tested by the principles of the common law. And by the common law it is undoubtedly true, as stated by Mr. Wharton, that, "if a disqualified person is returned as a grand juror, it is good cause of challenge." Whart. Cr. L. (2d ed.), 170; 1 Chitt. Cr. L., 309. Mr. Chitty at the place just cited states the doctrine thus: "If a disqualified juror be returned he may be challenged by the prisoner before bill presented; if the disqualification is discovered afterwards, the defendant may plead it in avoidance and answer over to the felony." And see, also, Hawkins, P. C., B. 2, C. 25, sec. 16.

§ 1828. Distinction to be drawn between disqualifications that absolutely disqualify, and such as are merely causes of disqualification.

But the disqualification thus referred to is such as is pronounced by statute, and which absolutely disqualifies, such as alienage, non-residence, want of freehold qualification, where that is required, etc., and which would constitute cause of principal challenge as distinguished from challenge to the favor arising from bias, interest, and the like. See on this point State v. Rickey and People v. Jewett, before cited. But it is not necessary further to pursue the discussion of the subject in this place, for if the gravamen of the plea in the case at bar be such as we have above indicated, the fifth special finding of the jury is the material one, and by that the jury have negatived the truth of the plea by saying that neither Hall nor How became members of the grand jury which found the bill, at the instance or on the nomination of Iow. The finding of the jury on this point is not questioned by counsel, no motion for a new trial is made with respect to it, and it is to be taken as conclusively correct. Thus taken, it is to be presumed that both Hall and How were properly selected to serve on the grand jury, and that they did not become members of it at the instance or by the procurement of How. In this view of the case, the third finding, concerning which the motion for a new trial is made, is, under the plea, immaterial; and if so, a new trial should not be granted thereon, even though the court should be, as it is, of opinion that the verdict of the jury on this issue was against the evidence.

The foregoing view is based upon the construction above given to the plea in abatement. But suppose, as the jury might have found from the evidence, or might yet find if a new trial should be granted as asked in the motion under consideration, that How was the prosecutor or prosecuting witness against the defendant, and suppose the plea be taken as intended to set this forth as the ground of abatement of the indictment, would the plea then be sufficient in law to work this result? This question must, in my opinion, for the reasons which I proceed to state, be also answered in the negative. By the act of congress referred to in the statement, jurors in the federal courts are required to "have the like qualifications, and are entitled to like exemptions, as jurors" in the highest courts of the state; by the statute of Minnesota it is provided that "all persons who are qualified electors of this state are liable to be drawn as grand jurors, except as hereinafter provided." R. S. 1866, p. 636, sec. 3. The exemptions consist of certain public officers, followers of certain profes sions and avocations, persons over a specified age, infirm persons and such as have been convicted of an infamous crime. The grand jury is directed to be selected by lot from a jury box containing names procured in a designated manner. Then follow the provisions referred to in the statement of the case authorizing any person held to answer for a public offense to challenge for the causes specified in the panel of the grand jury any individual juror.

Among the grounds of challenge to an individual grand juror is, "that he is a prosecutor upon a charge against the defendant;" and also, "that he is a witness on the part of the prosecution, and has been served with process, or bound by a recognizance as such." The statute provides that, "If a challenge to the panel is allowed, the grand jury are prohibited from inquiring into the charges against the defendant by whom the challenge was interposed; if they should, notwithstanding, do so, and find an indictment against him, the court shall direct it to be set aside." R. S. 1866, p. 638, sec. 18. The next section enacts that, "If a challenge to an individual juror is allowed he cannot be