UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 em 
 
 w
 
 THE 
 
 GRAND JURY 
 
 An Essay 
 
 AWAVDED THE PETER STEPHEN DUPONCEAU PRIZE BY THE 
 
 LAW ACADEMY OF PHILADELPHIA 
 
 BY 
 
 GEORGE J. EDWARDS, JR, 
 
 OF THE PHILADELPHIA BAR. 
 
 PHILADELPHIA : 
 
 GEORGE T. BISEL COMPANY 
 LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS 
 1906
 
 T 
 Ei "lUVJe 
 
 Y\0b 
 
 COPYRIGHT 1906 
 
 BY 
 GEORGE T. BISEL COMPANY 
 
 '
 
 To THE LAW ACADEMY OF PHILADELPHIA: 
 
 As the Committee of your Faculty requested to exam- 
 ine and report upon the essays submitted for the 
 Annual Prize offered by the Law Academy, we desire 
 to inform you that we have carefully read and com- 
 pared the two essays which have been placed in our 
 hands, one submitted under the nom de plume "Law- 
 t yer," and the other under that of "American," and that 
 the result of our examination is as follows: 
 
 1. We find that both essays are in form and substance 
 excellent and very creditable to the Academy. 
 
 2. We find that, of the two, the essay signed "Law- 
 yer" is the better, and evinces the greater labor and 
 research and is worthy of the prize offered. 
 
 3. We, therefore, recommend that the prize offered 
 by the Academy be awarded to the writer of the essay 
 signed "Lawyer," whoever he may be. 
 
 Although in strictness, it does not fall within our 
 province, we feel that we ought not to omit this oppor- 
 tunity of expressing our approval of the subject chosen 
 for this year's prize essay. Not only is it extremely 
 interesting, from an historical standpoint, but it is one 
 of great practical importance. Since Mr. Furman 
 Sheppard prepared his "Manual for Grand Juries" in 
 1875, of which but a few copies are now in existence, 
 no work of any importance, which deals in a practical 
 way with the Grand Jury System as it is in force in this 
 Commonwealth, has been published. The essay to 
 
 iii
 
 IV REPORT OF JUDGES. 
 
 which we have recommended the award of this prize 
 contains a vast amount of valuable information on the 
 subject and with a few slight alterations and additions 
 (incorporating the points decided by the Superior 
 Court in the case of Commonwealth vs. Brown, which 
 was decided after these essays were handed in) might 
 be made a useful handbook for those concerned with 
 practice in the Criminal Courts, and we suggest that 
 the Academy, if it sees its way clear to do so, take steps 
 to have it printed for the use of the Bar. 
 
 (Signed) CHAS. Y. AUDENRIED, 
 
 ROBERT N. WILLSON, 
 ABRAHAM M. BEITLER. 
 
 Philadelphia, May 11, 1904.
 
 PREFACE. 
 
 THIS essay was originally written with particular 
 reference to the law relating to the grand jury in Eng- 
 land, Pennsylvania and the United States Courts. 
 After the committee by whom it was read had reported 
 favorably upon it, the suggestion was made that its 
 scope be enlarged so as to make the work applicable to 
 all of the states. This suggestion was communicated 
 to Judge Audenried, the Chairman of the Committee, 
 and received his approval. 
 
 In effecting this change it has been found necessary 
 to make few alterations in the text. So far as the com- 
 mon law principles relating to the grand jury are in 
 force in the various states, the law and the decisions 
 thereon are generally uniform. In such states as have 
 adopted a code of criminal procedure, the common law 
 principles relating to the grand jury constitute an 
 important part of the code, and the decisions there- 
 under, in such instances, will be found to be in har- 
 mony with the decisions at the common law. Only 
 where the common law has been superseded by statute 
 do we find any material conflict in the decisions, and 
 this is due, in large measure, to differences in the con- 
 stitutions or statutes of the various states. By adding 
 the citations of the state court decisions in the foot 
 notes, with occasional additions to the text where the 
 rulings of the courts may be regarded as of local appli- 
 cation only, the author trusts the work has been made of 
 more general utility than when originally submitted to 
 the committee. 
 
 While the subject of juries has received careful 
 attention from legal writers, and within the scope of
 
 VJ PREFACE. 
 
 their work the law as to grand juries has been consid- 
 ered fully, sufficient attention has not been given to the 
 historical growth of the grand jury. In this essay the 
 origin, history and development of the grand jury have 
 been, therefore, considered at length. The history of 
 the grand jury is closely interwoven with that of the 
 petit jury, while the judicial records during its infancy 
 are very meagre and confusing. 
 
 In tracing its historical development, much must be 
 left to surmise, and this necessarily has resulted in con- 
 flicting opinions. Where doubt has arisen, the author 
 has endeavored to present the reasons upon which his 
 conclusions are based, and in all cases has sought to treat 
 his subject in the light of the conditions which he con- 
 ceives existed at the period of which he treats. To pre- 
 sent the matter as clearly as possible, the method has 
 been adopted of showing the character of trial awarded 
 with relation to the manner of instituting the prosecu- 
 tion. By so doing, it becomes possible to trace the de- 
 velopment of the grand jury separate and apart from 
 the petit jury and thus the likelihood of confusing the 
 action of these bodies in the early stages of their exist- 
 ence is in large measure avoided. 
 
 The author desires to express his thanks to Carlyle 
 H. Ross, Esq., of the Philadelphia Bar, for his valua- 
 ble assistance in the preparation of the index to this 
 book. 
 
 He also acknowledges his appreciation of the criti- 
 cism and suggestions of John M. Gest, Esq., and his 
 obligation to Luther E. Hewitt, Esq., Librarian of the 
 Law Association, for his interest in the preparation of 
 this work. G. J. E., JR. 
 
 March 20, 1906.
 
 Table of Contents 
 
 PART I. 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 
 
 An institution of English-speaking countries I 
 
 Of historic, political and legal interest I 
 
 Extravagantly praised and bitterly condemned I 
 
 Differing opinions as to origin I 
 
 Law of Ethelred II. a 
 
 The petit jury a Norman institution a 
 
 Nambda and Sectatores 3 
 Ancient Norman and English methods of bringing offenders to justice 3 
 
 The custom of weregild 4 
 
 Compurgation 4 
 
 English system of frank-pledge 4 
 
 Statute of Ethelred II, declaratory of existing law 5 
 
 Fixes number composing inquest at twelve 6 
 
 Lord Coke's view of the number of twelve 6 
 
 Appeal promotes importance of inquest 7 
 
 Accusing body confirmed by Assize of Clarendon 7 
 
 The itinerant courts created 7 
 
 The implied prohibition abolishes compurgation .8 
 
 Justices of the curia regis become sheriffs 8 
 
 Accusing body confirmed by Assize of Northampton 8 
 
 The kingdom divided into six circuits 9 
 
 The accusing body in the time of Glanville 9 
 
 Offences prosecuted by appeal or by presentment on suspicion 10 
 
 Authority to make inquisitions concerning nuisances 10 
 
 The inquest to answer capitula 1 1 
 
 Rolls of the Itinerant courts n 
 
 When inquest exercised right of presentment II 
 
 Presentments made where person appealed 13 
 
 How appeal was made ia 
 
 Case of Ash ford v. Thornton 13 
 
 Inquiry of the four townships after presentment 14 
 
 Their office not clear 14 
 
 Glanville silent regarding them 14 
 
 No part of inquest in Bracton's time IS 
 
 vii
 
 Ylli TABLE OF CONTENTS. 
 
 PACK 
 
 Townships act only after presentment on suspicion 15 
 
 Optional with justices to inquire of four townships 16 
 
 Mr. Forsyth's opinion 16 
 
 Methods of trial in force 16 
 
 Trial by battle upon appeals 17 
 
 Trial by jury 17 
 
 Allowed by payment of money to the king 17 
 
 Writs awarding inquest not to be sold 17 
 
 Doubted if this applied to criminal cases 17 
 
 Ordeal abolished by Fourth Lateran Council 18 
 
 Itinerant justices in doubt as to mode of trial 18 
 
 Directed to use their discretion 18 
 
 Bracton describes methods of prosecuting offenders 19 
 
 Procedure in holding an eyre 19 
 
 Oath of the principal juror 20 
 
 Oath of his fellow jurors 20 
 
 Pledge of secrecy 21 
 Method of trial with relation to manner of instituting prosecution 21 
 
 Appellee permitted to put himself upon the country 21 
 
 Trial by same jurors who accused doubted 21 
 
 Defendant permitted to challenge for cause 22 
 
 Oath of the trial jurors 22 
 
 Four townspeople act with petit jurors 23 
 
 Difference between oaths of accusing and trial jurors 23 
 
 Trial jury a jury of witnesses 24 
 
 Doctrine of afforciament 24 
 
 Instances of trial by special petit jury 24 
 
 Accusing jury in the time of Britton 25 
 
 Increase of its duties 25 
 
 Jury enlarged in reign of Edward III. 26 
 
 Le graunde inquest 26 
 
 Decline of the hundred inquests 26 
 
 The grand jury a growth 26 
 
 Completion of period of formation 27 
 
 An arm of the government 27 
 
 Effect of the requirement of secrecy 27 
 
 Independence of grand jury established 28 
 
 Trial of Stephen College 28 
 
 Attempt to indict Earl of Shaftesbury 29 
 
 Reason for the ignoramus considered 29 
 Attempt to reform panels of grand jurors under Statute 3, Henry VIII 30 
 
 Sheriffs demur but finally yield 30 
 Chief Justice McKean attempts to overawe Pennsylvania grand jury 31 
 
 The grand jury in America 31 
 
 Refusal to indict John Peter Zenger 32 
 
 No provision for grand jury in Constitution of the United States 32
 
 TABLE OF CONTENTS. IX 
 
 MM 
 
 Adoption of Amendment V to remedy omission 32 
 
 Applies only to offences triable in United States Court* 33 
 Fourteenth amendment does not prohibit States from prosecuting by 
 
 information 33 
 
 Prosecution by information in Pennsylvania rarely employed 34 
 
 Present anomalous position of grand jury 34 
 
 Attacks on the grand jury 35 
 
 Preliminary hearing makes its work superfluous 35 
 Unwise to have prosecution sustained without sanction of impartial 
 
 body 36 
 
 Indictments improperly ignored or found 36 
 
 Innocent defendant not harmed 37 
 
 Judgment of committing magistrate should be reviewed 37 
 
 English stipendiary magistrates 38 
 Combined knowledge of grand jurors productive of correct findings 39 
 
 Irresponsibility of the grand jury 40 
 Oppressive use of grand jury caused adoption of Statute 3, Henry VIII. 
 
 C. 12 41 
 
 Scarlet's Case 42 
 
 No injury from secrecy of the grand jury 42 
 
 Conservative view of institution expressed by Chief Justice Shaw 43 
 
 Grand jury abolished in some states 44 
 
 Power of the California grand jury 44 
 
 Conservatism of the Eastern States 44 
 
 Judge King's warning 44 
 
 PART II. 
 ORGANIZATION AND QUALIFICATIONS. 
 
 Number composing grand jury 45 
 
 Only twenty-three sworn 45 
 
 Reason of the rule 45 
 
 Presence of greater number will vitiate indictment 46 
 
 Empaneling statutory number 46 
 
 In re Wilson 47 
 
 Selection of grand jurors regulated by statute 47 
 
 General method of selection 48 
 
 Failure to summon at designated time 48 
 
 Requisites of the venire 49 
 
 Errors in names of grand jurors 49 
 
 Return to venire 49 
 
 Failure to sign return 50 
 
 May be amended 50 
 
 Deficiency in number of grand jurors 50 
 
 Judge not to furnish names of talesmen 50
 
 X TABLE OF CONTENTS. 
 
 urn 
 
 Record must show deficiency 5* 
 
 Juror appearing after grand jury begins duties may act 5 1 
 
 When tales may issue S 2 
 
 Selection of talesmen from improper class 52 
 
 Selection of grand jurors in Pennsylvania 52 
 
 Manner of drawing 53 
 
 How summoned 54 
 
 Sheriff's return to venire 54 
 
 Grand jury detained after end of term 54 
 
 When tales may issue 54 
 
 Number of talesmen to be summoned 54 
 
 Drawing grand jurors in Federal Courts 55 
 
 How summoned 55 
 
 Manner of supplying deficiency 55 
 
 Number to be summoned 56 
 
 Indictment sustained if twelve present and concur 56 
 
 Summoning grand jurors from part of district 56 
 
 Not in conflict with sixth amendment 57 
 
 Selection of grand jurors in England 57 
 
 Irregularity in drawing 57 
 
 Absence of officer when drawing made 58 
 
 De facto officers and grand jurors 58 
 
 Case of People v. Petrea 58 
 
 By whom grand jurors summoned 59 
 
 Presumption that official acts are lawfully performed 59 
 
 Qualifications of grand jurors 60 
 
 Views of Bracton, Chitty and Coke 60 
 
 Qualifications defined by II Hen. IV. 61 
 
 Present qualifications of English grand jurors 61 
 
 In Pennsylvania 61 
 
 When grand juror must be a freeholder 62 
 
 To have no suit against any man 62 
 
 Nor be charged with any offence 63 
 
 In some instances must be qualified voters 63 
 
 Shall have paid taxes for previous year 63 
 
 Women may not serve in State of Washington 63 
 
 Qualifications of Federal grand juror 63 
 
 Alien not competent 64 
 
 When advantage may be taken of irregular proceedings 64 
 
 When right of challenge wrongfully refused 65 
 
 Causes of challenge to array 66 
 
 When array will not be quashed 67 
 
 Time of making motion in Federal Courts 68 
 
 When challenge to array does not extend to entire panel 69 
 
 Legislature may determine time of making challenge 70 
 
 Person making challenge must be under prosecution 70
 
 TABLE OF CONTENTS. XI 
 
 PACK 
 
 State's Attorney cannot challenge panel 70 
 
 But may challenge individual jurors TO 
 
 Defendant failing to challenge waives right 71 
 
 By whom it may be made 71 
 
 Exemption from grand jury service 72 
 
 Distinction between disqualifications and exemptions 72 
 
 Objections to personal qualifications of grand juror 73 
 
 Rule in Federal Courts 73 
 
 Case of Crowley v. United States 74 
 
 Challenge for favor a common law right 74 
 
 No right of challenge in England 75 
 
 Juror incompetent when drawn may become qualified 75 
 
 Challenges for individual disqualification 76 
 
 Prosecutor as grand juror 78 
 
 When forming and expressing opinion disqualifies 78 
 
 Submission of new bill to same grand jury 78 
 
 Case of State v. Gillick 79 
 
 Petit juror on former trial as grand juror 80 
 
 Grand juror related to prosecutor 80 
 
 When change of domicile will disqualify 81 
 
 Religious belief will not disqualify 81 
 
 Grand juror cannot be examined on voir dire 81 
 
 When triers appointed on challenge for favor 82 
 
 Peremptory challenges not allowed 82 
 
 Exclusion of competent grand juror by district attorney 84 
 
 Court may excuse on application 84 
 
 And dismiss for cause 84 
 
 Presumption that jurors were excused 85 
 
 Challenges may be made after grand jury sworn 85 
 
 And after indictment found 85 
 
 By motion to quash and plea in abatement 86 
 
 Court will not quash where defendant not prejudiced 86 
 
 Objection too late after general issue pleaded 87 
 
 Cannot be raised in collateral proceeding 88 
 
 Empaneling of grand jury 88 
 
 Must be shown by record 89 
 
 Two grand juries at same term illegal 89 
 
 Empaneling grand jury where statute changed 89 
 
 SeJection of foreman 90 
 
 Appointment to be shown by record 90 
 
 Selection of clerk 91 
 
 Manner of swearing grand jurors 91 
 
 Administration of oath to be shown by record 92
 
 Xll TABLE OF CONTENTS. 
 
 PAGE 
 
 PART III. 
 THE OATH, POWERS AND DUTIES OF GRAND JURORS. 
 
 The oath as his commission 94 
 Form of oath administered to foreman 94 
 Short form taken by the jurors generally 97 
 Oath of the Twelve Thanes 98 
 The oath in Bracton's period 98 
 In the time of Britton . 99 
 Book of Oaths of Cromwell's period 99 
 Oath as limiting grand juror's power 99 
 Right to institute all proceedings 100 
 Views of Attorney General Bradford 100 
 The Pennsylvania rule IOI 
 Judge Addison's charge 101 
 "Diligently inquire and true presentment" defined 101 
 Charge of Chief Justice Taney 102 
 Chief Justice Chase construes powers of Federal grand jury 102 
 May not summon witnesses 103 
 When additional testimony will be submitted 104 
 Inquisitorial powers in certain states 104 
 Presentment made when evidence heard 105 
 Evidence to warrant finding true bill 105 
 Limitation upon their inquiry 105 
 Judge King's opinion 106 
 Mr. Justice Field's opinion 108 
 Wherein the powers of grand jurors in Pennsylvania and the Fed- 
 eral Courts coincide no 
 Additional powers of Federal grand jurors no 
 District Attorney's right to prefer indictment no 
 Seldom exercised without leave of court in 
 Case of Rowand "v. Commonwealth 1 12 
 The legality of such action questioned 1 12 
 Sustained by Judge Pratt 113 
 His opinion not supported by the authority cited 113 
 Refusal to quash equivalent to prior sanction 114 
 District Attorney's bill to be earmarked 114 
 Right to file information in Federal Courts 115 
 Adopted in certain states 115 
 Grand jury as defender of liberty of the press 115 
 Public press attacks grand jury 116 
 Grand juror's oath enjoins secrecy 116 
 Purpose of this requirement 116 
 Originally not a grand juror's prerogative 116 
 Cases of Scarlet and Lord Shaftesbury 117 
 Case of State v. Branch 117
 
 TABLE OF CONTENTS. Xlll 
 
 MM 
 
 Grand jurors may testify in certain cases 118 
 
 But may not impeach their finding 119 
 
 Provision for secrecy includes district attorney 120 
 
 Does not include witnesses 120 
 
 Grand juror refusing to disclose how he voted not in contempt 121 
 
 Duties imposed upon grand jurors by statute 121 
 
 Incorporation of boroughs 121 
 
 Erection of county buildings and bridges 121 
 
 In Connecticut to inform justices of peace of violations of law 122 
 
 Examination of county books 122 
 
 And sufficiency of official bonds 122 
 
 In Vermont to arrest without warrant for violation of liquor laws 122 
 
 Grand jurors not sworn in any cause 122 
 
 PART IV. 
 
 How THE GRAND JURY TRANSACTS BUSINESS AND ITS RELATION TO THE 
 
 COURT. 
 
 The charge of the court 124 
 
 A means of communication with the public 124 
 
 When a supplementary charge may be delivered 125 
 
 First suggested on the trial of Aaron Burr 125 
 
 Judge Cranch's opinion 126 
 
 Part of grand jury may be specially charged 126 
 
 Use of inflammatory language 126 
 
 Attendance of district attorney on grand jury 127 
 
 When his presence is improper 128 
 
 Presence of private counsel improper 128 
 
 Mr. Justice Clark's opinion as to presence of district attorney 129 
 
 The "right" of the district attorney to be present 129 
 
 Presentment defined 130 
 Whether defendant may be tried upon presentment without indictment 131 
 
 Indictment defined 131 
 
 Presentment not found upon testimony of witnesses 131 
 
 Indictment void unless evidence heard 132 
 
 Procuring attendance of witnesses 132 
 
 Production of documents 133 
 
 Court to determine their relevancy 133 
 
 Witness not compelled to incriminate himself 133 
 
 Must claim constitutional privilege 133 
 
 Where witness refuses to testify 133 
 
 Signing of indictment by district attorney 134 
 
 Invalid where signed by improper official 134 
 
 Witnesses' names endorsed on bill 135
 
 XIV TABLE OF CONTENTS. 
 
 PAGE 
 
 Prosecutor's name to be endorsed I 3S 
 
 When not essential 136 
 
 Governor of state endorsed as prosecutor 136 
 
 When witnesses' names not endorsed 136 
 
 Witnesses must be sworn 137 
 
 When foreman may administer oath 137 
 
 Indictment quashed if witnesses not sworn 138 
 
 But judgment will not be arrested 138 
 
 Grand jurors may interrogate witnesses 139 
 
 Presence of improper person in grand jury room 139 
 
 Defendant's witness not to appear 140 
 
 Incompetent evidence not to be received 142 
 
 When an indictment will be quashed upon this ground 143 
 
 When sustained 145 
 
 All witnesses must be heard before bill ignored 146 
 
 The finding of the grand jury 147 
 
 Twelve must concur 147 
 
 Cannot find for part of a count 147 
 
 Finding endorsed on bill 148 
 
 When to be signed by foreman 148 
 
 Variance in name of foreman 149 
 
 Omission of words "a true bill" 149 
 
 Reconsideration of finding 150 
 
 Sufficient endorsement of finding 150 
 
 Failure to endorse finding 151 
 
 Date of finding to be endorsed on bill 151 
 
 Defendant indicted by initials of Christian name 152 
 
 If bill ignored new bill may be submitted 152 
 
 Mr. Justice Woodward's opinion 152 
 
 When leave of court to be obtained 153 
 
 Manner of returning indictments into court 154 
 
 Obtaining assent of grand jury to amendment of matter of form 154 
 
 Pennsylvania Act of Mlarch 31, 1860 154 
 
 Altering indictment in matter of substance 154 
 
 Ex Parte Bain 155 
 
 Bill not read to grand jury 155 
 
 Findings need not be read in open court 156 
 
 Failure to record finding 156 
 
 Bills to be filed after finding recorded 157 
 
 Report of grand jury upon completion of their labors 157 
 
 Recommendations outside their authority 157 
 
 The practice condemned 158 
 
 Libellous statements in report of grand jury 158 
 
 Expunging report from minutes 159 
 
 Discharge of grand jury 160 
 
 Resummoning after discharge -.160
 
 TABLE OF CONTENTS. XV 
 
 i'A , 
 
 Grand juror not to disclose secrets of grand jury room 162 
 
 Attempt to influence grand jurors 162 
 
 Case of Commonwealth i: Crans 162 
 
 Control of court over grand jury 163 
 
 Fining of Sir Hugh Wyndham illegal 164 
 
 Grand jury uncontrolled in their finding 164 
 
 Extent of court's control 164 
 
 Contempt by grand juror 165 
 
 Misconduct of grand juror 166 
 
 Exemption from personal liability for official acts 166
 
 Table of Text Books and Miscellaneous 
 
 Articles 
 
 PACK 
 
 Abolition of the Grand Jury, (C. E. Chiperfield) 5 Am. Law, 487 40 
 
 Addison's Charges to Grand Juries, (Add. Rep. Appendix) 
 
 i, 101, 105, 123, 131, 141, 160 
 
 Bacon's Abridgement, Indictment C. 84 
 
 Bacon's Abridgement, Juries 64 
 
 Bentham Rationale of Judicial Evidence i, 35, 116 
 
 Bispham's Principles of Equity 8 
 
 Blackstone's Commentaries 
 
 i, 3, 4, 5, 8, 28, 45, 61, 64, 105, 113, 116, 118, 130, 131, 147, 152 
 Book of Oaths 99 
 
 Boston Law Reporter. (Vol. I, p. 4) 120 
 
 Bouvier's Law Dictionary (Rawle's Revision) 3, 5 
 
 Bracton-de legibus (Sir Travers Twiss ed.) 
 
 9, 10, n, 12, 13, 19, 20, 21, 22, 23, 24, 27, 60, 99 
 
 Britton (Legal Classic Series) 9, 25, 27, 99 
 
 Charge to Grand Jury (Chief Justice Chase), 30 Fed. Cas. 980 102 
 
 Charge to Grand Jury, (Mr. Justice Field) 30 Fed. Cas. 992 
 
 101, 103, 105, 108, 127, 128, 130, 162 
 
 Charge to Grand Jury, (Chief Justice Shaw) 8 Am. Jurist 216 43, 105 
 Charge to Grand Jury, (Chief Justice Taney) 30 Fed. Cas. 998 102 
 
 Chitty's Criminal Law 
 
 60, 61, 64, 70, 103, 104, 105, 118, 142, 144, 147, 148, 152, 154, 155, 167 
 Chitty's English Statutes 57, 61 
 
 Coke's Institutes 41, 60, 105 
 
 Coke on Littleton 6 
 
 Crabb's History of English Law 2, 4, 22 
 
 Davis' Criminal Law in Virginia 105 
 
 Davis' Precedents of Indictments 36, 105, 142, 158, 161 
 
 Dickinson's Quarter Sessions (sth ed.) 104 
 
 East's Pleas Crown 144 
 
 Essay on the Law of Grand Juries (E. Ingersoll) i, 4, 7, 22, 116 
 
 Fiske Beginnings of New England 31 
 
 Fiske The Dutch and Quaker Colonies in America 32 
 
 Forsyth Trial by Jury 4, 7, 8, 16, 17, 21, 24, 27 
 
 Glanville (Beames Translation Legal Classic Series) 9, 10, n, 15 
 
 Grand Juries, 29 L. T. 21 I, 35, 38 
 
 xvi
 
 TABLE OF TEXT BOOKS. XV11 
 
 MM 
 
 Grand Juries, 67 L. T. 381 39 
 
 Grand Juries and the Pleas of Criminals (John Lascelles Law Mag. 
 
 and Rev., Vol. 4) 2, 6 
 
 Grand Juries in the United States (7 Law Journal 729) 44 
 
 Grand Jurors as Witnesses (M. W. Hopkins, 21 Cen. L. J. 104) 118 
 
 Greenleaf on Evidence 119, 120 
 
 Growth of the Grand Jury System (J. Kinghorn, Law Mag. & Rev.) 
 
 2, 3, 29, 3i 127 
 
 Hale Pleas Crown 64, 105, 133, 147, 148, 164 
 
 Hallam's Constitutional History of England 29 
 
 Hallam's Middle Ages 10, 18, 24 
 
 Hawkins Pleas Crown 41, 60, 61, 64, 70, 142, 144, 147, 148 
 
 Francis Hopkinson's Works 31, 105, 164 
 
 Huband Grand Jury in Ireland 2, 4, n, 16 
 
 Jury and Its Development (Prof. J. B. Thayer, 5 Harv. Law Rev. 
 
 251) 4, 17, 18 
 
 Lesser History of the Jury System 7, 9, 16, 17, 18, 24, 31 
 
 Maitland's Gloucester Pleas 19 
 
 North's Examen 31 
 
 Older Modes of Trial (Prof. J. B. Thayer, 5 Harv. Law Rev. 265) 6, 8, 9 
 On Grand Juries (E. E. Meek, 85 L. T. 395) 39 
 
 Opinions of Attorneys General U. S. 100 
 
 Origin of Grand Juries (E. Anthony, i Chicago Leg. News) 4 
 
 Palgrave's English Commonwealth 10 
 
 Pennsylvania Colonial Cases (Hon. S. W. Pennypacker) 31 
 
 Pollock and Maitland's History of English Law 16 
 
 Reeves History English Law 2, 3, 4, 9, 10, n, 22, 26, 30 
 
 Robert's Digest of British Statutes 23, 64 
 
 Security of Englishmen's Lives, etc. (Lord Somers) i, 105 
 
 Select Pleas of the Crown (Selden Society) 6, II, 13, 14, 16, 24, 25 
 
 Smith's Laws 105 
 
 Spence Equitable Jurisdiction of the Court of Chancery 2, 4 
 
 Stubb's Select Charters 4, 6, 17, 18 
 
 The Literary Digest (Vol. 30, p. 50) 44 
 
 Thompson and Merriam on Juries 44, 75, 121, 161 
 
 Trials per Pais (Giles Duncombe) 64, 120 
 
 Watson's Annals of Philadelphia 32 
 
 Wharton's Criminal Law (7th ed.) 
 
 45, 56, 64, 68, 77, 90, 92, 100, 104, 105, 136, 137, 139, 142, 144, 145, 147, 
 
 148, 154, 164, 165 
 
 Wilkin's Leges Anglo Saxonicae 2, 4, 5, 98 
 
 Jas. Wilson's Works I, 94, 100, 105, 124
 
 Table of Statutes and Constitutions 
 
 England. 
 
 Statute of Ethelred II. (A. D. 978-1016) 2 
 
 Assize of Clarendon (A. D. 1166) 7 
 
 Assize of Northampton (A. D. 1176) 7, 8 
 
 Magna Charta (King John) Article 36 17 
 
 Magna Charta (Henry III) Article 29 17, 39 
 
 25 Edw. Ill, Stat. 5, c. 5 2 3 
 
 ii Hen. IV, c. 9 61 
 
 3 Hen. VIII, c. 12 30, 41 
 
 59 Geo. Ill, c. 46 13 
 
 6 Geo. IV, c. 50 57, 61 
 
 United States. 
 
 Constitution, Art III, Sec. 3 144 
 
 Amendment V. 32, 115, 131, 147 
 
 Amendment XIV. 33, 66, 67, 147 
 
 Revised Statutes, Sec. 721 63 
 
 Sec. 800 55 
 
 Sec. 801 55 
 
 Sec. 802 57 
 
 Sec. 808 45, 55 
 
 Sec. 811 160 
 
 Sec. 812 63, 73 
 
 Sec. 820 63, 73 
 
 Sec. 1021 147 
 
 Sec. 1022 115 
 
 Sec. 1025 74, 154 
 
 Sec. 1671 73 
 
 Act July 20, 1840, 5 Stat. 394 88 
 
 June 30, 1879, 21 Stat. 43 55, 63 
 
 March 22, 1882 82 
 
 Alabama. 
 
 Code, 1876, Sec. 4445 64 
 
 Sec. 4767-4768 122 
 
 Code, 1896, Sec. 5024 95 
 
 Act February 28, 1887 65 
 
 March 2, 1901 65 
 
 xviii
 
 TABLE OF STATUTES AND CONSTITUTIONS. XIX 
 
 PAGB 
 
 Arizona. 
 
 Code Cr. Proc., Sec. 800 98 
 
 Arkansas. 
 
 Statutes, Ch. 49, Sec. 3041 96 
 
 California. 
 
 Constitution 1879 IJO 
 
 Art. I., Sec. 8 44 
 
 Penal Code, Sec. 903 97 
 
 Sec. 915-929 44 
 
 Sec. 921 105 
 
 Colorado. 
 
 Constitution 1876, Art. II, Sec. 23 44 
 
 Ann. Statutes 1891, Ch. 73, Sec. 2617 97 
 
 Connecticut. 
 
 General Statutes, Tit. 20, c. 12, Sec. 23 12 
 
 Tit. 54, c. 281, Sec. 4795 95 
 
 General Statutes 1875, Sec. i, p. 531 122 
 
 Sees. 2, 3, 4, 5, p. 531 122 
 
 Florida 
 
 Revised Statutes 1892, Sec. 2808 95 
 
 Sec. 2809 90 
 
 1891, Sec. 4015 Cl. 5 M7 
 
 Georgia. 
 
 Code 1873, Sec. 510 122 
 
 Sec. 3919 122 
 
 Sec. 3920 122 
 
 Sec. 4632 130 
 
 Penal Code 1895, Sec. 825 95 
 
 Idaho. 
 
 Penal Code, Sec. 5293 96 
 
 Illinois. 
 
 Constitution 1870, Art. Ill, Sec. 8 44 
 
 Statutes, Ch. 78, Sec. 18 96 
 
 Indiana. 
 
 Constitution, 1851, Art. VII, Sec. 17 44 
 
 Statutes 1825, p. 21 122 
 
 Code Cr. Proc., Sec. 1721 96 
 
 Indian Territory. 
 
 Statutes Cr. Proc., Ch. 20, Stc. 1418 98 
 
 Iowa. 
 
 Code, Sec. 4261 79 
 
 Code 1897, Sec. 5249 98 
 
 Kansas. 
 
 Statute, February 12, 1864, Sec 7 44 
 
 General Statutes 1897, Ch. 102, Sec. 97 96
 
 XX TABLE OF STATUTES AND CONSTITUTIONS. 
 
 PAGJt 
 
 Kentucky. 
 Statutes, Ch. 74, Sec. 2250 95 
 
 Maine. 
 
 Revised Statutes, Ch. 135, Sec. 4 9 
 
 Ch. 135, Sec. 2 92, 94 
 
 Massachusetts. 
 
 Revised Laws, Ch. 218, Sec. 5 92, 94 
 
 Ch. 218, Sec. 7 90 
 
 Michigan. 
 
 How. Ann. Stat, Sec. 9461 96 
 
 Sec. 9554 44 
 
 Minnesota. 
 
 General Statutes, Sec. 5641 96 
 
 Mississippi, 
 
 Coclt, Sec. 2372 96 
 
 Sec. 2375 64 
 
 Revised Code 1880, Sec. 1675 122 
 
 Missouri. 
 
 Revised Statutes 1899, Sec. 2489 96 
 
 Sec. 2515 136 
 
 Montana. 
 Penal Code, Sec. 1761 98 
 
 Nebraska. 
 
 Constitution 1875, Art. I, Sec. 10 44 
 
 Comp. Stat., Sec. 8i'39 96 
 
 Nevada. 
 Comp. Stat, Sec. 4158 97 
 
 New Hampshire. 
 Pub. Stat, Ch. 253, Sec. 5 94 
 
 New Mexico. 
 Comp. Laws 1897, Sec. 967 98 
 
 New York. 
 
 Crim. Code, Sec. 313 70 
 
 Code Cr. Prac., Sec 245 95 
 
 Sec. 256 144 
 
 Sec. 270 112 
 
 North Carolina. 
 Act 1879, c. 12 I37 
 
 North Dakota. 
 Revised Code 1895, Sec. 8004 98 
 
 Ohio. 
 
 Revised Statutes, Sec. 5164 73 
 
 Sec. 7191 96 
 
 Sec. 7207 135
 
 TABLE OF STATUTES AND CONSTITUTIONS. XXI 
 
 Oklahoma. 
 
 Revised Statutes 1903, Sec. 5329 98 
 
 Oregon. 
 
 Code, Sec. 1271 97 
 
 Pennsylvania. 
 
 Constitution 1874, Art. I, Sec. 10 34, 113 
 
 Act. April 5, 1826 138 
 
 April i, 1834, P. L. 163 121 
 
 April 14, 1834, Sec. 87, P. L. 357 53 
 
 April 14, 1834, Sec. 149, P. L. 366 64 
 
 April 15, 1834, P. L, 539 121 
 
 June 16, 1836, P. L. 23 116, 165 
 
 April 16, 1840, Sec. 6, P. L. 411 78 
 
 March i, 1843, P. L. 123 53 
 
 May 3, 1850, P. L. 654 130, 134 
 
 April 20, 1858, P.L. 354 53, 62 
 
 April 13, 1859, P. L. 595 53 
 
 March 31, 1860, Sec. 10, P. L. 433 137, 138 
 
 Sec. ii, P. L, 427 154 
 
 Sec. 27, P. L. 427 135 
 
 Sec. 41, P. L. 439 54, 56 
 
 March 13, 1867, P. L. 420 53 
 
 April 10, 1867, P. L. 62 53, 62 
 
 April 16, 1870, P. L. 1199 127 
 
 June 2, 1871, P. L. 283 121 
 
 March 18, 1875, Sec. i, P. L. 28 54 
 
 June i, 1883, P. L. 58 121 
 
 Mky 23, 1887, Sec. 2, P. L. 158 144 
 
 May 26, 1891, P. L, 120 121 
 
 Rhode Island. 
 
 General Laws, Ch. 227, Sec. 34 94 
 
 South Dakota. 
 
 Code. Cr. Proc., Sec. 177 98 
 
 Tennessee. 
 
 Statutes 1871, Sec. 5079 122 
 
 Code Sec. 5085 81 
 
 Sec. 5833 95 
 
 Texas. 
 
 Code 1898, Sec. 7058 135 
 
 Code Cr. Proc. 1895, Sec. 397 64 
 
 1897, Art. 404 95 
 
 Utah. 
 
 .Revised Statutes, 1898, Sec. 4708 97
 
 XX11 TABLE OF STATUTES AND CONSTITUTIONS. 
 
 PAGB 
 
 Vermont. 
 
 General Statutes 1862, Sec. 25, p. 596 122 
 
 Sec. 33, p. 600 122 
 
 Statutes, Ch. 233, Sec. 5418 94 
 
 Virginia. 
 
 Code, Tit. 53, Ch. 195, Sec. 3980 95 
 
 Code, Sec. 3991 135 
 
 Washington. 
 Code, Sec. 6809 97 
 
 West Virginia, 
 Code, Ch. 157, Sec. 5 96 
 
 Wisconsin. 
 Statutes, Ch. 116, Sec. 2547 92, 96 
 
 Wyoming. 
 Revised Statutes, Sec. 5282 97
 
 Table of Cases 
 
 PAGE 
 
 Abram v. State, 25 Miss. 589 93 
 
 Abrams, Ullman v., 72 Ky. 738 167 
 
 Adams, Insurance Co. v., no Pa. 553 66 
 
 Adams v. State, 28 Fla. 511 63 
 
 Adams v. State, n Ind. 304. 156 
 
 Adams, State v., 20 Iowa 486 72 
 
 Adams, State v., 40 La. Ann. 745 128 
 
 Adams, State v., 70 Tenn. 647 104 
 
 Adams Express Co., Fotheringham v., 34 Fed. Rep. 646 119 
 
 Addison, State v., 2 S. C. 356 128 
 
 Agnew v. United States, 165 U. S. 36 69, 85, 86 
 
 Alabama, Rogers v., 192 U. S. 226 67 
 
 Alden v. State, 18 Fla. 187 149 
 
 Alderson, State v., 10 Yerg. (Tenn.) 523 49 
 
 Aleck, State v., 41 La. Ann. 83 128 
 
 Alexander, State v., 35 La. Ann. iioo 81 
 
 Allen v. Com. 2 Bibb (Ky.) 210 136 
 
 Allen, Com. v., 14 Pa. C. C. Rep. 546 153 
 
 Allen v. Gray, n Conn. 95 167 
 
 Allen, State v., R. M. Charlton's Rep. (Ga.) 518 155 
 
 Allen, State v., 22 Mo. 318 136 
 
 Allen, State v., 83 N. C. 680 137 
 
 Allen v. State, 77 111. 484 91 
 
 Allen v. State, 61 Miss. 627 165 
 
 Allen v. State, 5 Wis. 329 103 
 
 Ambrose, United States v., 3 Fed. Rep. 283 55 
 
 Ames, State v., 96 N. W. 330 64, 73, 74 
 
 Anderson v. State, 5 Ark. 444 134 
 
 Andrews v. People, 117 111. 195 135 
 
 Anonymous, 7 Cow. (N. Y.) 563 128 
 
 Antz, United States v., 16 Fed. Rep. 119 66 
 
 App v. State, 90 Ind. 73 89 
 
 Appeal, Hartranft's, 85 Pa. 433 no, 143 
 
 Archer, In re, 96 N. W. 442 120, 133 
 
 Armijo, Territory v., 37 Pac. 1117 87 
 
 Armstrong, State v., 167 Mo. 257 49 
 
 Arnold, People v., 15 Calif. 476 69 
 
 xxiii
 
 XXIV TABLE OF CASES. 
 
 PAQB 
 
 Ashburn v. State, 15 Ga. 246 92, 138 
 
 Ashford v. Thornton, i B. and Aid. 405 13 
 
 Austin, Reg. v. 4 Cox C. C. 385 152 
 
 Avirett v. State, 76 Md. 510 66 
 
 Ayles worth v. State, 65 111. 301 156 
 
 Ayres, United States v., 46 Fed. Rep. 651 56 
 
 Ayrs v. State, 5 Cold. (Tenn.) 26 137 
 
 Bacon, State v., 77 Miss. 366 140 
 
 Bain, Ex Parte, 121 U. S. i 154, 155 
 
 Baker, King v., Rowe's Rep. of Int. Cases 603 166 
 
 Baker, State v., 20 Mo. 338 119, 120 
 
 Baker, State v., 33 W. Va. 319 128 
 
 Baker v. State, 39 Ark. 180 93 
 
 Baker v. State, 23 Miss. 243 83 
 
 Baldwin, In re, 2 Tyler (Vt.) 473 84 
 
 Baldwin v. State, 126 Ind. 24 104 
 
 Baldwin, State v., 15 Wash. 15 33 
 
 Bales v. State, 63 Ala. 30 57 
 
 Banks, State v., 40 La. Ann. 736 157 
 
 Bannon, Com.v., 97 Mass. 214 160 
 Barber v. State, 46 S. W. 233 64, 71, 87 
 
 Barger v. State, 6 Blackf. (Ind.) 188 160 
 
 Barker, Floyd v., 12 Co. 23 167 
 
 Barker, State v., 107 N. C. 913 147 
 
 Barkmann v. State, 52 S. W. 69 71 
 
 Barnes, State v., 73 Tenn. 398 104 
 
 Barnett, State v., 3 Kan. 250 33 
 Barney v. State, 12 Snredes & M. (Miss.) 68 61, 62, 68, 85, 87, 147 
 
 Barrett, Territory v., 42 Pac. 66 87 
 
 Barron v. People, 73 111. 256 56 
 
 Barth, Territory v., 15 Pac. 673 83, 84 
 
 Bartlett v. Humphreys, Hardin (Ky.) 513 136 
 
 Bartley v. People, 156 111. 234 135 
 
 Battle, State v., 126 N. C. 1036 54 
 
 Bates, State v., 148 Ind. 610 140 
 
 Bates, United States v., 24 Fed. Cas. 1042 153 
 
 Beal v. State, 15 Ind. 378 103 
 
 Beam v. Link, 27 Mo. 261 120 
 
 Beasley v. People, 89 111. 571 51 
 
 Season v. State, 34 Miss. 602 60 
 
 Beatty, People v., 14 Calif. 566 69, 103 
 
 Beavers v. State, 58 Ind. 530 156 
 
 Beckey, State v., 79 Iowa 368 66 
 
 Beebe, State v. 17 Minn. 241 120 
 
 Beldham, Com. v., 15 Pa. Superior Ct. 33 no 
 
 Bell v. State, 42 Ind. 335 88, 89
 
 TABLE OF CASES. XXV 
 
 Bcllairt/. State, 6 Blackf. (Ind.) 104 64 
 
 Belvel, State v. 89 Iowa 405 68 
 
 Belvin, United States v., 46 Fed Rep. 381 77,' 9 
 
 Bennet v. Watson, 3 M. & S. I 133 
 
 Bennett, State v., 45 La. Ann. 54 160 
 
 Bennett v. State, 62 Ark. 516 139, 140 
 
 Bennett v. State, i Martin u Yerg. (Tenn.) 133 48 
 
 Bennett v. State, 8 Humph. (Tenn.) 118 156 
 
 Benson v. State, 68 Ala. 513 50, 57 
 
 Benson v. State, 68 Ala. 544 148 
 
 Benson, United States v., 31 Fed. Rep. 896 78 
 
 Bergh's Case, Henry, 16 Abb. Pr. N. S. (N. Y.) 266 162 
 
 Berry v. State, 63 Ala. 126 5* 
 
 Betts v. State, 66 Ga. 508 76, 80 
 Billings, State v. 77 Iowa 417 76, 78, 82 
 
 Billingslea v. State, 68 Ala. 486 65 
 
 Bindley, Stark v., 52 N. E. 804 103 
 
 Bird v. State, 14 Ga. 43 48 
 
 Bird v. State, 50 Ga. 585 137 
 
 Bird v. State, 103 Tenn. 343 150 
 
 Blackmore v. State, 8 S. W. 940 90 
 
 Blaney v. State, 74 Md. 153 104 
 
 Blau v. State, 34 So. 153 31, 127 
 
 Bleekley, State v., 18 Mo. 428 77 
 
 Blevins v. State, 68 Ala. 92 51, 129 
 
 Blodgett v. State, 3 Ind. 403 152 
 Blodgett, United States v., 30 Fed. Cas. 1157 69, 85, 103 
 
 Blodgett, United States v., 35 Ga. 336 68, 85 
 
 Bloomer v. State, 3 Sneed. (Tenn.) 66 145 
 
 Blume v. State, 56 N. E. 771 149 
 
 Bollyn v. Nebraska, 176 U. S. 83 33 
 
 Booth v. Com., 16 Gratt. (Va.) 519 73 
 
 Booth, Turpen v., 56 Calif. 65 167 
 
 Bordeaux, State v., 93 N. C. 560 154 
 
 Borgstrom, People v. 178 N. Y. 254 64, 65 
 
 Borough, Millville, 10 Pa. C. C. Rep. 321 121 
 
 Borroum, State v., 25 Miss. 203 87 
 
 Boswell, State v., 104 Ind. 541 115 
 
 Boulo v. State, 51 Ala. 18 65 
 
 Bowen v. State, 24 So. 551 70 
 
 Bowman, State v., 103 Ind. 69 149, 151 
 
 Bowman, State v., 73 Iowa no 83 
 
 Bowman, State v., 90 Me. 363 140 
 
 Boyd, State v., 2 Hill (S. C.) 288 146 
 
 Boyd v. State, 98 Ala. 33 51 
 
 Boyd v. State, 46 Tenn. i 48
 
 XXVI TABLE OF CASES. 
 
 PAGE 
 
 Boyington v. State, 2 Port. (Ala.) 100 85 
 
 Box v. State, 34 Miss. 614 46 
 
 Bradford, State v. 57 N. H. 188 48, 84 
 
 Bradley, State v. 32 La. Ann. 402 66 
 Bradney, Com. v., 126 Pa. 199 78, 84, 128, 129 
 
 Bradner, People v., 44 Hun. (N. Y.) 233 129 
 
 Brady, United States v., 3 Cr. Law. Mag. 69 33 
 Brainerd, State v., 56 Vt. 532 45, 77, M7 
 
 Branch, State v., 68 N. C. 186 n? 
 
 Brandon, State v., 28 Ark. 410 86 
 
 Brandt, State v., 41 Iowa 593 58, 90 
 
 Brannigan v. People, 3 Utah 488 45, 56 
 
 Bredin, Com. v., 165 Pa. 224 114 
 
 Brewer, State v., 8 Mo. 373 120 
 
 Brewster, State v., 42 L. R. A. 444 139 
 
 Bridge Appropriations, In re, 9 Kulp (Pa.) 427 127 
 
 Bridge in Nescopeck, In re, 3 Luz. Leg. Reg. (Pa.) 196 66, 77 
 
 Bridge in Nescopeck, In re, 3 Luz. Leg. Reg. (Pa.) 410 77 
 
 Bridge, Pequea Creek, 68 Pa. 427 122 
 
 Briggs, People v., 60 How. Pr. Rep. (N. Y.) 17 120, 144 
 Brooks, State v. 9 Ala. 9 52, 62, 72 
 
 Brooks, State v. 48 La. Ann. 1519 84 
 
 Broughton, State v., 7 Ired. (N. C.) 96 119 
 
 Brown, Com. v., 147 Mass. 585 81 
 Brown, Com. v. 23 Pa. Superior Ct. 470 no, 114, 134 
 
 Brown v. Com., 73 Pa. 321 66 
 Brown v. Com., 76 Pa. 319 66, 82, in 
 
 Brown v. Com., 86 Va. 466 134 
 
 Brown, State v., 10 Ark. 78 62 
 
 Brown, State v., 10 Ark. 104 135 
 Brown, State v., 81 N. C. 568 150, 152, 156 
 
 Brown, State v., 28 Ore. 147 74 
 
 Brown, State v., 31 Vt. 602 149 
 
 Brown v. State, 10 Ark. 607 92 
 
 Brown v. State, 7 Humph. (Tenn.) 155 156 
 
 Brown v. State, 32 Tex. Cr. Rep. 119 71 
 
 Brown, United States v., 24 Fed. Cas. 1273 145, 146 
 
 Broyles v. State, 55 S. W. 966 90 
 
 Bruce, State v., 77 Mo., 193 134 
 
 Bruner v. Superior Court, 92 Calif. 239 59 
 
 Bryant v. State, 79 Ala. 282 142 
 
 Bryant, State v., 10 Yerg. (Tenn.) 527 62 
 
 Buchanan v. State, 52 S. W. 769 143 
 
 Bucks County Grand Jury, 24 Pa. C. C. Rep. 162 no 
 
 Buntin, State v., 123 Ind. 124 149 
 
 Burdick v. Hunt, 43 Ind. 381 119
 
 TABLE OF CASES. XXV11 
 
 PACK 
 
 Burgess v. Com., 2 Va. Cas. 483 151 
 
 Burnham v. Hatfield, 5 Blackf. (Ind.) 21 119 
 
 Burns, Res, v., i Yeates (Pa.) 370 34 
 
 Burr, United States v. Aaron, 25 Fed. Cas. 55 74, 76, 82, 125, 143 
 
 Burrell v. State, 129 Ind. 290 84 
 
 Burton, Com. v. 4 Leigh (Va.) 645 84 
 
 Bushel's Case, Vaughan, 153 164 
 
 Butler, People v., 8 Calif. 435 147 
 
 Butler, People v., i Idaho 231 134 
 
 Butler, State v., 16 Tenn. 83 104 
 
 Butler, United States v., 25 Fed. Cas. 213 69, 156 
 
 Byrd v. State, I How. (Miss.) 247 91, 127 
 
 Caha v. United States, 152 U. S. 211 154 
 
 Cain, State v., i Hawks. (N. C.) 352 132 
 
 Caldwell v. State, 5 Tex. 18 157 
 
 Calhoon, State v., i Dev. and Bat. (N. C.) 374 148, 149 
 
 California, Hurtado v., no U. S. 516 33, 39 
 
 Cameron, State v., 2 Chand. (Wis.) 172 66 
 
 Campbell v. Com., 84 Pa. 187 66 
 
 Cantrell, State v., 21 Ark. 127 48 
 
 Carl v. State, 28 So. 505 143 
 
 Carlson, State v., 62 Pac. 1016 81 
 
 Carney, State v., 20 Iowa 82 57 
 
 Carpenter, Penfield v., 13 Johns (N. Y.) 350 145 
 
 Carpenter v. People, 64 N. Y. 483 65 
 
 Carpenter v. State, 62 Ark. 286 87 
 
 Carpenter v. State, 4 How. (Miss.) 163 45 
 
 Carter v . State, 75 Ga. 747 73 
 
 Carter v. State, 46 S. W. 236 64, 69 
 
 Carter v. Texas, 177 U. S. 442 67, 68, 69, 86 
 
 Carver, State v., 49 Me. 588 87 
 
 Case of Lloyd and Carpenter, 3 Clark (Pa.) 188 i, 44, 106, in, 158 
 
 Cawood, Com. v., 2 Va. Cas. 527 154, 156 
 
 Chairs, State v., 68 Tenn. 196 78 
 
 Challenge to Grand Jury, 3 N. J. Law Jour. 153 48, 49, 58, 70, 71 
 
 Chambers, State v., 87 Iowa I 70 
 
 Champeau, State v., 52 Vt. 313 67 
 
 Chandler, State v., 2 Hawks. (N. C.) 439 149 
 
 Chappel v. State, 8 Yerg. (Tenn.) 166 156 
 
 Charge to Grand Jury, 5 Dist. Rep. (Pa.) 130 no 
 
 Charge to Grand Jury, Chief Justice Chase's, 30 Fed. Cas. 980 loa 
 Charge to Grand Jury, Chief Justice Shaw's, 8 Am. Jurist 216 43. 105, 160 
 
 Charge to Grand Jury, Chief Justice Taney's, 30 Fed. Cas. 998 102 
 
 Charge to Grand Jury, Judge Stowe's, 3 Pitts. Rep. (Pa.) 179 158 
 Charge to Grand Jury, Mr. Justice Field's, 30 Fed. Cas. 992 
 
 loi, 103, 105, 108, 127, 128, 130, 162
 
 XXV111 TABLE OF CASES. 
 
 PAOB 
 Charges to Grand Juries, Judge Addison's, Add. App. (Pa.) 
 
 i, 101, 105, 123, 131, 141, 160 
 
 Charles, United States v., 25 Fed. Cas. 409 118 
 
 Charters, Com. v., 20 Pa. Superior Ct. 599 153 
 
 Chartz v. Territory, 32 Pac. 166 50 
 
 Chase v. State, 46 Miss. 683 68 
 
 Chase v. State, 20 N. J. Law 218 48, 49 
 
 Chauncey, Com. v., 2 Ashm. (Pa.) 101 49, 66, 87 
 
 Cheek v. State, 38 Ala. 227 152 
 
 Cherry, Com. v., 2 Va. Cas. 20 64 
 
 Cherry v. State, 6 Fla. 679 150 
 
 Christmas v. State, 53 Ga. 81 152 
 
 Church, Com. v., i Pa. 105 86 
 
 Citizens Association, In re, 8 Phila. (Pa.) 478 124, 135, 147 
 
 Clair v. State, 40 Neb. 534; 28 L. R. A. 367 124, 126 
 
 Clapper, State v., 59 Iowa, 279 150 
 
 Clare v. State, 68 Ind. 17 156 
 
 Clare v. State, 30 Md. 163 66, 68, 87 
 
 Clarissa, State v., n Ala. 57 76, 85, 87 
 
 Clark v. United States, 19 App. D. C. 295 90 
 
 Clark, United State v., 46 Fed. Rep. 633 74 
 
 Clarke, Com. v., 2 Browne (Pa.) 325 62, 76, 82, 85 
 
 Clawson v. United States, 114 U. S. 477 82 
 
 Clayton, State v., n Rich. Law (S. C.) 581 45 
 
 Clayton, Territory, v., 8 Mont, i 64 
 
 Clayton, Territory v., 19 Pac. 293 69 
 
 Clem v. State, 33 Ind. 418 160 
 
 Clements, People v., 5 N. Y. Cr. Rep. 288 153 
 
 Clemmer, Com. v., 190 Pa. 202 no 
 
 Clifton, State v., 73 Mo. 430 68, 87 
 
 Clough, State v., 49 Me. 573 49, 50, 139 
 
 Clune, Com. v., 162 Mass. 206 155 
 
 Clune, United States v., 62 Fed. Rep. 798 63, 74, 76 
 
 Clyncard's Case, Cro. Eliz. 654 147 
 
 Cobb v. State, 40 Neb. 545 124 
 
 Cobban, United States v., 127 Fed. Rep. 713 127, 128, 142 
 
 Cock v. Rambo, Pa. Colonial Cases 79 32 
 
 Cody v. State, 3 How. (Miss.) 27 135 
 
 Cole, State v., 17 Wis. 674 64 
 
 Cole, State v., 19 Wis. 129 80 
 
 Coleman, State v. 8 S. C. 237 134 
 
 College's Trial, 8 How. St. Tr. 549 29 
 
 Collins v. People, 39 111. 233 150 
 
 Collins, State v., 3 Dev. (N. C.) 117 149 
 
 Collins, State v., 65 Tenn. 151 91, 148 
 
 Collins v. State, 13 Fla. 651 130
 
 TABLE OF CASES. XXIX 
 
 PAOB 
 
 Collins v. State, 31 Fla. 574 75 
 
 Collis, State v., 73 Iowa 542 153 
 
 Colmere, People v. 23 Calif. 632 85 
 
 Combs v. Com., 90 Va. 88 48 
 
 Comer, State v., 157 Ind. 611 133, 144 
 
 Com., Allen v., 2 Bibb. (Ky.) 210 136 
 
 Com. v. Allen, 14 Pa. C. C. Rep. 546 153 
 
 Com. v. Bannon, 97 Mass. 214 160 
 
 Com. v. Beldham, 15 Pa. Superior Ct. 33 no 
 
 Com., Booth v., 16 Gratt (Va.) 519 73 
 Com. v. Bradney, 126 Pa. 199 78, 84, 128, 129 
 
 Com. v. Bredin, 165 Pa. 224 114 
 
 Com., Brown v., 73 Pa. 321 66 
 
 Com., Brown v., 76 Pa. 319 66, 82, m 
 
 Com., Brown z-., 86 Va. 466 134 
 
 Com. v. Brown, 147 Mass. 585 81 
 
 Com. v. Brown, 23 Pa. Superior Ct. 470 no, 114, 134 
 
 Com., Burgess v., 2 Va. Cas. 483 151 
 
 Com. v. Burton, 4 Leigh (Va.) 645 84 
 
 Cont., Campbell v., 84 Pa. 187 66 
 
 Com. v. Cawood, 2 Va. Cas. 527 154, 156 
 
 Com. v. Charters, 20 Pa. Superior Ct. 599 153 
 
 Com. v. Chauncey, 2 Ashm. (Pa.) 101 49, 66, 87 
 
 Com. v. Cherry, 2 Va. Cas. 20 64 
 
 Com. v. Church, i Pa. 105 86 
 Com. v. Clarke, 2 Browne (Pa.) 325 62, 76, 82, 85 
 
 Com. v. Clemmer, 190 Pa. 202 no 
 
 Com. v. Clune, 162 Mass. 206 155 
 
 Com., Combs v., go Va. 88 48 
 
 Com. v. Cosier, 8 Luz. Leg. Reg. (Pa.) 97 62, 73 
 
 Com. v. Craig, 19 Pa. Superior Ct. 81 73, 78, 82 
 
 Com. v. Crans, 2 Clark (Pa.) 441 162, 165 
 
 Com., Crimm v ., 1 19 Mass. 326 46 
 
 Com. v. Cunningham, 6 Gratt. (Va.) 695 62 
 
 Com., Davidson v., 5 Cen. Rep. 484 114 
 
 Com., Davis v., 89 Va. 132 48 
 
 Com. v. Delemater, 2 Dist. Rep. (Pa.) 562 53, 66, no 
 
 Coin. -v. Dietrich, 7 Pa. Superior Ct. 515 45 
 
 Com. v. Diffenbaugh, 3 Pa. C. C. Rep. 299 148 
 
 Com. v. Dittus, 17 Lane. Law Rev. (Pa.) 127 105 
 
 Com. v. Ditzler, i Lane. Bar (Pa.) 147, 148 
 
 Com. v . Dorwart, 7 Lane. Bar (Pa.) 121 139 
 
 Com. v. Dove, 2 Va. Cas. 29 135 
 
 Com., Downs v., 92 Ky. 605 46 
 
 Com. v. English, 6 Bush (Ky.) 431 150 
 
 Com. v. English, 11 Phila. (Pa.) 439 in, 113
 
 XXX TABLE OF CASES. 
 
 PAGE 
 
 Com. f. Fehr, 2 Northampton Co. Rep. 275 114 
 
 Com., Foust v., 33 Pa. 338 7O 
 
 Com., Franklin v., 48 S. W. 986 127 
 
 Com. v. Freeman, 166 Pa. 332 68, 87 
 
 Com. v. Frescoln, n Lane. Law Rev. (Pa.) 161 138 
 
 Com. v. Frey, n Pa. C. C. Rep. 523 128 
 
 Com. v. Gee, 60 Mass. 174 103 
 
 Com v. Gleason, no Mass. 66 149 
 
 Com. Gordon v., 92 Pa. 216 119 
 
 Com. v. Gore, 3 Dana. (Ky.) 474 136 
 
 Com. v. Graddy, 4 Metcalf (Ky.) 223 59 
 
 Com. v. Gressly, 12 Lane. Bar. (Pa.) 52 148 
 Com.v. Green, 126 Pa. 531 no, in, 119 
 
 Com. v. Griscom, 36 Pitts. L. J. (Pa.) 332 114 
 
 Com. v. Hamilton, 15 Gray (Mass.) 480 149 
 
 Com., Harrison v., 123 Pa. 508 114. *54 
 
 Com., Haught v., 2 Va. Cas. 3 135 
 
 Com. Hausenfluck v., 85 Va. 702 147 
 
 Com. v. Hayden, 163 Mass. 453 78, 132 
 
 Com. v. Hill, ii Cush. (Mass.) 137 118, 119 
 
 Com., Hopkins v., 50 Pa. 9. 156 
 
 Com. v. Hughes, 11 Pa. C. C. Rep. 470 114 
 
 Com. v. Kurd, 177 Pa. 481 no 
 
 Com. v. Jadwin, 2 Law T. (N. S.) 13 in 
 
 Com., Jewell v., 22 Pa. 94 51 
 
 Com., Jillard v., 26 Pa. 169 138 
 
 Com. v. Keenan, 67 Pa. 203 148 
 
 Comx v. Kelcher, 3 Met. (Ky.) 485 152 
 
 Com., Kendall v., 19 S. W. 173 66 
 
 Con., v. Knapp, 9 Pick. (Mass.) 498 136 
 
 Com. v. Kulp, 17 Pa. C. C. Rep. 561 no, 119 
 
 Com. v. Leigh, 38 Leg. Int. (Pa.) 184 114 
 
 Com. v. Leisenring, 2 Pears. (Pa.) 466 45, 46 
 
 Com. v. Lenox, 3 Brews. (Pa.) 249 134 
 
 Com. v. Lippard, 6 S. & R, (Pa.) 395 67 
 
 Com.v. McComb, 157 Pa. 611 no, 119 
 Com., McCullough v., 67 Pa. 30 101, 106, in 
 Com., Mclntire v., 4 S. W. i 132, 143, 147 
 
 Com. v. Mead, 12 Gray (Mass.) 167 119 
 
 Com., Mesmer v., 26 Gratt. (Va.) 976 48 
 
 Com. v. Mjnor, 89 Ky. 555 142, 145 
 
 Com. v . Moister, 3 Pa. C. C. 539 in 
 
 Com., Moore v., 9 Leigh (Va.) 639 62 
 
 Com. v. Morton, 34 Leg. Int. (Pa.) 438 54 
 
 Com. v. New Bethlehem Borough, 15 Pa. Superior Ct. 158 114 
 
 Com. v. Noonan, 38 Leg. Int. (Pa.) 184 90
 
 TABLE OF CASES. XXXI 
 
 PAOB 
 
 Com., Oliver v., 95 Ky. 372 150 
 
 Com., Overshiner v., 2 B. Mon. (Ky.) 344 149 
 
 Com. v. Parker, 2 Pick. (Mass.) 550 50 
 
 Com., Patterson v., 86 Ky. 313 156 
 
 Com., Pearce v., 8 S. W. 893 156 
 
 Com., Pence v., 95 Ky. 618 157 
 
 Com. v. Pfaff, 5 Pa. Dist. Rep. 59 III 
 
 Com., Porterfield v., 91 Va. 801 124 
 
 Com. v. Price, 3 Pa. C C. Rep. 175 138, 146 
 
 Com., Price v., 21 Gratt. (Va.) 846 149 
 
 Com. v. Priestley, 10 Dist. Rep. (Pa.) 217 153 
 
 Com. v. Pritchett, 74 Ky. 277 78 
 
 Com. v. Reynolds, 2 Kulp (Pa.) 345 no 
 
 Com. v. Rich, 14 Gray (Mass.) 335 160 
 
 Com., Rich irdson v., 76 Va. 1007 140 
 
 Com. v. Ridgway, 2 Ash. ( Pa. ) 247 164 
 
 Com. v. Ripperdon, Litt. Sel. Cas. (Ky.) 194 148 
 
 Com., Robinson v., 88 Va. 900 48, 87 
 
 Com., Rolland v., 82 Pa. 306 62, 65, 66, 70, 73, 77, 85 
 
 Com. v. Rovnianck, 12 Pa. Superior Ct. 86 138 
 
 Com. v. Rowand, 82 Pa. 405 no, 112, 152 
 
 Com. v. Rudd, 3 Ky. Law. Rep. 328 78 
 
 Com. v. Ryan, 5 Mass. 90 81 
 
 Com. v. Salter, 2 Pears. (Pa.) 461 45, 46, 54, 66, 128, 129, 138, 156 
 
 Com. v. Sanborn, 116 Mass. 61 124 
 
 Com. v. Sargent, Thach. Cr. Cas. (Mass.) 116 148 
 
 Com. v . Schall, 6 York Leg. Rec. (Pa.) 24 in, 138, 151 
 
 Com. v. Sheppard, 20 Pa. Superior Ct. 417 in, 114 
 
 Com. v. Shew, 8 Dist. Rep. (Pa.) 484 68, 87 
 
 Com., Shouse v., 5 Pa. 83 148 
 
 Com. v. Shubel, 4 Pa. C. C. Rep. 12 in 
 
 Com. v. Shupp, 6 Kulp (Pa.) 430 ill 
 
 Com,, Simmons v., 89 Va. 156 156 
 
 Com. v. Simons, 6 Phila. (Pa.) 167 in, 114 
 
 Com. v. Skeggs, 66 Ky. 19 120 
 
 Com., Slagel v., 5 Ky. Law Rep. 545 72 
 
 Com. v. Smith, 10 Bush. (Ky.) 476 61, 87 
 
 Com. v. Smith, 9 Mass. 107 73, 81, 85 
 
 Com. v. Smith, 4 Pa. Superior Ct. i 54 
 
 Com. v. Smith, 27 S. W. 810 86 
 
 Com. v. Smyth, 11 Cush. (Mass.) 473 149 
 
 Com., Sparks v., 9 Pa. 354 150, 154 
 
 Com. v. Spattenhover, 8 Luz. Leg. Reg. 101 143 
 
 Com. v. Stegala, 8 Ky. Law Rep. 142 157 
 
 Com. v. Stone, 105 Mass. 469 134 
 
 Com v . Strother, i Va. Cas. 186 78
 
 XXX11 TABLE OF CASES. 
 
 PAGB 
 
 Com. v. Taylor, 12 Pa. C. C 326 114 
 
 Com., Thomas v., 2 Robinson (Va.) 795 118 
 
 Com., Thompson v., 20 Gratt. (Va.) 724 15 
 
 Com., Thompson v., 88 Va. 45 135 
 
 Com. v. Towles, 5 Leigh (Va.) 743 130 
 
 Com., Turns v., 47 Mass. 224 89 
 
 Com. v. Twitchell, i Brews. (Pa.) 551 120, 128 
 
 Com., Twitchell v., 7 Wall. (U. S.) 321 33 
 
 Com. v. Usner, 7 Lane. (Pa.) 57 151 
 
 Com. t>. Valsalka, 181 Pa. 17 66, 67 
 
 Com., Wadley v., 35 S. E. 452 143 
 
 Com. v. Walters, 6 Dana (Ky.) 290 148, 150 
 
 Com., Wells v., 15 Ky. Law Rep. 179 147 
 
 Com. v. Wetherold, 2 Clark 'Pa.) 476 in 
 
 Com. v. Whitaker, 25 Pa. C. C. Rep. 42 110 
 
 Com., White v., 29 Gratt. (Va.) 846 149 
 
 Com., Whitehead v. t 19 Gratt. (Va.) 640 66 
 
 Com. v. Wilson, 2 Chester Co. Rep. (Pa.) 164 no 
 
 Com. v. Wilson, 9 Pa. C. C. Rep. 24 13? 
 
 Com. v. Wood, 2 Cush. (Mass.) 149 46 
 
 Com. v. Woods, 10 Gray (Mass.) 477 132, 155 
 
 Com. v. Woodward, 157 Mass. 516 76 
 
 Com., Wortham v., 5 Randolph (Va.) 669 135 
 
 Com. v. Wright, 79 Ky. 22 67 
 
 Com., Yost v., 5 Ky. Law Rep. 935 152 
 
 Com., Ziegler v., 22 W. N. C. (Pa.) in 120 
 
 Com. v. Zillafrow, 207 Pa. 274 53, 58 
 
 Compton v. State, 23 So. 750 65 
 
 Compton, State v,, 13 W. Va. 852 15? 
 
 Congdon, State v. 14 R. I. 267 60, 63 
 
 Conner v. State, 25 Ga. 515 48, 59 
 
 Conner v. State, 4 Yerg. (Tenn.) 137 151 
 
 Conway, State v. 35 La. Ann. 350 58 
 
 Cook v. Territory, 4 Pac. 887 65, 68 
 
 Cooke, R. v., 8 Car. & P. 582 148, 152 
 
 Cooley, State v., 75 N. W. 729 46, 56 
 
 Coolidge, United States v., 25 Fed. Cas. 622 138, 146 
 
 Cooper v. State, 79 Ind. 206 149, 151 
 Copp, State v., 34 Kan. 522 45, 51, 147 
 
 Corbett, Territory v., 3 Mont 50 103 
 
 Cosier, Com. v., 8 Luz. Leg. Reg. (Pa.) 97 62, 73 
 Cotton, Huidekoper v., 3 Watts (Pa.) 56 116, 118, 119 
 
 Cotton v. State, 31 Miss. 504 84 
 
 Cotton v. State, 43 Tex. 169 143 
 
 Couch v. State, 63 Ala. 163 50, 57 
 
 Counselman v. Hitchcock, 142 U. S. 547 145
 
 TABLE OF CASES. XXX111 
 
 MMH 
 
 County Commissioners, In re, 7 Ohio N. P. 450 123 
 
 Courtney v. State, 5 Ind. App. 356 140 
 Cowan, State v., i Head (Term.) 260 148, 164, 165 
 
 Cox v. People, 80 N. Y. 500 86 
 
 Cox, State v., 6 Ired (N. C) 440 148 
 Craig, Com. v., 19 Pa. Superior Ct. 81 73, 78, 82 
 
 Crans, Com. v., 2 Clark (Pa.) 441 162, 165 
 
 Creighton, State v., i N. & McC (S. C) 256 148 
 
 Crilly, State v., 77 Pac. 701 156 
 
 Crimm v. Com., 119 Mass. 326 46 
 
 Crittenden, Ex Parte, 6 Fed. Cas. 822 127 
 
 Crocker v. State, Meigs (Tenn.) 127 116, 118 
 
 Cross v. State, 63 Ala. 40 51 
 
 Cross v. State, 78 Ala. 430 140 
 
 Crowley v. United States, 194 U. S. 461 73, 74 
 
 Cubine v. State, 73 S. W. 396 63 
 
 Cuitano, People t>., 15 Calif. 327 48 
 
 Cunningham, Com. v., 6 Gratt. (Va.) 695 62 
 
 Danforth v. State, 75 Ga. 614 156 
 
 Davidson v. Com., 5 Cen. Rep. 484 114 
 
 Davidson v. People, 90 111. 221 73 
 Davidson, State v., 2 Cold. (Tenn.) 184 151, 155, 156 
 
 Davidson, State v., 12 Vt. 300 151 
 
 Davis v. Com., 89 Va. 132 48 
 
 Davis v. State, 46 Ala. 80 89 
 Davis, State v., 41 Iowa 311 65, 119, 120 
 
 Davis, State v., 14 La. Ann. 678 88 
 
 Davis, State v., 22 Minn. 423 70 
 
 Davis, State v., 126 N. C. 1007 54 
 
 Dtavis, State v., 12 R. I. 492 63 
 
 Dawson v. People, 25 N. Y. 399 157 
 
 Dayton, State v. 23 N. J. Law 49 143 
 
 De Hart, State v., 109 La. 570 150 
 
 Deitz v. State, 123 Ind. 85 149 
 
 Delaware, Neal v., 103 U. S. 370 67 
 
 Delaware River Road, 5 Dist. Rep. (Pa.) 694 65, 77 
 Delemater, Com. v., 2 Dist. Rep. (Pa.) 562 53, 66, no 
 
 Denby's Case, i Leach C. C. 514 142, 143 
 
 Denning v. State, 22 Ark. 131 84 
 
 Denton, State v., 14 Ark. 343 135 
 
 Denton v. State, 155 Ind. 307 149 
 
 Derrick, State v., 44 S. C. 344 49 
 
 DteSerrant, State v., 33 La. Ann. 979 115 
 
 Deshazo v. State, 23 Tenn. 275 104 
 
 Dickinson, Rex v., Russ. & Ry. Crown Cases 401 139 
 
 Dietrich, Com. v., 7 Pa. Superior Ct. 515 45 
 3
 
 XXXIV TABLE OF CASES. 
 
 PAOB 
 
 Diffenbaugh, Com. v., 3 Pa. C. C. Rep. 299 148 
 
 Dillard, State v., 35 La. Ann. 1049 88 
 
 District Attorney U. S., In re, 7 Fed. Cas. 745 128, 129 
 
 District Court, People v., 29 Colo. 83 76 
 
 District Court, State v., 55 Pac. 916 140 
 
 Dittus, Com. v., 17 Lane. Law Rev. (Pa.) 127 105 
 
 Dtitzler, Com. v., i Lane. Bar (Pa.) I47 148 
 
 Dixon v. State, 29 Ark. 165 87 
 
 Dixon v. State, 3 Iowa 416 66, 68, 69 
 
 Dixon v. State, 20 So. 839 64, 67 
 
 Doan's Case, 5 Pa. Dist. Rep. 211 162 
 
 Dodd, King v., i Leach C. C. 155 144 
 
 Doebler v. State, 31 Tenn. 473 104 
 
 Doherty, State v., 60 Me. 504 89 
 
 Dolan v. People, 64 N. Y. 485 58 
 
 Donald v. State, 31 Fla. 255 147 
 
 Donaldson, State v., 43 Kan. 431 67 
 
 Dorman v. State, 56 Ind. 454 50 
 
 Dorwart, Com. v., 7 Lane. Bar. (Pa.) 121 139 
 
 Doss v. State, 28 Tex. App. 506 139 
 
 Dove, Com. v., 2 Va. Cas. 29 135 
 
 Dowling v. State, 5 Smedes & M. (Miss.) 664 50, 52, 60 
 
 Downs v. Com., 92 Ky. 605 46 
 
 Downs v. State, 78 Md. 128 68 
 
 Doyle v. State, 17 Ohio 222 56 
 
 Drake and Cochren's Case, 6 Gratt. (Va.) 665 157 
 
 DVake v. State, 25 Tex. App. 293 84, 160 
 
 Drogmond, State v., 55 Mo. 87 83 
 
 Duke v. State, 20 Ohio St. 225 137 
 
 Dukes v. State, 14 Fla. 499 50 
 
 Dulany, United States v., 25 Fed. Cas. 23 135 
 
 Duncan, State, v., 28 N. C. 98 66 
 
 Duncan, State v., 7 Yerg. (Tenn.) 271 61, 87 
 
 Durham Fertilizer Co., State v., in N. C. 658 63 
 
 Durr v. State, 53 MHss. 425 129 
 
 Durrah v. State, 44 Miss. 789 58, 86 
 
 Dusenberry, State v., 112 Mo. 277 89 
 
 Dutell v. State, 4 G. Greene (Iowa) 125 58 
 
 Dye v. State, 130 Ind. 87 115 
 
 Dyer v. State, 79 Tenn. 509 87 
 
 Eagan, United States v., 30 Fed. Rep. 608 56, 77,. 86 
 
 Earnest, People v. 45 Calif. 29 89 
 
 Easter, State v., 30 Ohio St. 542 80 
 
 Easton, State v., 113 Iowa 516 138 
 
 Edens, State v., 85 N. C. 522 62 
 
 Edgerton, State v., 69 N. W. 280 73, 124, 126
 
 TABLE OF CASES. XXXV 
 
 PtOB 
 
 Edgcrton, United States r., 80 Fed. Rep. 374 128, 139, 145 
 
 Edmonds v. State, 34 Ark. 720 66 
 
 Edson v. State, 32 So. 308 65 
 
 Elkins, State v., Meigs (Tenn.) 109 151 
 
 Elliott, State v., 98 Mo. 150. 151 
 
 Elliott, United States v., 25 Fed. Cas. 1003 148 
 
 Ellis, In re, 8 Fed. Cas. 548 84, 166 
 
 Ellis v. State, 92 Tenn. 85 87 
 
 Elson, State v., 45 Ohio St 648 74 
 
 Empson v. People, 78 111. 248 161 
 
 Engleman v. State, 2 Cart. (Ind.) 91 157 
 
 English, Com. v., 6 Bush. (Ky.) 431 150 
 
 English, Com. v., n Phila. (Pa.) 439 in, 113 
 
 English v. State, 31 Fla. 340 147 
 
 English, State v., i Murphy (N. C.) 435 136 
 
 Estes, State v., 71 Tenn. 168 104 
 
 Ex Parte Bain, 121 U. S. i 154, 155 
 
 Ex Parte Crittenden, 6 Fed Cas. 822 127 
 
 Ex Parte Farley, 40 Fed. Rep. 66 89 
 
 Ex Parte Hammond, 91 Calif. 545 88 
 
 Ex Parte Job, 30 Pac. 699 152 
 
 Ex parte McCoy, 64 Ala. 201 67 
 
 Ex Parte Moan, 65 Calif. 216 115 
 
 Ex Parte Ogle, 61 S. W. 122 46 
 
 Ex Parte Reynolds, 34 S. W. 120 46 
 
 Ex Parte Schmidt, 71 Calif. 212 120 
 
 Ex Parte Sontag, 64 Calif. 525 119, 121 
 
 Ex Parte Wildman, 29 Fed. Cas. 1232 33 
 
 Ex Parte Wilson, 114 U. S. 417 33, 115 
 
 Farley, Ex Parte, 40 Fed. Rep. 66 89 
 Farrington, United States v., 5 Fed. Rep. 343 119, 120, 155 
 Fasset, State v., 16 Conn. 457 103, 118, 137, 143 
 
 Fee, State v., 19 Wis. 562 46 
 
 Fehr, Com. v., 2 Northampton Co. Rep. (Pa.) 275 114 
 
 Fellows, State v., 2 Hayw. (N. C.) 340 143, 145 
 
 Felter, State v., 25 Iowa 67 73 
 
 Penalty v. State, 12 Ark. 630 85, 87 
 
 Fertig, State v., 98 Iowa 139 139 
 
 Fieldhouse, Rex v., i Cowper 325 147 
 
 Fields v. State, 25 So. 726 150 
 Findley v. People, I Manning (Mich.) 234 51, 52, 161 
 Finley v. State, 61 Ala. 201 50, 56, 83, 
 
 Finnegan v. State, 57 Ga. 427 89 
 
 Fisher v. State, 93 Ga. 309 77 
 
 Fisher v. United States, 31 Pac. 195 86 
 
 Fitch, King v., Cro. Chas. 414 26
 
 XXXVI TABLE OF CASES. 
 
 PAGB 
 
 Fitzgerald v. State, 4 Wis. 395 147 
 
 Fitzhugh, State v., 2 Ore. 227 65 
 
 Fitzpatrick v. People, 98 111. 269 156 
 
 Fitzpatrick, People v., 30 Hun. (N. Y.) 493 66 
 
 Fleming, State v., 66 Me. 142 48 
 
 Flint, State v., 52 La. Ann. 62 66 
 
 Flores, State v., 33 Tex. 444 148 
 
 Floyd v. Barker, 12 Co. 23 167 
 
 Folke, State v., 2 La. Ann. 744 93, 149 
 
 Ford, King v., Yelv. 99 148, 150 
 
 Foster v. State, 31 Miss. 421 93 
 
 Fotheringham v. Adams Express Co., 34 Fed. Rep. 646 119 
 
 Foust v. Com., 33 Pa. 338 70 
 
 Fout v. State, 3 Hayw. (Tenn.) 98 134 
 
 Fowler v. State, 100 Ala. 96 62 
 Fowler, State v., 52 Iowa 103 51, 85, 142 
 
 Fox, State v., 9 N. J. Law 244 91 
 
 Franklin v. Com., 48 S. W. 986 127 
 
 Franklin v. State, 28 Ala. 9 157 
 
 Freel v. State, 21 Ark. 212 66, 161 
 
 Freeman, Com. v., 166 Pa. 332 68, 87 
 
 Freeman, State v., 13 N. H. 488 149 
 
 Frescoln, Com. v., u Lane. Law Rev. (Pa.) 161 138 
 
 Frey, Com. v., n Pa. C C. Rep. 523 128 
 
 Friar v. State, 3 How. (Miss.) 422 91 
 
 Frisbie v. United States, 157 U. S. 160 148, 151 
 
 Frizell, State v., in N. C. 722 146 
 Froiseth, State v., 16 Minn. 313 51, 52, 124, 144, 145 
 
 Fuers, United States v., 25 Fed. Cas. 1223 no 
 Furco, State v., 51 La. Ann. 1082 70, 92, 124 
 
 Gabe v. State, i Eng. (Ark.) 540 136 
 
 Gainus, State v., 86 N. C. 632 156 
 Gale, United States -v., 109 U. S. 65 63, 65, 69, 86 
 
 Gallagher, People v., 55 Calif. 462 58 
 
 Gannon, In re, 69 Calif. 541 88, 160 
 
 Gardiner, In re, 64 N. Y. Sup. 760 132 
 
 Gardiner v. People, 3 Scam. (111.) 83 149 
 
 Gardner v. People, 20 111. 430 156 
 
 Gardner -v. State, 4 Ind. 632 152 
 
 Gardner, State v., 88 Minn. 130 145 
 
 Garhart, State v., 35 Iowa 315 50, 51 
 
 Garret v. State, 17 Tenn. 389 104 
 
 Garrett, Kirk v., 84 Md. 383 up 
 
 Gatewood, People v., 20 Calif. 146 147 
 
 Gay -v. State, 49 S. W. 612 162 
 
 Gee, Com. v., 60 Mass. 174 ; 103
 
 TABLE OF CASES. XXXV11 
 
 MM 
 
 Gciger, People v., 49 Calif. 643 69 
 
 Geiger v. State, 25 Ohio Cir. Ct. Rep. 742 149 
 
 Germolgez v. State, 99 Ala. 216 85 
 
 Gerrish v. State, 53 Ala. 476 152 
 
 Gibbs, State v., 39 Iowa 318 64, 69, 119 
 
 Gibbs v. State, 45 N. J. Law 379 65 
 
 Gillick, State v., 7 Iowa 287 76, 79 
 
 Gillick, State v., 10 Iowa 98 68 
 
 Gilman v. State, 20 Tenn. (i Humph.) 59 137, 138 
 
 Gilmore v. People, 87 111. App. 128 119 
 
 Gilmore, State v., 9 W. Va. 641 156 
 
 Gitchell v. People, 146 111. 175 119 
 
 Gladden v. State, 12 Fla. 562 46, 160 
 
 Glascow, State v., 59 Md. 209 86 
 
 Gleason, Com. v., no Mass. 66 149 
 
 Glen, People v., 173 N. Y. 395 70, 127 
 
 Glenn v. State, 31 Tenn. 19 104 
 
 Glover, State v., 3 G. Greene (Iowa) 249 156 
 
 Goldenson, People v., 76 Calif. 328 68, 103 
 
 Gonzales, State v., 26 Tex. 197 127, 128, 134 
 
 Goodman v. People, 90 111. App. 533 149 
 
 Gordon v. Com., 92 Pa. 216 119 
 
 Gordon, Virginia v., 28 Fed. Cas. 1224 119 
 
 Gore, Com. v., 3 Dana. (Ky.) 474 136 
 
 Goss, State v., 74 Mo. 592 136 
 
 Gouge, State v., 80 Tenn. 132 91 
 
 Gowen, State v., 7 Eng. (Ark.) 62 157 
 
 Graddy, Com. v., 4 Metcalf (Ky.) 223 59 
 
 Grady, State v., 84 Mo. 220 120, 132 
 
 Graff, State v., 97 Iowa 568 89 
 
 Grand Jury, Bucks County, 24 Pa. C. C. Rep. 162 no 
 
 Grand Jury, Challenge to, 3 N. J. Law Jour. 153 48, 49, 58, 70, 71 
 
 Grand Jury, Charge to, 5 Dist. Rep. (Pa.) 130 no 
 
 Grand Jury, Chief Justice Chase's Charge to, 30 Fed. Cas. 980 102 
 
 Grand Jury, Chief Justice Shaw's Charge to, 8 Am. Jurist 216 43, 105, 160 
 
 Grand Jury, Chief Justice Taney's Charge to, 30 Fed. Cas. 998 102 
 
 Grand Jury, In re, 62 Fed. Rep. 840 105 
 Grand Jury, Judge Addison's Charges to, Add. App. (Pa.) 
 
 I, 101, 105, 123, 131, 141, 160 
 
 Grand Jury, Judge Stowe's Charge to, 3 Pitts. Rep. (Pa.) 179 158 
 Grand Jury, Mr. Justice Field's Charge to, 30 Fed. Cas. 992 
 
 101, 103, 105, 108, 127, 128, 130, 162 
 
 Grand Jury, Presentment of, i R. M. Charlton (Ga.) 149 159 
 
 Grand Jury v. Public Press, 4 Brews. (Pa.) 313 116 
 
 Granger v. Warrington, 8 111. 299 120 
 
 Grant v. State, 2 Tex. App. 163 69
 
 XXXV111 TABLE OF CASES. 
 
 PAGB 
 
 Granville, State v., 34 La. Ann. 1088 149 
 
 Gray, Allen v., n Conn. 95 167 
 
 Green, Com. v., 126 Pa. 531 no, in, 119 
 
 Green, People v., i Utah n 103 
 
 Green, State v., 66 Mo. 631 45 
 
 Green, State v., in Mio. 585 152 
 
 Green v. State, 28 Miss. 687 87 
 
 Green v. State, 4 Pickle (Tenn.) 614 149 
 
 Green v. State, i Tex. App. 82 65, 66, 68 
 
 Greene, United States v., 113 Fed. Rep. 683 55, 67 
 
 Gressly, Com. v. 12 Lane. Bar (Pa.) 52 148 
 
 Grier v. Homestead Borough, 6 Pa, Superior Ct. 542 145 
 
 Griffice, State v., 74 N. C 316 73 
 
 Griffin, People v. 2 Barb. (N. Y.) 427 87 
 
 Griffin, State v., 38 La. Ann. 502 87 
 
 Griffith v. Slinkard, 44 N. E. 1001 167 
 
 Grimes, State v., 50 Minn. 123 161 
 
 Griscom, Com. v., 36 Pitts. L. J. (Pa.) 332 114 
 
 Groome, State v., 10 Iowa 308 149 
 
 Grosbois, In ic, 109 Calif. 445 130 
 
 Gross v. State, 2 Ind. 329 76 
 
 Groves v. State, 73 Ga. 205 130 
 
 Guillory, State v., 44 La. Ann. 317 64 
 
 Gunkle v. State, 6 Baxt. (Tenn.) 625 150 
 
 Gurlagh, State v., 76 Iowa 141 50 
 
 Gut, State v., 13 Minn. 341 . 71 
 
 Hall's Case, 3 Gratt. (Va.) 593 148 
 
 Hall v. State, 32 So. 750 119, 127, 128, 143 
 
 Hall, Watson v., 46 Conn. 204 12 
 
 Hamblett v. Hamblett, 6 N. H. 333 145 
 
 Hamilton, Com. v., 15 Gray (Mass.) 480 149 
 
 Hamilton, State v., 13 Nev. 386 120 
 
 Hamlin, State v., 47 Conn. 95 73, 74, 76, 85, 103, 119 
 
 Hammond, Ex Parte, 91 Calif. 545 88 
 
 Hammond, United States v., 26 Fed. Cas. 99 61, 63, 69, 73, 87 
 
 Hansted, People v., 135 Calif. 149 80 
 
 Harding v. State, 22 Ark. 210 46 
 
 Harding, Territory v., 6 Mont. 323 64 
 
 Haidy v. State, i Tex. App. 556 156 
 
 Harland v. Territory, 13 Pac. 453 63 
 
 Harless v. United States, I Morris (Iowa) 169 81 
 
 Harmon, People v., 69 N. Y. Sup. 511 142 
 
 Harper v. State, 42 Ind. 405 160 
 
 Harrall v. State, 26 Ala. 53 134 
 
 Harrell v. State, 22 Tex. App. 692 46 
 
 Harriman v. State, 2 G. Greene (Iowa) 270 135
 
 TABLE OF CASES. XXXIX 
 
 PAOB 
 
 Harris, In re, 4 Utah 5 134 
 
 Harris, State v., 38 Iowa 242 73 
 
 Harris, State v., 7 N. J. Law 361 9 
 
 Harris, State v., 91 N. C. 656 152 
 
 Harris, State v., 97 N. W. 1093 78 
 
 Harris v. State, 13 So. 15 5* 
 
 Harrison v. Com., 123 Pa. 508 114. '54 
 
 Harrison, State v., 19 Ark. 565 135 
 
 Harrison v. State, 44 Tenn. 195 104, no 
 
 Hart, State v., 29 Iowa 268 86 
 
 Hart, State v., 67 Iowa 142 162 
 
 Hart, State v., 15 Tex. App. 202 66, 68 
 
 Hart, Territory v., 7 Mjont. 489 119 
 
 Hart, Territory v., 14 Pac. 7618 82, 85 
 
 Hartley, State v., 40 Pac. 372 147 
 
 Hartranft's Appeal, 85 Pa. 433 no, 143 
 
 Hatfield, Burnham v., 5 Blackf. (Ind.) 21 119 
 
 Haught v. Com., 2 Va. Cas. 3 135 
 
 Hausenfluck v. Com., 85 Va. 702 147 
 
 Hawkins, State v., 10 Ark. 71 56 
 
 Hawks, State r., 56 Minn. 129 144 
 
 Hawles, Sir John, 4 State Tr. 183 105 
 
 Hayden, Com. v., 163 Mass. 453 78, 132 
 
 Hayes, People v., 59 N. Y. Sup. 761 144 
 
 Haynes, State v. 54 Iowa 109 60, 64 
 
 Haywood, State v., 73 N. C. 437 58 
 
 Haywood, State v., 94 N. C 847 87 
 
 Hea.ock v. State, 42 Ind. 393 134, 156 
 
 Head v. State, 44 Miss. 731 64, 86 
 
 Heard v. Pierce, 8 Cush. (Mass.) 338 120, 134 
 
 Heath v. State, 101 Ind. 512 156 
 
 Heaton, State v., 56 Pac. 843 129 
 
 Heaton, State v., 23 W. Va. 773 136 
 
 Heidrick, Rahlfing v., 4 Phila. (Pa.) 3 145 
 
 Helriggle, United States v., 26 Fed. Cas. 258 135 
 
 Henderson, State v., 29 W. Va. 147 62 
 
 Hensley, State v., 7 Blackf. (Ind.) 324 64 
 Herndon, State -v., 5 Blackf. (Ind.) 75 6a, 66, 68, 73 
 
 Hess v. State, 73 Ind. 537 48 
 
 Hester v. State, 103 Ala. 83 52 
 Hidden, People v., 32 Calif. 445 69, 83, 84, 87 
 
 Hill, Com. v., ii Cush. (Mass.) 137 118, 119 
 
 Hill, State v., 35 S. E. 831 148, 149 
 
 Hill, United States v., 26 Fed. Cas. 315 131 
 
 Hinckley, State v., 4 Minn. 345 71 
 
 Hinkle, State v., 6 Iowa 380 69, 76, 78
 
 xl TABLE OF CASES. 
 
 PAGB 
 
 Hinshaw v. State, 47 N. E. 157 120 
 
 Hitchcock, Counselman v., 142 U. S. 547 145 
 
 Kite v. State, 9 Yerg. (Tenn.) 198 134 
 
 Hodges, Reg. v., 8 Car. & P. 195 148 
 
 Hoffpauer, State v., 21 La. Ann. 609 68 
 
 Hogan, State v., 31 Mo. 342 151 
 
 Hogan v. State, 30 Wis. 428 156 
 
 Holcomb, State v., 86 Mo. 371 77 
 
 Holcombe v. State, 31 Ark. 427 156 
 
 Hollinsberry, United States v., 26 Fed. Cas. 345 135 
 
 Holloway, Reg. v., 9 Car. & P. 43 161 
 
 Homestead Borough, Grier v., 6 Pa. Superior Ct. 542 145 
 
 Hooghkerk, People v., 96 N. Y. 149 66 
 
 Hooker v. State, 56 Atl. 390 119 
 
 Hope v. People, 83 N. Y. 418 143 
 
 Hopkins v. Com., 50 Pa. 9 156 
 
 Horton v. State, 47 Ala. 58 87 
 
 Horton, State v., 63 N. C. 595 119, 147 
 
 Howard, State v., 10 Iowa 101 66, 69 
 
 Hoyt, State v., 13 Minn. 132 71 
 
 Hubbard v. State, 72 Ala. 164 136 
 
 Hudson v. State, i Blackf. (Ind.) 317 70, 85 
 
 Hughes, Com. v., n Pa. C. C. Rep. 470 114 
 
 Hughes, R. v., i Car. & K. 519 118 
 Hughes, State v., i Ala. 655 72, 82, 136 
 
 Hughes v. State, 54 Ind. 95 54 
 Huidekoper v. Cotton, 3 Watts (Pa.) 56 116, 118, 119 
 Hulbut, People v., 4 Denio (N. Y.) 133 120, 146, 152 
 
 Huling v. State, 17 Ohio St. 583 65, 68 
 
 Humpeler v. People, 92 111. 400 150 
 
 Humphreys, Bartlett v., Hardin (Ky.) 513 136 
 
 Humphreys, Reg. v., Car. & M. 601 152 
 
 Hunt, Burdick v., 43 Ind. 381 1 19 
 
 Hunter v. Mathis, 40 Ind. 356 167 
 
 Hunter, People v., 54 Calif. 65 147 
 
 Hunter v. Randall, 69 Me. 468 119 
 
 Hunter, United States v., 15 Fed. Rep. 712 133, 143 
 
 Hurd, Com. v., 177 Pa. 481 no 
 
 Hurt, State v., 7 Mb. 321 136 
 
 Hurtado v. California, no U. S. 516 33, 39 
 
 Hyler, People v., 2 Parker Cr. Rep. (N. Y.) 570 105 
 
 Imlay v. Rogers, 2 Halst. (N. J.) 347 119 
 
 Ingalls, State v., 17 Iowa 8 64 
 
 Ingersoll, Territory v., 3 Mont. 454 71 
 
 In re Annexation to Borough of Plymouth, 167 Pa. 612 76 
 
 In re Archer, 96 N. W. 442 120, 133
 
 TABLE OF CASES. xli 
 
 PAOB 
 
 In re Baldwin, 2 Tyler (Vt) 473 84 
 
 In re Bridge Appropriations, 9 Kulp (Pa.) 427 127 
 
 In re Bridge in Nescopeck, 3 Luz. Leg. Reg. (Pa.) 196 66, 77 
 
 In re Bridge in Nescopeck, 3 Luz. Leg. Reg. (Pa.) 410 77 
 In re Citizen's Association, 8 Phila. (Pa.) 478 124, 135, 147 
 
 In re County Commissioners, 7 Ohio N. P. 450 123 
 
 In re District Attorney U. S., 7 Fed. Cas. 745 128, 129 
 
 In re Ellis, 8 Fed. Cas. 548 84, 166 
 
 In re Gannon, 69 Calif. 541 88, 160 
 
 In re Gardiner, 64 N. Y. Sup. 760 132 
 
 In re Grand Jury, 62 Fed. Rep. 840 105 
 
 In re Grosbois, 109 Calif. 445 130 
 
 In re Harris, 4 Utah 5 134 
 In re Lester, 77 Ga. 143 88, 104, 138 
 
 In re Miller, 17 Fed. Cas. 295 162 
 
 In re Moragne, 53 Pac. 3 153 
 In re Morse, 87 N. Y. Sup. 721. 103, 133, 140, 150 
 
 In re Rogers, 129 Calif. 468 133 
 
 In re Summerhayes, 70 Fed. Rep. 769 165 
 
 In re Tillery, 43 Kan. 188 90 
 
 In re Tucker, 8 Mass. 286 77 
 
 In re Wadlin, n Mass. 142 51 
 In re Wilson, 140 U. S. 575 46, 47, 56 
 
 Insurance Co. v. Adams, no Pa. 553 66 
 
 Ivey, State v., 100 N. C. 539 132 
 
 Jackson v. State, 102 Ala. 167 88 
 
 Jackson v. State, 64 Ga. 344 86 
 
 Jackson v. State, 76 Ga. 551 73 
 
 Jackson v. State, 4 Kan. 150 134 
 
 Jackson v. State, n Tex. 261 62 
 
 Jackson v. State, 25 Tex. App. 314 160 
 
 Jackson, State v., 21 La. Ann. 574 33 
 
 Jackson v. Wood, 2 Cow. (N. Y.) 819 33 
 Jacobs, State v. t 6 Tex. 99 50, 68, 84, 89 
 
 Jadwin, Com. v., 2 Law. T. n. s. (Pa.) 13 ill 
 
 James v. Stale, 41 Ark. 451 157 
 
 Jamesson, United States v., 26 Fed. Cas. 585 135 
 
 Jeffcoat, State v., 26 S. C. 114 68 
 
 Jenkins v. State, 35 Fla. 737 50, 120 
 
 Jenkins v. State, 30 Miss. 408 156 
 
 Jetton v. State, 19 Tenn. 192 84, 137 
 
 Jewell v. Com., 22 Pa. 94 51 
 Jewett, People v., 3 Wend. (N. Y.) 314 66, 68, 73, ?6 
 
 Jillard v. Com., 26 Pa. 169 138 
 
 Job, Ex Parte, 30 Pac. 699 152 
 
 Johnson, Railway Co. v., 55 Kan. 344 145
 
 xlii TABLE OF CASES. 
 
 PAQB 
 
 Johnson v. State, 24 Fla. 162 156 
 
 Johnson v. State, 62 Ga. 179 87 
 
 Johnson v. State, 23 Ind. 32 149 
 
 Johnson v. State, 33 Miss. 363 58, 68 
 
 Johnson, State v., 93 Mo. 73 152 
 
 Johnstone v. Sutton, i Term. Rep. 513-14 167 
 
 Joiner, State v., 19 Mo. 224 136 
 
 Jolly, State v., 7 Iowa 15 157 
 
 Jones, State v., 8 Rob. (La.) 616 61 
 
 Jones, State v., 42 Pac. 392 156 
 
 Jones v. State, 18 Fla. 889 50 
 
 Jones v. State, 2 Blackf. (Ind.) 475 76, 82, 85 
 
 Jones v. State, n Ind 357 152 
 
 Jones v. Turpin, 6 Heisk. (Tenn.) 181 119 
 Jones, United States v., 31 Fed. Rep. 725 69, 73, 76, 80, 86 
 
 Jones, United States v., 69 Fed. Rep. 973 83, 143 
 
 Joyner v. State, 78 Ala. 448 134, 138 
 
 Justices, People v., 20 Johns. (N. Y.) 310 48 
 
 Justus, State v., n Ore. 178 139 
 
 Kalloch v. Superior Court, 56 Calif. 229 33 
 
 Keating, State v., 85 Md. 188 51 
 
 Keech v. State, 15 Fla. 591 46, 50 
 
 Keenan, Com. v., 67 Pa. 203 148 
 
 Keffer, Penna. v., Add. (Pa.) 290 166 
 
 Keithler v. State, 10 Smedes & M. (Mass.) 192 134 
 Keitler v. State, 4 G. Greene (Iowa) 291 70, 71, 83, 84 
 
 Kelcher, Com. v., 3 Mete. (Ky.) 485 152 
 
 Kelly, People v., 21 How. Pr. Rep. (N. Y.) 54 120, 133 
 
 Kelly v. People, 39 111. 157 156 
 
 Kelly v. People, 132 111. 363 156 
 
 Kemp v. State, n Tex. App. 174 71 
 
 Kendall v. Com., 19 S. W. 173 66 
 
 Keyes, State v., 8 Vt. 57 33 
 
 Kilcrease, State v., 6 S. C. 444 137 
 
 Kilgore v. State, 74 Ala. i 50 
 Kilpatrick, United States v., 16 Fed. Rep. 765 120, 142, 165 
 
 Kimball, State v., 29 Iowa 267 140 
 
 King, People v., 28 Calif. 265 144 
 
 King, People v., 2 Caines (N. Y.) 98 45, 46 
 
 King, State v., 24 Pac. 265 44 
 
 King v. Baker, Rowe's Rep. of Interesting Cases 603 166 
 
 King v. Dodd, i Leach C. C. 155 144 
 
 King v. Fitch, Cro. Chas. 414 26 
 
 King v. Ford, Yelv. 99 148, 150 
 
 King v. Lukens, i Dall. (Pa.) 5 135 
 
 King v. Marsh, i N. & P. 187 45
 
 TABLE OF CASES. 
 
 PAOB 
 
 King v. State, 5 How. (Miss.) 730 136, 137, 138 
 
 King v. Windham, 2 Keblc 180 164 
 
 Kirk v. Garrctt, 84 Md. 383 "9 
 
 Kirk v. State, 13 Smedes & M. (Miss.) 406 135 
 
 Kitrol v. State, 9 Fla. 9. 72 
 
 Klemmer v. Railroad Co., 163 Pa. 521 66 
 
 Knapp, Com. v., 9 Pick. (Mass.) 498 136 
 
 Koch v. State, 32 Ohio St. 353 78 
 
 Kouhns, State v., 103 Iowa 720 68, 81 
 
 Kovolosky, State v., 92 Iowa 498 128 
 
 Krause, State v., I Ohio N. P. 91 58 
 
 Krider, State v., 78 N. C 481 146 
 
 Kulp, Com. v., 17 Pa. C. C. Rep. 561 no, 119 
 
 Lacey v. State, 31 Tex. Cr. Rep. 78 73, 85 
 
 Lamon, State v., 10 N. C. 175 87 
 
 Landis, People v., 139 Calif. 426 80 
 
 Lanier, State v., 90 N. C. 714 144 
 
 Larkin, State v., n Nev. 314 85 
 
 Lascelles v. State, 90 Ga. 347 80 
 
 Lauder, People v., 82 Mich. 109 143, 144 
 
 Lauer, State v., 41 Neb. 226 49 
 
 Laurent v. State, I Kan. 313 154, 156 
 
 Lawless v. State, 4 Lea (Tenn.) 173 155 
 
 Lawrence, United States v., 26 Fed. Cas. 886 103 
 
 Laws, United States v., 26 Fed. Cas. 892 151 
 
 Leathers v. State, 26 Miss. 73 46 
 Lee, People v., 2 Utah 441 84, 154, 156 
 
 Lee, State v., 87 Tenn. 114 104 
 
 Lee v. State, 69 Ga. 705 77, 80 
 
 Lee v. State, 45 Miss. 114 85, 86 
 
 Leigh, Com. v., 38 Leg. Int. (Pa.) 184 114 
 
 Leisenring, Com. v. t 2 Pears. (Pa.) 466 45, 46 
 
 Lem Deo, People v., 132 Calif. 199 140 
 
 Lennard v. State, 30 S. E. 780 145 
 
 Lenox, Com. v., 3 Brews. (Pa.) 249 134 
 
 Leonard, People v. t 106 Calif. 302 84, 160 
 Lester, In re, 77 Ga. 143 88, 104. 138 
 
 Levally, United States v., 36 Fed. Rep. 687 148, 151 
 
 Levy v. State, 6 Ind. 281 152 
 
 Levy v. Wilson, 69 Calif. 105 50, 58 
 
 Lewis, State v., 38 La. Ann. 680 120, 149 
 
 Lewis, State v., 87 Tenn. 119 104 
 
 Lewis' Trial, 7 How. St. Tr. 249 83 
 
 Lienberger v. State, 21 S. W. 603 64 
 
 Lightbody, State v., 38 Me. 200 48 
 
 Lightfoot, State v., 78 N. W. 41 150
 
 xliv TABLE OF CASES. 
 
 PAGH 
 
 Ligon, State v., 7 Port. (Ala.) 167 60 
 
 Liles, State v., 77 N. C. 496 62 
 
 Lindenborn, People v., 52 N. Y. Sup. 101 105 
 
 Lindsay v. State, 24 Ohio Cir. Ct. Rep. I 144 
 
 Linehan v. State, 21 So. 497 65 
 
 Link, Beam v., 27 Mo. 261 120 
 
 Lippard, Com. v., 6 S. & R. (Pa.) 395 67 
 Lloyd and Carpenter's Case, 3 Clark (Pa.) 188 I, 44, 106, in, 158 
 
 Lloyd, United States v., 26 Fed. Cas. 986 135 
 
 Lockett, State v., 3 Heisk. (Tenn.) 274 134 
 
 Loeb v. State, 75 Ga. 258 72 
 
 Logan, State v., 104 La. 254 150 
 Logan, State v., I Nev. 509 119, 143, 146 
 
 Logan v. State, 50 Miss. 269 69 
 
 Long v. State, 103 Ala. 55 67 
 
 Long v. State, 46 Ind. 582 160 
 
 Lott v. State, 18 Tex. App. 627 46 
 
 Love, State v. 4 Humph. (Tenn.) 255 no, 132 
 
 Low's Case, 4 Greenl. (Me.) 439 119, 147 
 
 Lucy v. State, 8 Mo. 134 136 
 
 Lukens, King v., i Dall. (Pa.) 5 135 
 Lung's Case, i Conn. 428 90, 103, 128, 147 
 
 McAvoy, United States v., 26 Fed Cas. 1044 127, 134 
 
 McBroom, State v., 127 N. C. 528 150 
 
 McCann, State v., I Meigs (Tenn.) 91 135 
 
 McClary v. State, 75 Ind. 260 68, 86 
 
 MfcComb, Com. v., 157 Pa. 611 no, 119 
 
 McCourtney, State v., 6 Mo. 649 136 
 
 McCoy, Ex Parte, 64 Ala. 201 67 
 
 McCuller v. State, 49 Ala. 39 156 
 McCullough v. Com., 67 Pa. 30 101, 106, in 
 
 McElhanon v . People, 92 111. 369 69 
 
 McGregg v. State, 4 Blackf. (Ind.) 101 134 
 
 McGuffie v. State, 17 Ga. 497 148, 149 
 
 McGuire v. People, 2 Parker Cr. Rep. (N. Y.) 148 48 
 Mclntire v. Com., 4 S. W. i 132, 143, 147 
 
 McKay, People v., 18 Johns. (N. Y.) 212 48 
 
 McLellan v. Richardson, 13 Me. 82 120 
 
 McMahon, United States v., 26 Fed. Cas. 1131 64 
 
 McNamara, State v., 3 Nev. 70 49, 58 
 
 McNeill, State v., 93 N. C. 552 60, 147 
 
 McNinch, State v., 12 S. C. 89 80, 128. 
 
 McPherson, State v., 87 N. W. 421 120 
 
 McQuillen v. State, 8 Smedes & M. (Miss.) 587 87 
 
 McTigue v. State, 63 Tenn. 313 73 
 
 McWaters v. State, 10 Mo. 167 136
 
 TABLE OF CASES. 
 
 PAOI 
 
 Mackey r. People, 2 Colo. 13 161 
 
 Mackin v. United States, 117 U. S. 328 33 
 
 Madden, United States v., 36 Fed. Cas. 1138 131 
 
 Maddox, State v., \ Lea (Tcnn.) 671 81 
 
 Magrath, State v., 44 N. J. Law 227 149 
 
 Maher v. State, I Port. (Ala.) 265 48 
 
 Maher v. State, 3 Minn. 444 71 
 
 Manahan, People v., 32 Calif. 68 72 
 
 Maples v. State, 3 Heisk. (Tenn.) 408 156 
 
 Marsh, King v., i N. & P. 187 45 
 
 Marsh, R. v., 6 Ad. & El. 236 119 
 
 Marsh, State v., 13 Kan. 596 58 
 
 Marshall, State v., 74 N. W. 763 143 
 
 Marshall, Thornton v., 92 Ga. 548 167 
 
 Martin, State v., 2 Ired. (N. C.) 101 87 
 
 Martin, State v., 82 N. C. 672 58 
 
 Martin v. State, 30 Neb. 507 151 
 
 Martin, United States v., 50 Fed. Rep. 918 152 
 
 Mason v. State, 81 S. W. 718 139 
 
 Mathis, Hunter v., 40 Ind. 356 167 
 
 Matthews v. State, 58 S. W. 86 162 
 
 Mattson, Proprietor v., Pa. Colonial Cas. 35 31 
 
 May, State v., 50 Ind. 170 89 
 
 Mayes, Talton v., 163 U. S. 376 33 
 
 Mead, Com. v., 12 Gray (Mass.) 167 119 
 
 Medaris v. State, 10 Yerg. (Tenn.) 239 135 
 Meiers v. State, 56 Ind. 336 86, 88, 89 
 
 Mellor, State v., 13 R. I. 666 68 
 Mershon v. State, 51 Ind. 14 69, 85, 86 
 
 Mesca, Res. v., i Dall. (Pa.) 73 64 
 
 Mlesmer v. Com., 26 GratL (Va.) 976 48 
 Metropolitan Traction Co., People v., 50 N. Y. Sup. 1117 139, 143, 144, 146 
 
 Mewherter, State v., 46 Iowa 88 120 
 
 Mickel, State v., 65 Pac. 484 128 
 
 Millain, State v., 3 Nev. 409 77 
 
 Millar v. State, 2 Kan. 174 156 
 
 Miller, In re, 17 Fed. Cas. 295 162 
 
 Miller, State v., 53 Iowa 84 51 
 
 Miller, State v., 95 Iowa 368 139 
 
 Miller, State v., 2 Blackf. (Ind.) 35 73 
 
 Miller v. State, 69 Ind. 284 68, 87 
 
 Miller v. State, 33 Miss. 356 46 
 
 Miller v. State, 28 So. 208 128 
 
 Mills v. State, 76 Md. 274 84 
 
 Millville Borough, 10 Pa. C. C. Rep. 321 121 
 Minor, Com. v., 89 Ky. 555 142, 145
 
 Xlvi TABLE OF CASES. 
 
 PAGE 
 
 Moan, Ex Parte, 65 Calif. 216 "5 
 
 Mohler v. People, 24 111. 26 9* 
 
 Moice, People v., 15 Calif. 329 69 
 
 Moister, Com. v., 3 Pa. C. C. Rep. 539 "I 
 
 Moles, State v., 9 Mb. 694 136 
 
 Molett v. State, 33 Ala. 408 136 
 
 Molineaux, People v., 58 N. Y. Sup. ISS *43> 146 
 
 Mooney, State v., 10 Iowa 506 5 1 
 
 Moore v. Com., 9 Leigh. (Va.) 639 62 
 
 Montgomery v. State, 3 Kan. 263 5 
 
 Moore v. State, 13 Smedes & M. (Miss.) 259 135 
 
 Moore v. State, 81 S. W. 48 156 
 
 Moragne, In re, 53 Pac. 3 153 
 
 Morgan, People v., 95 N. W. 542 58 
 
 Morrison v. State, 41 Tex. 516 143 
 Morse, In re, 87 N. Y. Sup. 721 log, *33, 140, 150 
 
 Morton, Com. v., 34 Leg- Int. (Pa.) 438 54 
 
 Mbse v. State, 35 Ala. 421 156 
 
 Moses v. State, 58 Ala. 117 64 
 
 Motley, State v., 7 S. C. 327 62 8 7 
 
 Moyers v. State, n Humph. (Tenn.) 40 135 
 
 Mundell, United States v., 27 Fed. Cas. 23 135 
 
 Murphy v. State, 86 Ala. 45 65 
 
 Murphy, state v., 47 Mb. 274 134 
 
 Muscogee Railroad Co., Winter v., II Ga. 438 50, 51 
 Musick v. People, 40 111. 268 69, 76, 78 
 
 Mussey v. Mussey, 68 Me. 346 145 
 
 Muzingo, State v., Meigs (Tenn.) 112 156 
 
 Nagle, United States v., 27 Fed. Cas. 68 134 
 
 Naughton, People v., 38 How. Pr. Rep. (N. Y.) 43O "i, *35 
 
 Neal v. Delaware, 103 U. S. 370 67 
 
 Nealon v. People, 39 111. App. 481 50, 160 
 
 Nebraska, Bollyn v., 176 U. S. 83 33 
 
 New Bethlehem Borough, Com. v. 15 Pa, Superior Ct. 158 114 
 
 Newfane, State v., 12 Vt. 422 78, 81 
 
 Newman v. State, 43 Tex. 525 161 
 
 Newman v. State, 14 Wis. 393 73 
 
 Newton, R. v., 2 M. & Rob. 503 152 
 
 Newton v. State, 21 Fla. 53 5, 52 
 
 Nichol, People v., 34 Calif. 211 148 
 
 Nichols v. State, 46 Miss. 284 156 
 
 Nicholls v. State, 5 N. J. Law 539 48 
 
 Nixon v. State, 68 Ala. 535 49, Si 
 
 Noles v. State, 24 Ala. 672 33 
 
 Nomaque v. People, Breese (111.) 109 149 
 
 Noonan, Com. v., 38 Leg. Int. (Pa.) 184 90
 
 TABLE OF CASES. xlvii 
 
 Nordstrom, State v., 7 Wash. 506 33 
 
 Morris House v. State, 3 G. Greene (Iowa) 513 56 
 
 Northey, People v., 77 Calif. 618 80, 121 
 
 Noyes, State v., 87 Wis. 340 88 
 
 Nunn v. State, I Kelly (Ga.) 243 132 
 
 O'Brien v. State, 91 Ala. 16 89, 152 
 
 O'Byrne v. State, 51 Ala. 25 83, 89 
 
 Offutt, State v., 4 Blackf. (Ind.) 355 118 
 
 Ogle, Ex Parte, 61 S. W. 122 46 
 
 Ogle v. State, 63 S. W. 1009 46 
 
 O'Hair v. People, 32 111. App. 277 104 
 
 Oliver v. Com., 95 Ky. 372 150 
 
 Oliver v. State, 66 Ala. 8 53 
 
 O'Neill, People v., 107 Mich. 556 128 
 Osbome, State v., 61 Iowa 330 65, 76, 79, 80 
 Ostrander v. State, 18 Iowa 435 45, 69, 88, 147 
 
 Overshiner v. Com., 2 B. Mon. (Ky.) 344 149 
 
 Overstreet, State v., 128 Mo. 470 89, 103 
 
 Owens v. State, 25 Tex. App. 552 72, 78 
 
 Oxford, State v., 30 Tex. 428 120 
 Palmer, United States v., 27 Fed. Cas. 410 69, 78, 103 
 
 Palmore v. State, 29 Ark. 248 62, 70 
 
 Parker, Com. v., 2 Pick. (Mass.) 550 50 
 
 Parker v. People, 13 Colo. 155 89 
 
 Parker v. Territory, 52 Pac. 361 126 
 
 Parks, State v., 21 La. Ann. 251 61, 87 
 
 Partner v. State, 41 Ala. 416 89 
 Parrish, State v., 27 Tenn. 80 104, 150 
 
 Pate, State v., 67 Mo. 488 160 
 
 Patrick v. State, 16 Neb. 330 69 
 
 Patterson v. Com., 86 Ky. 313 156 
 
 Pearce v. Com. 8 S. W. 893 156 
 
 Peeples v. State, 35 So. 223 156 
 
 Pence v. Com., 95 Ky. 618 157 
 
 Pendry, Territory, v., 22 Pac. 760 143 
 
 Penfield v. Carpenter, 13 Johns. (N. Y.) 350 145 
 
 Penna. v. Keffer, Add. (Pa.) 290 166 
 
 People, Andrews v., 117 111. 195 135 
 
 People v. Arnold, 15 Calif. 476 69 
 
 People, Barron v., 73 111. 256 56 
 
 People, Bartley v., 156 111. 234 135 
 
 People, Beasley v., 89 111. 571 51 
 
 People v. Beatty, 14 Calif. 566 69, 103 
 
 People v. Borgstrom, 178 N. Y. 254 64, 65 
 
 People v. Bradner, 44 Hun. (N. Y.) 233 129 
 
 People, Brannigan v., 3 Utah 488 45, 56
 
 xlviii TABLE OF CASES. 
 
 PAGE 
 
 People v. Briggs, 60 How. Pr. Rep. (N. Y.) 17 120, 144 
 
 People v. Butler, 8 Calif. 435 147 
 
 People v. Butler, i Idaho 231 134 
 
 People, Carpenter v., 64 N. Y. 483 65 
 
 People v. Clements, 5 N. Y. Cr. Rep. 288 153 
 
 People, Collins v., 39 111. 233 150 
 
 People v. Colmere, 23 Calif. 632 85 
 
 People, Cox v. f 80 N. Y. 500 86 
 
 People v. Cuitano, 15 Calif. 327 48 
 
 People, Davidson v., go 111. 221 73 
 
 People, Dawson v., 25 N. Y. 399 157 
 
 People v. District Court, 29 Colo. 83 76 
 
 People, Dolan v., 64 N. Y. 485 58 
 
 People v. Earnest, 45 Calif. 29 89 
 
 People, Empson v., 78 111. 248 161 
 
 People, Findley v., i Manning (Mich.) 234 51, 52, 161 
 
 People, Fitzpatrick v., 98 111. 269 156 
 
 People v. Fitzpatrick, 30 H!un. (N. Y.) 493 66 
 
 People v. Gallagher, 55 Calif. 462 58 
 
 People, Gardiner v., 3 Scam. (111.) 83 149 
 
 People, Gardner v., 20 111 430 156 
 
 People v. Gatewood, 20 Calif. 146 147 
 
 People v. Geiger, 49 Calif. 643 69 
 
 People, Gilmore v., 87 111. App. 128 119 
 
 People, Gitchell v., 146 111. 175 119 
 
 People v. Glen, 173 N. Y. 395 70, 127 
 
 People, v. Goldenson, 76 Calif. 328 68, 103 
 
 People, Goodman v., 90 111. App. 533 149 
 
 People v. Green, i Utah n 103 
 
 People v. Griffin, 2 Barb. (N. Y.) 427 87 
 
 People v. Hansted, 135 Calif. 149 80 
 
 People v. Harmon, 69 N. Y. Sup. 511 142 
 
 People v. Hayes, 59 N. Y. Sup. 761 144 
 
 People v. Hidden, 32 Calif. 445 69, 83, 84, 87 
 
 People v. Hooghkerk, 96 N. Y. 149 66 
 
 People, Hope v., 83 N. Y. 418 143 
 
 People v. Hulbut, 4 Denio (N. Y.) 133 120, 146, 152 
 
 People, Humpeler v., 92 111. 400 150 
 
 People v. Hunter, 54 Calif. 65 147 
 
 People v. Hyler, 2 Parker Cr. Rep. (N. Y.) 570 105 
 
 People v. Jewett, 3 Wend. (N. Y.) 314 66, 68, 73, 76 
 
 People, Kelly v., 39 111. 157 156 
 
 People, Kelly v., 132 111. 363 156 
 
 People v. Kelly, 21 How. Pr. Rep. (N. Y.) 54 120, 133 
 
 People v. King, 28 Calif. 265 144 
 
 People v. King, 2 Caines (N. Y.) 98 45, 46
 
 TABLE OF CASES. xlix 
 
 People r. Landis, 139 Calif. 426 80 
 
 People v. Lauder, 82 Mich. 109 143, 144 
 People v. Lee, 2 Utah 441 84, 154, 156 
 
 People r. Lem Deo, 132 Calif. 199 140 
 
 People v. Leonard, 106 Calif. 302 84, 160 
 
 People v. Lindenborn, 52 N. Y. Sup. 101 105 
 
 People, McElhanon v., 92 111. 369 69 
 
 People, McGuire v., 2 Parker Cr. Rep. (N. T.) 148 48 
 
 People v. McKay, 18 Johns. (N. Y.) 212 48 
 
 People, Mackey v., 2 Colo. 13 161 
 
 People v. Manahan, 32 Calif. 68 72 
 People v. Metropolitan Traction Co., 50 N. Y. Sup. 1117 139, 143, 144, 146 
 
 People, Mohler v., 24 111. 26 91 
 
 People v. Moice, 15 Calif. 329 69 
 
 People v. Molineux, 58 N. Y. Sup. 155 143, 146 
 
 People v. Morgan, 95 N. W. 542 58 
 People, Musick v., 40 111. 268 69, 76, 78 
 
 People v. Naughton, 38 How. Pr. Rep. (N. Y.) 430 121, 135 
 
 People, Nealon v., 39 111. App. 481 50, 160 
 
 People v. Nichol, 34 Calif. 211 148 
 
 People, Nomaque v., Breese (111.) 109 149 
 
 People v. Northey, 77 Calif. 618 80, 121 
 
 People, O'Hair v., 32 111. App. 277 104 
 
 People v. O'Neill, 107 Mich. 556 128 
 
 People, Parker v., 13 Colo. 155 89 
 
 People v. Petrea, 92 N. Y. 128 58, 66 
 
 People v. Phelan, 123 Calif. 551 71 
 
 People, Preuit v., 5 Neb. 377 58 
 
 People v. Price, 2 N. Y. Sup. 414 144 
 
 People, Rainey v., 3 Gil. (111.) 71 156 
 
 People v. Ramirez, 56 Calif. 533 140 
 
 People, Raymond v., 30 Pac. 504 140 
 
 People, Regent v., 96 111. App. 189 128 
 People v. Reigel, 78 N. W. 1017 44, 56, 65 
 People v. Roberts, 6 Calif. 214 91, 147, 149 
 
 People v. Robinson, 2 Parker Cr. Rep. (N. Y.) 235 68, 87 
 
 People v. Romero, 18 Calif. 89 65 
 
 People v. Rose, 52 Hun. (N. Y.) 33 93 
 
 People, Sault v., 34 Pac. 263 153 
 
 People v. Scannell, 72 N. Y. Sup. 449 139 
 
 People v. Sellick, 4 N. Y. Cr. Rep. 329 142, 162 
 
 People v. Shattuck, 6 Abb. (N. Y.) 33 119 
 
 People v. Shea, 147 N. Y. 78 162 
 People v. Sheriff of Chautauqua County, n Gv. Proc. Rep. (N. 
 
 Y.) 172 150, 160, 163 
 
 People, Shoop v., 45 111. App. no 119, 128 
 
 4
 
 TABLE OF CASES. 
 
 PAGE 
 
 People v. Simmons, 119 Calif, i 46, 69 
 
 People v. Singer, 18 Abb. N. C. 96 144 
 
 People v. Smith, 76 N. W. 124 77 
 
 People v. Southwell, 46 Calif. 141 68 
 
 People v. Stern, 68 N. Y. Sup. 732 142 
 
 People, Stone v., 2 Scam. (111.) 326 161 
 
 People v. Strong, i Abb. Prac. Rep. N. S. (N. Y.) 244 142 
 
 People v. Stuart, 4 Calif. 218 143 
 
 People, Thayer v., 2 Doug. (Mich.) 417 70 
 
 People v. The Justices, 20 Johns. (N. Y.) 310 48 
 
 People v. Thompson, 81 N. W. 344 120 
 
 People, Thornell v., n Colo. 305 156 
 
 People, Thorpe v., 3 Utah 441 49 
 
 People v. Thurston, 5 Calif. 69 45 
 
 People v. Tinder, 19 Calif. 539 105 
 
 People, Walker v., 22 Colo. 415 115 
 
 People v. Warren, 109 N. Y. 615 112, 153 
 
 People v. White, 81 111. 333 160 
 
 People v. Willis, 52 N. Y. Sup. 808 144 
 
 People, Wilson v., 3 Colo. 325 60, 68 
 
 People v. Winant, 53 N. Y. Sup. 695 146 
 
 People v. Wintermute, 46 N. W. 694 65 
 
 People, Yates v., 38 111. 527 91, 151 
 
 People v. Young, 31 Calif. 563 118, 121 
 
 Pequea Creek Bridge, 68 Pa. 427 122 
 
 Perkins v. State, 92 Ala. 66 88 
 
 Perkins v. State, 4 Ind. 222 119 
 
 Perry, State v., 29 S. E. 384 45, 46, 75 
 
 Peter v. State, 3 How. (Miss.) 433 91, 135 
 
 Peters v. State, 98 Ala. 38 84 
 
 Peters v. State, n Tex. 762 48 
 
 Peterson, State v., 61 Minn. 73 132, 155 
 
 Petrea, People v., 92 N. Y. 128 58, 66 
 
 Pfaff, Com. v., 5 Pa. Dist. Rep. 59 in 
 
 Phelan, People v., 123 Calif. 551 71 
 
 Phillips, State v., 2 Ala. 297 48 
 
 Phillips v. State, 68 Ala. 469 65 
 
 Pickering, Proprietor v., Pa. Colonial Cases 32 31 
 
 Pierce, Heard v., 8 Cush. (Mass.) 338 120, 134 
 
 Pierce, State v., 8 Iowa 231 50 
 
 Pierce, State v., go Iowa 506 64 
 
 Pierce v State, 12 Tex. 210 93 
 
 Pinson v. State, 23 Tex. 579 148 
 
 Pittman v. State, 25 Fla. 648 157 
 
 Pitner v. State, 23 Tex. App. 366 33 
 
 Plumer, United States v., 27 Fed. Cas. 561 148
 
 TABLE OF CASES. H 
 
 PAOK 
 
 Plymouth, In re Annexation to Borough of, 167 Pa. 612 76 
 
 Pointer r. State, 89 Ind. 255 68 
 
 Pond v. State, 47 Mass. 39 156 
 
 Porter, United States v., 27 Fed. Cas. 595 119 
 
 Porterfield v. Com., 91 Va. 801 124 
 Portis v. State, 23 Miss. 578 50, 83, 84, 85 
 
 Poulterer's Case, The, 9 Co. 55 b. 117, 167 
 
 Powers, State v., 59 S. C. 200 49 
 
 Powle's Case, 2 Rolle Rep. 52 148 
 
 Prescott v. State, 19 Ohio 184 33 
 
 Presentment of Grand Jury, i R. M. Charlt. (Ga.) 149 159 
 
 Preuit v. People, 5 Neb. 377 58 
 
 Price, Com. v., 3 Pa. C. C. Rep. 175 138, 146 
 
 Price v. Com., 21 Gratt. (Va.) 846 149 
 
 Price, People v., 2 N. Y. Sup. 414 144 
 
 Priestley, Com. v., 10 Dist. Rep. (Pa.) 217 153 
 
 Prior, Res. v., i Yeates (Pa.) 206 34 
 
 Pritchett, Com. v., 74 Ky. 277 78 
 
 Proprietor v. Mattson, Pa. Colonial Cases 35 31 
 
 Proprietor i: Pickering, Pa. Colonial Cases 32 31 
 
 Public Press, Grand Jury v., 4 Brews. (Pa.) 313 116 
 
 Pybos v. State, 3 Humph. (Tenn.) 49 45 
 
 Queen v. Simmonite, i Cox C. C. 30 152 
 
 Quimby, State v., 51 Me. 395 72 
 
 R. v. Cooke, 8 Car & P. 582 148, 152 
 
 R. r. Hughes, i Car. & K. 519 118 
 
 R. r. Marsh, 6 Ad. & El. 236 119 
 
 R. v. Newton, 2 M. & Rob. 503 152 
 
 Rahlfing v. Heidrick, 4 Phila. (Pa.) 3 145 
 
 Railroad Co., Klemmer v., 163 Pa. 521 66 
 
 Railroad Co., Sherman v., 106 N. Y. 542 145 
 
 Railroad Co., Winter v., II Ga. 438 50, 51 
 
 Railway Co., v. Johnson, 55 Kan. 344 145 
 
 Rainey v. People, 3 Gil. (111.) 71 156 
 
 Rambo, Cock v., Pa. Colonial Cases 79 32 
 
 Ramirez, People v., 56 Calif. 533 140 
 
 Rampey v. State, 83 Ala. 31 49, 50 
 
 Ramsey v. State, 21 So. 209 85 
 
 Rand, State v., 33 N. H. 216 87 
 
 Randall, Hunter v., 69 Me. 468 119 
 
 Rawls v. State, 8 Smedes & M. (Miss.) 599 51 
 
 Raymond v. People, 30 Pac. 504 140 
 
 Rector v. Smith, n Iowa 302 158, 167 
 
 Reed, State v., 67 Me. 127 134 
 Reed v. State, I Tex. App. I 65, 68, 69, 71 
 Reed, United States v., 27 Fed. Cas. 727 48, 55, 66, 74, 119, 123, 142
 
 lii TABLE OF CASES. 
 
 PAGB 
 
 Reeves v. State, 84 Ind. 116 156 
 Reeves, United States v., 27 Fed. Cas. 750 63, 69, 74, 86, 122 
 
 Reg. v. Austin, 4 Cox C. C. 385 152 
 
 Reg. v. Hodges, 8 Car. & P. 195 148 
 
 Reg. v. Holloway, 9 Car. & P. 43 161 
 
 Reg. v. Humphreys, Car. & M. 601 152 
 
 Reg. v. Russell, i Car. & M. 247 139 
 
 Regent v. People, 96 111. App. 180 128 
 
 Reich v. State, 53 Ga 73 64 
 
 Reid, State v., 20 Iowa 413 6q, i6t 
 Reigel, People v., 78 N. W. 1017 44, 56, 65 
 
 Reinhart, State v., 38 Pac. 822 152 
 
 Reisz, State v., 48 La. Ann. 1446 84 
 
 Res. v. Burns, i Yeates (Pa.) 370 34 
 
 Res. v. Miesca, i Dall. (Pa.) 73 64 
 
 Res. v. Prior, i Yeates (Pa.) 206 34 
 Res. v. Shaffer, i Dall. (Pa.) 236 101, 103, 105, 140 
 
 Res. v. Wray, 3 Dall. (Pa.) 490 34 
 
 Rex. v. Dickinson, Russ. & Ry. Crown Cases, 401 139 
 
 Rex v. Fieldhouse, I Cowper 325 147 
 
 Reynolds, Com. v., 2 Kulp. (Pa.) 345 no 
 
 Reynolds, Ex Parte, 34 S. W. 120 46 
 
 Reynolds v. State, u Tex. 120 134, 157 
 
 Reynolds v. United States, 98 U. S. 145 45 
 
 Reynolds, United States v., i Utah 226 76 
 
 Rice v. State, 3 Kan. 141 44 
 
 Rich, Com. v., 14 Gray (Mass.) 335 160 
 
 Richard, State v., 50 La. Ann. 210 132 
 
 Richards v. State, 22 Neb. 145 115 
 
 Richardson v. Com., 76 Va. 1007 140 
 
 Richardson, McLellan v., 13 Me. 82 120 
 Richardson, United States v., 28 Fed. Rep. 61 55, 69, 86 
 
 Rickey, State v., g N. J. Law 293 49 
 
 Rickey, State v., 10 N. J. Law 83 64 
 
 Ridgway, Com. v., 2 Ash. (Pa.) 247 164 
 
 Ridling v. State, 56 Ga. 601 91 
 
 Riley, United States v., 74 Fed. Rep. 210 152 
 
 Ripperdon, Com. v., Litt. Sel. Cas. (Ky.) 194 148 
 
 Rippey v. State, 29 Tex. App. 37 157 
 Roberts, People v., 6 Calif. 214 91, 147, 149 
 
 Roberts, State v., n Mo. 510 136 
 
 Roberts, State v., 2 Dev. & Bat. (N. C.) 540 138 
 
 Robeson v. State, 50 Tenn. 266 104 
 
 Robinson v. Com., 88 Va. 900 48, 87 
 
 Robinson, People v., 2 Parker Cr. Rep. (N. Y.) 235 68, 87 
 
 Robinson, State v., 2 Lea (Tenn.) 114 143
 
 TABLE OP CASES. KH 
 
 PAOI 
 
 Robinson v. State, 33 Ark. 180 156 
 
 Robinson v. State, 24 Tex. App. 4 148 
 
 Roby v. State, 74 Ga. 812 58 
 
 Rocco v. State, 37 Miss. 357 119 
 
 Rock, State v., 57 Pac. 532 90 
 
 Rockafellow, State v., 6 N. J. Law 332 62 
 
 Rodes v. State, 10 Lea. (Tenn.) 414 135 
 
 Roe v. State, 2 So. 459 93 
 
 Rogers v. Alabama, 192 U. S. 226 67 
 
 Rogers, Imlay v., 2 Halst. (N. J.) 347 119 
 
 Rogers, In re, 129 Calif. 468 133 
 
 Rogers, State v., 37 Mo. 367 136 
 
 Rohfrischt, State v., 12 La. Ann. 382 150 
 Rolland v. Com., 82 Pa. 306 62, 65, 66, 70, 73, 77, 85 
 
 Romero, People v., 18 Calif. 89 65 
 
 Romero, Territory v., 2 N. Mex. 474 87 
 
 Rondeau, United States v., 16 Fed. Rep. 109 55, 69 
 
 Rose, People v., 52 Hun. (N. Y.) 33 93 
 
 Ross v. State, I Blackf. (Ind.) 390 71, 85 
 
 Ross, State v., 14 La. Ann. 364 115 
 
 Roth v. State, 3 Ohio Cir. Ct. Rep. 59 73, 74 
 
 Rothschild v. State, 7 Tex. App. 519 128, 139 
 
 Rovnianck, Com. v., 12 Pa. Superior Ct. 86 138 
 
 Rowan v. State, 30 Wis. 129 33 
 Rowand, Com. v., 82 Pa. 405 , no, 112, 152 
 
 Rowland, State v., 36 La. Ann. 193 61, 87 
 
 Rudd, Com. v., 3 Ky. Law Rep. 328 78 
 
 Rumsey v. Territory, 21 Pac. 152 63 
 
 Runnels v. State, 28 Ark. 121 51 
 
 Russell, Reg. v., \ Car. & M. 247 139 
 
 Russell, State v., 90 Iowa 569 80 
 
 Russell v. State, 33 Ala. 366 71 
 
 Russell v. State, 10 Tex. 288 93 
 
 Ruthven, State v., 58 Iowa 121 69 
 
 Rutzell v. State, 15 Ark. 67 103 
 
 Ryan, Com. v., 5 Mass. 90 81 
 
 Salge, State v., 2 Nev. 321 134 
 Salter, Com. v., 2 Pears. (Pa.) 461 45, 46, 54, 66, 128, 129, 138, 156 
 
 Sanborn, Com. v., 116 Mass. 61 124 
 
 Sanders v. State, 55 Ala. 183 87 
 
 Sandford, United States v., 27 Fed. Cas. 952 135 
 
 Sandoz, State v., 37 La. Ann. 376 156 
 
 Sargent, Com. v., Thach. Cr. Cas. (Mass.) 116 148 
 
 Sault v. People, 34 Pac. 263 152 
 
 Sayer's Case, 8 Leigh. (Va.) 722 147 
 
 Scannell, People v., 72 N. Y. Sup. 449 129
 
 Hv TABLE OF CASES. 
 
 PAGE 
 
 Scarlett's Case, 12 Co. 98 42, 117. 167 
 
 Schall, Com. v., 9 Lane. Law Rev. (Pa.) 332 m, 138, 151 
 
 Schieler, State v., 37 Pac. 272 84 
 
 Schmidt, Ex Parte, 71 Calif. 212 120 
 
 Scott, State v., 25 Ark. 107 135 
 
 Seaborn, State v., 15 N. C. 305 86, 87 
 
 Sears, State v., 86 Mo. 169 136 
 
 Sears, State v., 61 N. C. 146 68 
 
 Sellick, People v., 4 N. Y. Cr. Rep. 329 142, 162 
 
 Shackelford, United States v., 27 Fed. Cas. 1037 135 
 Shaffer, Res. v., i Dall. (Pa.) 236 101, 103, 105, 140 
 
 Shaftesbury's Case, 8 How. St. Tr. 774 29, 30, 117 
 
 Sharp, State v., no N. C. 604 80 
 
 Shattuck, People v., 6 Abb. (N. Y.) 33 119 
 
 Shattuck v. State, n Ind. 473 127, 128 
 
 Shea, People v.. 147 N. Y. 78 162 
 
 Shelton, State v., 64 Iowa 333 76, 78, 147 
 
 Shepard, United States v., 27 Fed. Cas. 1056 113, 115, 135 
 
 Sheppard, Com. v., 20 Pa. Superior Ct. 417 in, 114 
 
 Sheridan's Trial, 31 How. St. Tr. 567 74, 75 
 Sheriff of Chautauqua County, People v., II Civ. Proc, Rep. (N. 
 
 Y.) 172 150, 160, 163 
 
 Sherman v. Railroad Co., 106 N. Y. 542 145 
 
 Shew, Com. v., 8 Dist. Rep. (Pa.) 484 68, 87 
 
 Shippey, State v., 10 Minn. 223 149 
 
 Shoop v. People, 45 111. App. no 119, 128 
 
 Shope v. State, 32 S. E. 140 80 
 
 Shouse v. Com., 5 Pa. 83 148 
 
 Shropshire v. State, 12 Ark. 190 87 
 
 Shubel, Com. v., 4 Pa. C. C. 12 in 
 
 Shumpert, State v., i S. E. 85 33 
 
 Shupp, Com. v., 6 Kulp (Pa.) 430 in 
 
 Silvers, State v., 82 Iowa 714 50 
 
 Simmonite, Queen v., i Cox C. C. 30 152 
 
 Simmons v. Com., 89 Va. 156 156 
 
 Simmons, People v., 119 Calif. I 46, 69 
 
 Simmons, United States v., 46 Fed. Rep. 65 139, 150 
 
 Sintms v. State, 60 Ga. 145 119 
 
 Simons, Com v., 6 Phila. (Pa.) 167 m, 114 
 
 Simpson v. State, 34 S. E. 204 80 
 
 Sims v. State, 45 S. W. 705 139 
 
 Singer, People v., 18 Abb. N. C. 96 144 
 
 Skeggs, Com. v., 66 Ky. 19 120 
 
 Skinner v. State, 30 Ala. 524 152 
 
 Skinner, State v., 34 Kan. 256 67 
 
 Slagel v. Com., 5 Ky. Law Rep. 545 72
 
 TABLE OF CASES. Iv 
 
 PACK 
 
 Slinkard, Griffith v., 44 N. E. 1001 167 
 
 Smallwood, State v., 68 Mb. 192 87 
 
 Smith, Com. v., 10 Bush. (Ky.) 476 61, 87 
 Smith, Com. v., 9 Mass. 107 73, 81. 85 
 
 Smith, Com. v., 4 Pa. Superior Ct I 54 
 
 Smith, Com. r., 27 S. W. 810 86 
 
 Smith, People v., 76 N. W. 124 77 
 
 Smith, Rector v., n Iowa 302 158, 167 
 
 Smith, State v., 88 Iowa 178 52 
 
 Smith, State v., 67 Me. 328 49 
 
 Smith, State v., 80 N. C. 410 62, 63 
 
 Smith, State v., 38 S. C. 270 49 
 
 Smith, State v., 19 Tenn. 99 104 
 
 Smith v. State, 19 Conn. 493 122 
 
 Smith v. State, 90 Ga. 133 58 
 
 Smith v. State, i Humph. (Tenn.) 396 130 
 
 Smith v. State, I Tex. App. 133 68 
 
 Smith v. State, 19 Tex. App. 95 84, 160 
 
 Smith, United States v., 27 Fed. Cas. 1186 145 
 
 Smith, United States v., 40 Fed. Rep. 755 115 
 
 Smyth, Com. v., n Cush. (Mass.) 473 149 
 
 Sontag, Ex Parte, 64 Calif. 525 119, 121 
 
 Sopher, State v., 35 La. Ann. 975 149 
 
 Southwell, People v., 46 Calif. 141 68 
 
 Sparks v. Com., 9 Pa. 354 150, 154 
 
 Sparrenberger v. State, 53 Ala. 481 142 
 
 Spattenhover, Com. v., 8 Luz. Leg. Reg. (Pa.) 101 143 
 
 Spigener v. State, 62 Ala. 383 72, 119 
 
 Spratt v. State, 8 Mo. 247 150 
 
 Squire, State v., 10 N. H. 558 165 
 
 Staley, State v., 71 Tenn. 565 104 
 
 Stanford, State v., 20 Ark. 145 135 
 
 Stanley v. State, 88 Ala. 154 157 
 
 Stanley v. State, 16 Tex. 557 62 
 
 Stanley r. United States, 33 Pac. 1025 65 
 
 Staples, Territory v., 26 Pac. 166 139 
 
 Stark r. Bindley, 52 N. E. 804 103 
 
 State, Abram r., 25 Tex. 589 93 
 
 State r. Adam, 40 La. Ann. 745 128 
 
 State, Adams v., 28 Fla. 511 63 
 
 State, Adams v., n Ind. 304 156 
 
 State r. Adams, 20 Iowa 486 72 
 
 State v. Adams, 70 Tenn. 647 104 
 
 State v. Addison, 2 S. C. 356 128 
 
 State, Alden v., 18 Fla. 187 149 
 
 State v. Alderson, 10 Yerg. (Tenn.) 523 49
 
 r TABLE OF CASES. 
 
 I'AOE 
 
 State v. Aleck, 41 La. Ann. 83 128 
 
 State v. Alexander, 35 La. Ann. noo 81 
 
 State, Allen v., 77 111. 484 91 
 
 State, Allen v., 61 Miss. 627 165 
 
 State, Allen v., 5 Wis. 329 103 
 
 State v. Allen, R. ML Charlton's Rep. (Ga.) 518 155 
 
 State v. Allen, 22 Mo. 318 136 
 
 State v. Allen, 83 N. C. 680 137 
 State if. Ames, 96 N. W. 330 64, 73, 74 
 
 State, Anderson v., 5 Ark. 444 , 134 
 
 State, App. v., 90 Ind. 73 89 
 
 State v. Armstrong, 167 Mo. 257 49 
 
 State, Ashburn v., 15 Ga. 246 92, 138 
 
 State, Avirett v., 76 Md. 510 66 
 
 State, Aylesworth v., 65 111. 301 156 
 
 State, Ayrs v., 5 Cold. (Tenn.) 26 137 
 
 State v. Bacon, 77 Miss. 366 140 
 
 State, Baker v., 39 Ark. 180 93 
 
 State, Baker v., 23 Miss. 243 83 
 State v. Baker, 20 Mo. 338 . 119, 120 
 
 State v., Baker, 33 W. Va. 319 128 
 
 State, Baldwin v., 126 Ind. 24 104 
 
 State v. Baldwin, 15 Wash. 15 33 
 
 State, Bales v., 63 Ala. 30 57 
 
 State v. Banks, 40 La. Ann. 736 157 
 State, Barber v., 46 S. W. 233 64, 71, 87 
 
 State, Barger v., 6 Blackf. (Ind.) 188 160 
 
 State v. Barker, 107 N. C. 913 147 
 
 State, Barkman v., 52 S. W. 69 71 
 
 State v. Barnes, 73 Tenn. 398 104 
 
 State v. Barnett, 3 Kan. 250 33 
 State, Barney v., 12 Smedes & M. (Miss.) 68 61, 62, 68, 85, 87, 147 
 
 State v. Bates, 148 Ind. 610 140 
 
 State v. Battle, 126 N. C. 1036 54 
 
 State, Beal v,, 15 Ind. 378 103 
 
 State, Beason v., 34 Miss. 602 60 
 
 State, Beavers v., 58 Ind. 530 156 
 
 State v. Becky, 79 Iowa 368 66 
 
 State v. Beebe, 17 Minn. 241 120 
 
 State, Bell v., 42 Ind. 335 88, 89 
 
 State, Bellair v., 6 Blackf. (Ind) 104 64 
 
 State v. Belvel, 89 Iowa 405 68 
 
 State, Bennett v., 62 Ark. 516 139, 140 
 
 State, Bennett v., i Martin & Yerg. (Tenn.) 133 48 
 
 State, Bennett v., 8 Humph. (Tenn.) 118 156 
 
 State v. Bennett, 45 La. Ann. 54 160
 
 TABLE OF CASES Ivii 
 
 State, Benson v., 68 Ala. 513 5. 57 
 
 State, Benson v., 68 Ala. 544 148 
 
 State, Berry r., 63 Ala. 126 5* 
 
 State, Betts i/., 66 Ga. 508 76, 80 
 State v. Billings, 77 Iowa 417 76, 78, 82 
 
 State, Billingslea v., 68 Ala. 486 65 
 
 State, Bird v., 14 Ga. 43 48 
 
 State, Bird v., 50 Ga. 585 137 
 
 State, Bird r., 103 Tenn. 343 150 
 
 State, Blackmore v., 8 S. W. 940 90 
 
 State, Blaney v., 74 Md. 153 104 
 
 State, Blau v., 34 So. 153 31 127 
 
 State v. Bleekley, 18 Mb. 428 77 
 
 State, Blevins v., 68 Ala. 92 51, 129 
 
 State, Blodget v., 3 Ind. 403 152 
 
 State, Bloomer v., 3 Sneed. (Tenn.) 66 145 
 
 State, Blume v., 56 N. E. 771 149 
 
 State v. Bordeaux, 93 N. C. 560 154 
 
 State v. Borroum, 25 Miss. 203 87 
 
 State v. Boswell, 104 Ind. 541 115 
 
 State, Boulo v., 51 Ala. 18 65 
 
 State, Bowen v., 24 So. 551 70 
 State v. Bowman, 103 Ind. 69 149, 151 
 
 State v. Bowman, 73 Iowa no 83 
 
 State v. Bowman, 90 Me. 363 140 
 
 State, Box v., 34 Miss. 614 46 
 
 State, Boyd v., 98 Ala. 33 51 
 
 State, Boyd v., 46 Tenn. i 48 
 
 State v. Boyd, 2 Hill (S. C.) 288 146 
 
 State, Boyington v., 2 Port. (Ala.) 100 85 
 
 State v. Bradford, 57 N. H. 188 48, 84 
 
 State v. Bradley, 32 La. Ann. 402 66 
 State v. Brainerd, 56 Vt. 532 45, 77, 147 
 
 State v. Branch, 68 N. C. 186 117 
 
 State v. Brandon, 28 Ark. 410 86 
 
 State v. Brandt, 41 Iowa 593 58, 90 
 
 State v. Brewer, 8 Mo. 373 120 
 
 State v. Brewster, 42 L. R. A. 444 139 
 State v. Brooks, 9 Ala. 9 52, 62, 72 
 
 State v. Brooks, 48 La. Ann. 1519 84 
 
 State v. Broughton, 7 Ired. (N. C.) 96 119 
 
 State, Brown v., 10 Ark. 607 92 
 
 State, Brown v., 7 Humph. (Tenn.) 155 156 
 
 State, Brown v., 32 Tex. Cr. Rep. 119 71 
 
 State v. Brown, 10 Ark. 78 62 
 
 Statj v. Brown, 10 Ark. 104 135
 
 Iviii TABLE OF CASES. 
 
 PAGB 
 
 State v. Brown, 81 N. C. 568 150, 152, 156 
 
 State -v. Brown, 28 Ore. 147 74 
 
 State v. Brown, 31 Vt. 602 149 
 
 State, Broyles v., 55 S. W. 966 90 
 
 State v. Bruce, 77 Mo. 193 134 
 
 State, Bryant v., 79 Ala. 282 142 
 
 State v. Bryant, 10 Yerg. (Tenn.) 527 62 
 
 State, Buchanan v. 52 S. W. 769 143 
 
 State v. Buntin, 123 Ind. 124 149 
 
 State, Burrell v., 129 Ind. 290 84 
 
 State v. Butler, 16 Tenn. 83 104 
 
 State, Byrd v., \ How. (Miss.) 247 91, 127 
 
 State v. Cain, i Hawks. (N. C.) 352 132 
 
 State, Caldwell v., 5 Tex. 18 157 
 
 State v. Calhoon, i Dev. & Bat. (N. C.) 374 148, 149 
 
 State v. Cameron, 2 Chand. (Wis.) 172 66 
 
 State v. Cantrell, 21 Ark. 127 48 
 
 State, Carl v., 28 So. 505 143 
 
 State v. Carlson, 62 Pac. 1016 81 
 
 State v. Carney, 20 Iowa 82 57 
 
 State, Carpenter v., 62 Ark. 286 87 
 
 State, Carpenter v., 4 How. (Miss.) 163 45 
 
 State, Carter v., 75 Ga. 747 73 
 
 State, Carter v., 46 S. W. 236 64, 69 
 
 State v. Carver, 49 Me. 588 87 
 
 State v. Chairs, 68 Tenn. 196 78 
 
 State v. Chambers, 87 Iowa i 70 
 
 State v. Champeau, 52 Vt. 313 67 
 
 State v. Chandler, 2 Hawks. (N. C.) 439 149 
 
 State, Chappel v., 8 Yerg. (Tenn.) 166 156 
 
 State, Chase v., 46 Miss. 683 68 
 
 State, Chase v., 20 N. J. Law 218 48, 49 
 
 State, Cheek v., 38 Ala. 227 152 
 
 State, Cherry v., 6 Fla. 679 150 
 
 State, Christmas v., 53 Ga. 81 152 
 
 State, Clair v., 40 Neb. 534; 28 L. R. A. 367 124, 126 
 
 State v. Clapper, 59 Iowa 279 150 
 
 State, Clare v., 68 Ind. 17 156 
 State, Clare v., 30 Md. 163 66, 68, 87 
 State v. Clarissa, n Ala. 57 76, 85, 87 
 
 State v. Clark, 18 Mo. 432 157 
 
 State v. Clayton, 11 Rich. Law (S. C.) 581 45 
 
 State, Clem v., 33 Ind. 418 160 
 
 State v. Clifton, 73 Mo. 430 68, 87 
 State v. Clough, 49 Me. 573 49, 50, 139 
 
 State, Cobb v., 40 Neb. 545 124
 
 TABLE OF CASES. Hx 
 
 PAOK 
 
 State, Cody v., 3 How. (Miss.) 27 135 
 
 State v. Cole, 17 Wis. 674 64 
 
 State V. Cole, 19 Wis. 129 80 
 
 State v. Coleman, 8 S. C. 237 134 
 
 State, Collins v., 13 Fla. 651 130 
 
 State, Collins v., 31 Fla. 574 75 
 
 State v. Collins, 3 Dev. (N. C.) 117 149 
 
 State v. Collins, 65 Tenn. 151 91, 148 
 
 State v. Collis, 73 Iowa 542 153 
 
 State v. Comer, 157 Ind. 611 133, 144 
 
 State, Compton v., 23 So. 750 65 
 
 State v. Compton, 13 W. Va. 852 157 
 
 State v. Congdon, 14 R. I. 267 60, 63 
 
 State, Conner v., 25 Ga. 515 48, 59 
 
 State, Conner v., 4 Yerg. (Tenn.) 137 151 
 
 State v. Conway, 35 La. Ann. 350 58 
 
 State v. Cooley, 75 N. W. 729 46, 56 
 
 State, Cooper v., 79 Ind. 206 149, 151 
 State v. Copp., 34 Kan. 522 45, 51, 147 
 
 State, Cotton v., 31 Miss. 504 84 
 
 State, Cotton v., 43 Tex. 169 143 
 
 State, Couch v., 63 Ala. 163 50, 57 
 
 State, Courtney v., 5 Ind. App. 356 140 
 State v. Cowan, i Head (Tenn.) 280 148, 164, 165 
 
 State v. Cox, 6 Ired. ( N. C.) 440 148 
 
 State v. Creighton, I N. & Me. C. (S. C.) 256 148 
 
 State v. Crilly, 77 Pac. 701 156 
 
 State, Crocker v., Meigs (Tenn.) 127 116, 118 
 
 State, Cross v., 63 Ala. 40 51 
 
 State, Cross v., 78 Ala. 430 140 
 
 State, Cubine v., 73 S. W. 396 63 
 
 State, Danforth v., 75 Ga. 614 156 
 State v. Davidson, 2 Cold. (Tenn.) 184 151, 155, 156 
 
 State v. Davidson, 12 Vt. 300 151 
 
 State, Davis v., 46 Ala. 80 89 
 State v. Davis, 41 Iowa 311 65, 119, 120 
 
 State v. Davis, 14 La. Ann. 678 88 
 
 State v. Davis, 22 Minn. 423 70 
 
 State v. Davis, 126 N. C. 1007 54 
 
 State v. Davis, 12 R. I. 492 63 
 
 State v. Dayton, 23 N. J. Law 49 143 
 
 State v. De Hart, 109 La. 570 150 
 
 State, Deitz v., 123 Ind. 85 149 
 
 State, Denning v., 22 Ark. 131 84 
 
 State v. Denton, 14 Ark. 343 135 
 
 State, Denton v., 155 Ind. 307 149
 
 Ix TABLE OF CASES. 
 
 PAGH 
 
 State v. Derrick, 44 S. C. 344 49 
 
 State v. De Serrant, 33 La. Ann. 979 115 
 
 State, Deshazo v., 23 Tenn. 275 104 
 
 State v. Dillard, 35 La. Ann. 1049 88 
 
 State v. District Court, 55 Pac. 916 140 
 
 State, Dixon v., 29 Ark. 165 87 
 State, Dixon v., 3 Iowa 416 C6, 68, 69 
 
 State, Dixon v., 20 80.839 64, 67 
 
 State, Doebler v., 31 Tenn. 473 104 
 
 State v. Doherty, 60 Me. 504 89 
 
 State, Donald v., 31 Fla. 255 147 
 
 State v. Donaldson, 43 Kan. 431 67 
 
 State, Dorman v., 56 Ind. 454 50 
 
 State, Doss v., 28 Tex. App. 506 139 
 State, Dowling v., 5 Smedes & M. (Miss.) 664 50, 52, 60 
 
 State, Downs v., 78 Md. 128 68 
 
 State, Doyle v., 17 Ohio 222 56 
 
 State, Drake v., 25 Tex. App. 293 84, 160 
 
 State v. Drogmond, 55 Mo. 87 83 
 
 State, Duke v., 20 Ohio St. 225 137 
 
 State, Dukes v., 14 Fla. 499 50 
 
 State v. Duncan, 28 N. C. 98 66 
 
 State v. Duncan, 7 Yerg. (Tenn.) 271 61, 87 
 
 State v. Durham Fertilizer Co., in N. C. 658 63 
 
 State, Durr v., 53 Miss. 425 129 
 
 State, Durrah v., 44 Miss. 789 58, 86 
 
 State v. Dusenberry, 112 Mo. 277 89 
 
 State, Dutell v., 4 G. Greene (Iowa) 125 58 
 
 State, Dye v., 130 Ind. 87 115 
 
 State, Dyer v., 79 Tenn. 509 87 
 
 State v. Easter, 30 Ohio St. 542 80 
 
 State v. Easton, 113 Iowa 516 138 
 
 State v. Edens, 85 N. C. 522 62 
 State v. Edgerton, 69 N. W. 280 73, 124, 126 
 
 State, Edmonds v., 34 Ark. 720 66 
 
 State, Edson v., 32 So. 308 65 
 
 State v. Elkins, Meigs (Tenn.) 109 151 
 
 State v. Elliott, 98 Mo. 150 151 
 
 State, Ellis v., 92 Tenn. 85 87 
 
 State v. Elson, 45 Ohio St. 648 74 
 
 State, Engelman v., 2 Cart. (Ind.) 91 157 
 
 State, English v., 31 Fla. 340 147 
 
 State v. English, i Murphy (N. C.) 435 136 
 
 State v. Estes, 71 Tenn. 168 104 
 State v. Fasset, 16 Conn. 457 103, 118, 137, 143 
 
 State v. Fee, 19 Wis. 562 46
 
 TABLE OF CASES. x 
 
 MM 
 
 State v. Fellows, a Hayw. (N. C.) 3*> 143, MS 
 
 State v. Felter, 25 Iowa 67 73 
 
 State, Penalty v., 12 Ark. 630 85, 87 
 
 State v. Fertig, 98 Iowa 139 139 
 
 State, Fields v., 25 So. 726 150 
 
 State, Findley v., 61 Ala. 201 50, 56, 83 
 
 State, Finnegan v., 57 Ga, 427 89 
 
 State, Fisher v., 93 Ga. 309 77 
 
 State, Fitzgerald v., 4 Wis. 395 147 
 
 State v. Fitzhugh, 2 Ore. 227 65 
 
 State v. Fleming, 66 Me. 142 48 
 
 State v. Flint, 52 La. Ann. 62 66 
 
 State v. Flores, 33 Tex. 444 148 
 
 State v. Folke, 2 La. Ann. 744 93, 149 
 
 State, Foster v., 31 Miss. 421 93 
 
 State, Fout v., 3 Hayw. (Tenn.) 98 134 
 
 State, Fowler v., 100 Ala. 96 62 
 
 State v. Fowler, 52 Iowa 103 51, 85, 142 
 
 State v. Fox, 9 N. J. Law 244 91 
 
 State, Franklin v., 28 Ala. 9 157 
 
 State, Freel v., 21 Ark. 212 66, 161 
 
 State v. Freeman, 13 N. H. 488 149 
 
 State, Friar v., 3 How. (Miss.) 422 91 
 
 State v. Frizell, in N. C. 722 146 
 
 State v. Froiseth, 16 Minn. 313 51, 52, 124, 144, 145 
 
 State v. Furco, 51 La. Ann. 1082 70, 92, 124 
 
 State, Gabe v., i Eng. (Ark.) 540 136 
 
 State v. Gainus, 86 N. C. 632 156 
 
 State, Gardner v., 4 Ind. 632 152 
 
 State v. Gardner 88 Minn. 130 145 
 
 Stale v. Garhart, 35 Iowa 315 50, 51 
 
 State, Garret v., 17 Tenn. 389 104 
 
 State, Gay v., 49 S. W. 612 162 
 
 State, Geiger v., 25 Ohio Cir. Ct. Rep. 742 149 
 
 State, Germolgez v., 99 Ala. 216 85 
 
 State, Gerrish v., 53 Ala. 476 152 
 
 State v. Gibbs, 39 Iowa 318 64, 69, 119 
 
 State, Gibbs v., 45 N. J. Law 379 65 
 
 State v. Gillick, 7 Iowa 287 76, 79 
 
 State r. Gillick, 10 Iowa 98 68 
 
 State, Gilman v., \ Humph. (Tenn.) 59 137, 138 
 
 State v. Gilmore, 9 W. Va. 641 156 
 
 State, Gladden v., 12 Fla. 562 46, 160 
 
 State v. Glascow, 59 Md. 209 86 
 
 State, Glenn v., 31 Tena 19 104 
 
 State v. Glover, 3 G. Greene (Iowa) 249 156
 
 Ixii TABLE OF CASES. 
 
 PAOE 
 
 State v. Gonzales, 26 Tex. 197 127, 128, 134 
 
 State v. Goss, 74 Mo. 592 136 
 
 State v. Gouge, 80 Tenn. 132 91 
 
 State v. Gowen, 7 Eng. (Ark.) 62 157 
 
 State v. Grady, 84 Mo. 220 120, 132 
 
 State v. Graff, 97 Iowa 568 89 
 
 State, Grant v., 2 Tex. App. 163 69 
 
 State v. Granville, 34 La. Ann. 1088 149 
 
 State, Green v., 28 Miss. 687 87 
 
 State, Green v., 4 Pickle (Tenn.) 614 149 
 State, Green v., i Tex. App. 82 65, 66, 68 
 
 State v. Green, 66 Mo. 6 31, 45 
 
 State -v. Green, in Mo. 585 152 
 
 State v. Griffice, 74 N. C. 316 73 
 
 State v. Griffin, 38 La. Ann. 502 87 
 
 State v. Grimes, 50 Minn. 123 161 
 
 State v. Groome, 10 Iowa 308 149 
 
 State, Gross v., 2 Ind. 329 76 
 
 State, Groves v., 73 Ga. 205 130 
 
 State v. Guillory, 44 La. Ann. 317 64 
 
 State, Gunkle v., 6 Baxt. (Tenn.) 625 150 
 
 State v. Gurlagh, 76 Iowa 141 50 
 
 State v. Gut, 13 Minn. 341 71 
 State Hall v., 32 So. 750 119, 127, 128, 143 
 
 State v. Hamilton, 13 Nev. 386 120 
 State v. Hamlin, 47 Conn. 95 73, 74, 76, 85, 103, 119 
 
 State, Harding v., 22 Ark. 210 46 
 
 State, Harding v., i Tex. App. 556 156 
 
 State, Harper v., 42 Ind. 405 160 
 
 State, Harrall v., 26 Ala. 53 134 
 
 State, Harrell v ., 22 Tex. App. 692 46 
 
 State, Harriman v., 2 G. Greene (Iowa) 270 135 
 
 State v. Harris, 38 Iowa 242 73 
 
 State v. Harris, 7 N. J. Law 361 91 
 
 State v. Harris, 91 N. C. 656 152 
 
 State v. Harris, 97 N. W. 1093 78 
 
 State, Harris v., 13 So. 15 51 
 
 State v. Harrison, 19 Ark. 565 135 
 
 State, Harrison v., 44 Tenn. 195 104, no 
 
 State v. Hart, 29 Iowa 268 86 
 
 State v. Hart, 67 Iowa 142 162 
 
 State v. Hart, 15 Tex. App. 202 66, 68 
 
 State v. Hartley, 40 Pac. 372 147 
 
 State v. Hawkins, 10 Ark. 71 56 
 
 State v. Hawks, 56 Minn. 129 144 
 
 State v. Haynes, 54 Iowa 109 60, 64
 
 TABLE OF CASES. Ixiii 
 
 PAOB 
 
 State f. Haywood, 73 N. C. 437 58 
 
 State r. Haywood, 94 N. C. 847 87 
 
 State, Heacock v., 42 Ind. 393 134, 156 
 
 State, Head v., 44 Miss. 731 64, 86 
 
 State, Heath v., 101 Ind. 512 156 
 
 State v. Heaton, 56 Pac. 843 129 
 
 State v. Heaton, 23 W. Va. 773 156 
 
 State v. Henderson, 29 W. Va. 147 62 
 
 State v. Hensley, 7 Blackf. (Ind.) 324 64 
 State v. Herndon, 5 Blackf. (Ind.) 75 62, 66, 68, 73 
 
 State, Hess v., 73 Ind. 537 48 
 
 State, Hester v., 103 Ala. 83 52 
 
 State v. Hill, 35 S. E. 831 148, 149 
 
 State v. Hinckley, 4 Minn. 345 71 
 
 State v. Hinkle, 6 Iowa 380 69, 76, 78 
 
 State, Hinshaw v., 47 N. E. 157 120 
 
 State, Kite v., 9 Yerg. (Tenn.) 198 134 
 
 State v. Hoffpauer, 21 La. Ann. 609 68 
 
 State v. Hogan, 31 Mo. 342 151 
 
 State, Hogan v., 30 Wis. 428 156 
 
 State, Holcomb v., 31 Ark. 427 156 
 
 S.tate v. Holcombe, 86 Mo. 371 77 
 
 State, Hooker v., 56 Atl. 390 119 
 
 State, Horton v., 47 Ala. 58 87 
 
 State v. Horton, 63 N. C. 595 119, 147 
 
 State v. Howard, 10 Iowa 101 66, 69 
 
 State v. Hoyt, 13 Minn. 132 71 
 
 State, Hubbard v., 72 Ala. 164 136 
 
 State, Hudson v., i Blackf. (Ind.> 317 70, 85 
 State v. Hughes, i Ala. 655 72, 82, 136 
 
 State, Hughes v., 54 Ind. 95 54 
 
 State, Huling v., 17 Ohio St. 583 65, 68 
 
 State v. Hurt, 7 Mo. 321 136 
 
 State v. Ingalls, 17 Iowa 8 64 
 
 State v. Ivey, 100 N. C. 539 132 
 
 State, Jackson v., 102 Ala. 167 88 
 
 State, Jackson v., 64 Ga. 344 86 
 
 State, Jackson v., 76 Ga. 551 73 
 
 State, Jackson v., 4 Kan. 150 134 
 
 State, Jackson v., \i Tex. 261 62 
 
 State, Jackson v., 25 Tex. App. 314 160 
 
 State v. Jackson, 21 La. Ann. 574 33 
 State v. Jacobs, 6 Tex. 99 50, 68, 84, 89 
 
 State, James v., 41 Ark. 451 157 
 
 State v. Jeffcoat, 26 S. C. 114 68 
 
 State, Jenkins v., 35 Fla. 737 50, 120
 
 Ixiv TABLE OF CASES. 
 
 PACK 
 
 State, Jenkins v., 30 Miss. 408 156 
 
 State, Jetton v., ig Tenn. 192 84, 137 
 
 State, Johnson v., 24 Fla. 162 156 
 
 State, Johnson v., 62 Ga. 179 87 
 
 State, Johnson v., 23 Ind. 32 149 
 
 State, Johnson v., 33 Miss. 363 58, 68 
 
 State v. Johnson, 93 Mo. 73 152 
 
 State v. Joiner, 19 Mo. 224 136 
 
 State v. Jolly, 7 Iowa 15 157 
 
 State, Jones v., 18 Fla. 889 50 
 State, Jones v., 2 Blackf. (Ind.) 475 76, 82, 85 
 
 State, Jones v., n Ind. 357 152 
 
 State v. Jones, 8 - Rob. (La.) 616 61 
 
 State v. Jones, 42 Pac. 392 156 
 
 State, Joyner v., 78 Ala. 448 134, 138 
 
 State v. Justus, n Ore. 178 139 
 
 State v. Keating, 85 Md. 188 51 
 
 State, Keech v., 15 Fla. 591 46, 50 
 
 State, Keithler v., 10 Smedes & M. (Miss.) 192 134 
 State, Keitler v., 4 G. Greene (Iowa) 291 70, 71, 83, 84 
 
 State, Kemp v., n Tex. App. 174 71 
 
 State v. Keyes, 8 Vt. 57 33 
 
 State v. Kilcrease, 6 S. C. 444 137 
 
 State, Kilgore v., 74 Ala. i 50 
 
 State v. Kimball, 29 Iowa 267 140 
 State, King v., 5 How. (Miss.) 730 136, 137, 138 
 
 State v. King, 24 Pac. 265 44 
 
 State, Kirk v., 13 Srnedes & M. (Miss.) 406 135 
 
 State, Kitrol v., 9 Fla. 9 72 
 
 State, Koch v., 32 Ohio St. 353 78 
 
 State v. Kouhns, 103 Iowa 720 68, 81 
 
 State v. Kovolosky, 92 Iowa 498 128 
 
 State v. Krause, i Ohio N. P. 91 58 
 
 State v. Krider, 78 N. C. 481 146 
 
 State, Lacey v., 31 Tex. Cr. Rep. 78 73, 85 
 
 State v. Lamon, 10 N. C 175 87 
 
 State v. Lanier, 90 N. C. 714 144 
 
 State v. Larkin, n Nev. 314 85 
 
 State, Lascelles v., 90 Ga. 347 80 
 
 State v. Lauer, 41 Neb. 226 49 
 
 State, Laurent v., i Kan. 313 154, 156 
 
 State, Lawless v., 4 Lea (Tenn.) 173 155 
 
 State, Leathers v., 26 Miss. 73 46 
 
 State, Lee v., 69 Ga. 705 77, 80 
 
 State, Lee v., 45 Miss 114 85, 86 
 
 State v. Lee, 87 Tenn. 114 104
 
 TABLE OF CASES. IxV 
 
 State, Lennard v., 30 S. E. 780 145 
 
 State, Levy v., 6 Ind. 281 152 
 
 State v. Lewis, 38 La. Ann. 680 120, 142 
 
 State v. Lewis, 87 Tenn. 119 104 
 
 State, Lienberger v., 21 S. W. 603 64 
 
 State v. Lightbody, 38 Me. 200 48 
 
 State v. Lightfoot, 78 N. W. 41 150 
 
 State v. Ligon, 7 Port. (Ala.) 167 60 
 
 State v. Liles, 77 N. C. 496 62 
 
 State, Lindsay v., 24 Ohio Cir. Ct. Rep. I 144 
 
 State, Linehan v., 21 So. 497 65 
 
 State v. Lockett, 3 Heisk. (Tenn.) 274 134 
 
 State, Loeb v., 75 Ga. 258 72 
 
 State, Logan v., 50 Miss. 269 69 
 
 State v. Logan, 104 La. 254 150 
 State v. Logan, i Nev. 509 119, 143, 146 
 
 State, Long v., 103 Ala. 55 67 
 
 State, Long v., 46 Ind. 582 160 
 
 State, Lott v., 18 Tex. App. 627 46 
 
 State v. Love, 4 Humph. (Tenn.) 255 no, 132 
 
 State, Lucy v., 8 Mo. 134 136 
 
 State v. McBroom, 127 N. C. 528 150 
 
 State v. McCann, I Meigs (Tenn.) 91 135 
 
 State, McClary v., 75 Ind. 260 68, 86 
 
 State v. MfcCourtney, 6 Mo. 649 136 
 
 State, McCuller v., 49 Ala. 39 156 
 
 State, McGregg v., 4 Blackf. (Ind.) 101 134 
 
 State, McGuffie v., 17 Ga. 497 148, 149 
 
 State v. McNamara, 3 Nev. 70 49, 58 
 
 State v. McNeill, 93 N. C. 552 60, 147 
 
 State v. McNinch, 12 S. C. 89 80, 128 
 
 State v. MfcPherson, 87 N. W. 421 120 
 
 State, McQuillen v., 8 Smedes & M. (Miss.) 587 87 
 
 State, McTigue v., 63 Tenn. 313 73 
 
 State, McWaters t/., 10 Mo. 167 136 
 
 State v. Mkddox, i Lea (Tenn.) 671 81 
 
 State v. Magrath, 44 N. J. Law 227 149 
 
 State, Maher v., i Port. (Ala.) 265 48 
 
 State, Maher v., 3 Minn. 444 j\ 
 
 State, Maples v., 3 Heisk. ( Tenn.) 408 156 
 
 State v. Marshall, 74 N. W. 763 143 
 
 State, Martin v., 30 Neb. 507 151 
 
 State v. Martin, 2 Ired. (N. C.) 101 87 
 
 State v. Martin, 82 N. C. 672 58 
 
 State v. Marsh, 13 Kan. 596 58 
 
 State, Mason v., 81 S. W. 718 139
 
 TABLE OF CASES. 
 
 PAOB 
 
 State, Matthews v., 58 S. W. 86 162 
 
 State v. May, 50 Ind. 170 89 
 
 State, Medaris v., 10 Yerg. (Tenn.) 239 135 
 State, Meiers v., 56 Ind. 336 86, 88, 89 
 
 State v. Mellor, 13 R. I. 666 68 
 State, Mershon v., 51 Ind. 14 69, 85, 86 
 
 State v. Newherter, 46 Iowa 88 120 
 
 State v. Mickel, 65 Pac. 484 128 
 
 State v. Millain, 3 Nev. 409 77 
 
 State, Millar v., 2 Kan. 174 156 
 
 State, Miller v., 69 Ind. 284 68, 87 
 
 State, Miller v., 33 Miss. 356 46 
 
 State, Miller v., 28 So. 208 128 
 
 State v. Miller, 2 Blackf. (Ind.) 35 73 
 
 State v. Miller, 53 Iowa 84 51 
 
 State v. Miller, 95 Iowa 368 139 
 
 State, Mails v., 76 Md. 274 84 
 
 State v. Moles, 9 Mo. 694 136 
 
 State, Molett v., 33 Ala. 408 136 
 
 State, Montgomery v., 3 Kan. 263 50 
 
 State v. Mooney, 10 Iowa 506 51 
 
 State, Moore v., 13 Smedes & ML (Miss.) 259 135 
 
 State, Moore v., Si S. W. 48 156 
 
 State/ Morrison v., 41 Tex. 516 143 
 
 State, Mose v., 35 Ala. 421 156 
 
 State, Moses v., 58 Ala. 117 64 
 
 State v. Motley, 7 S. C. 327 62, 87 
 
 State, Mbyers v., n Humph. (Tenn.) 40 135 
 
 State, Murphy v., 86 Ala. 45 65 
 
 State v. Murphy, 47 Mo. 274 134 
 
 State v. Muzingo, Meigs (Tenn.) 112 156 
 
 State v. Newfane, 12 Vt. 422 78, 81 
 
 State, Newman v., 43 Tex. 525 161 
 
 State, Newman v., 14 Wis. 393 73 
 
 State, Newton v., 21 Fla. 53 50, 52 
 
 State, Nichols v., 46 Miss. 284 156 
 
 State, Nicholls v., 5 N. J. Law 539 48 
 
 State, Nixon v., 68 Ala. 535 49, 51 
 
 State, Noles v., 24 Ala. 672 33 
 
 State v. Nordstrom, 7 Wash. 506 33 
 
 State, Norris House v., 3 G. Greene (Iowa) 513 56 
 
 State v. Noyes, 87 Wis. 340 88 
 
 State, Nunn v., i Kelly (N. C.) 243 132 
 State, O'Brien v., 91 Ala. 16 89, 152 
 
 State, O'Byrne v., 51 Ala. 25 83, 89 
 
 State v. Offutt, 4 Blackf. (Ind.) 355 118
 
 TABLE OF CASES. 
 
 FAUB 
 
 State, Ogle v., 63 S. W. 1009 46 
 
 State, Oliver v., 66 Ala. 8 5* 
 State v. Osborne, 61 Iowa 330 65, 76, 79, 80 
 State, Ostrander v., 18 Iowa 435 45. 69, 88, 147 
 
 State v. Overstreet, 128 Mo. 470 89, 103 
 
 State, Owens v., 25 Tex. App. 552 72, 78 
 
 State v. Oxford, 30 Tex. 428 120 
 
 State, Palmore v., 29 Ark. 248 62, 70 
 
 State v. Parks, 21 La. Ann. 251 61, 87 
 
 State, Farmer v., 41 Ala. 416 89 
 
 State v. Parrish, 27 Tenn. 80 104, 150 
 
 State v. Pate, 67 Mo. 488 160 
 
 State, Patrick v., 16 Neb. 330 69 
 
 State, Peeples v., 35 So. 223 156 
 
 State, Perkins v., 92 Ala. 66 88 
 
 State, Perkins v., 4 Ind. 222 119 
 
 State v. Perry, 29 S. E. 384 45, 46, 75 
 
 State, Peter v., 3 How. (Miss.) 433 91, 135 
 
 State, Peters v., 98 Ala. 38 84 
 
 State, Peters v., u Tex. 762 48 
 
 State v. Peterson, 61 Minn. 73 132, 155 
 
 State v. Phillips, 2 Ala. 297 48 
 
 State, Phillips v., 68 Ala. 469 65 
 
 State v. Pierce, 8 Iowa 231 50 
 
 State v. Pierce, 90 Iowa 506 64 
 
 State, Pierce v., 12 Tex. 210 93 
 
 State, Pinson v., 23 Tex. 579 148 
 
 State, Pitner v., 23 Tex. App. 366 33 
 
 State, Pittman v., 25 Fla. 648 157 
 
 State, Pointer v., 89 Ind. 255 68 
 
 State, Pond v., 47 Miss. 39 156 
 State, Portis v., 23 Miss. 578 50, 83, 84, 85 
 
 State v. Powers, 59 S. C. 200 49 
 
 State, Prescott v., 19 Ohio 184 33 
 
 State, Pybos v., 3 Humph. (Tenn.) 49 45 
 
 State v. Quimby, 51 Me. 395 72 
 
 State, Rampey v., 83 Ala. 31 49, 50 
 
 State, Ramsey v., 21 So. 209 85 
 
 State v. Rand, 33 N. H. 216 87 
 
 State, Rawls v., 8 Smedes & M. (Miss.) 599 51 
 
 State v. Reed, 67 Me. 127 134 
 State, Reed v., i Tex. App. i 65, 68, 69, 71 
 
 State, Reeves v., 84 Ind. 116 156 
 
 State, Reich v., 53 Ga. 73 64 
 
 State v. Reid, 20 Iowa 413 69, ida 
 
 State v. Reinhart, 38 Pac. 822 152
 
 Ixviii TABLE OF CASES. 
 
 PAOB 
 
 State v. Reisz, 48 La. Ann. 1446 84 
 
 State, Reynolds v., II Tex. 120 134, 157 
 
 State, Rice v., 3 Kan. 141 44 
 
 State v. Richard, 50 La. Ann. 210 132 
 
 State, Richards v., 22 Neb. 145 115 
 
 State v. Rickey, 9 N. J. Law 293 49 
 
 State v. Rickey, 10 N. J. Law 83 64 
 
 State, Ridling v., 56 Ga. 601 91 
 
 State, Rippey v., 29 Tex. App. 37 157 
 
 State v. Roberts, n Mo. 510 136 
 
 State v. Roberts, 2 Dev. & Bat. (N. C.) 540 138 
 
 State, Robeson v., 50 Tenn. 266 104 
 
 State, Robinson v., 33 Ark. 180 156 
 
 State, Robinson v., 24 Tex. App. 4 148 
 
 State v. Robinson, 2 Lea (Tenn.) 114 143 
 
 State, Roby v., 74 Ga. 812 58 
 
 State, Rocco v., 37 Miss. 357 119 
 
 State v. Rock, 57 Pac. 532 90 
 
 State v. Rockafellow, 6 N. J. Law 332 62 
 
 State, Rodes v., 10 Lea (Tenn.) 414 135 
 
 State, Roe v., 2 So. 459 93 
 
 State v. Rogers, 37 Mo. 367 136 
 
 State v. Rohfrischt, 12 La. Ann. 382 150 
 
 State, Ross v., i Blackf. (Ind.) 390 71, 85 
 
 State v. Ross, 14 La. Ann. 364 115 
 
 State, Roth v., 3 Ohio Cir. Ct Rep. 59 73, 74 
 
 State, Rothschild v., 7 Tex. App. 519 128, 139 
 
 State, Rowan v., 30 Wis. 129 33 
 
 State v. Rowland, 36 La. Ann. 193 61, 87 
 
 State, Runnels v., 28 Ark, 121 51 
 
 State, Russell v., 33 Ala. 366 71 
 
 State, Russell v., 10 Tex. 288 93 
 
 State v. Russell, 90 Iowa 569 80 
 
 State v. Ruthven, 58 Iowa 121 69 
 
 State, Rutzell v., 15 Ark. 67 103 
 
 State v. Salge, 2 Nev. 321 134 
 
 State, Sanders v., 55 Ala. 183 87 
 
 State -v. Sandoz, 37 La. Ann. 376 156 
 
 State v. Schieler, 37 Pac. 272 84 
 
 State v. Scott, 25 Ark. 107 135 
 
 State v. Seaborn, 15 N. C. 305 86, 87 
 
 State v. Sears, 86 Mo. 169 136 
 
 State v. Sears, 61 N. C. 146 68 
 
 State v. Sharp, no N. C. 604 80 
 
 State, Shattuck v., n Ind. 473 127, 128 
 State v. Shelton, 64 Iowa 333 76, 78, 147
 
 TABLE OF CASES. Ixix 
 
 MQH 
 
 State v. Shippey, 10 Minn. 223 149 
 
 State, Shope r. 32 S. E. 140 80 
 
 State, Shropshire v., 12 Ark. 190 87 
 
 State v. Shumpert, i S. C. 85 33 
 
 State v. Silvers, 82 Iowa 714 5 
 
 State, Simms v., 60 Ga. 145 119 
 
 State, Simpson v., 34 S. E. 204 80 
 
 State, Sims, v., 45 S. W. 705 139 
 
 State, Skinner, v., 30 Ala. 524 152 
 
 State v. Skinner, 34 Kan. 256 67 
 
 State v. Smallwood, 68 Mo. 192 87 
 
 State, Smith v., 19 Conn. 493 122 
 
 State, Smith v., 90 Ga. 133 58 
 
 State, Smith v., I Humph. (Tenn.) 396 130 
 
 State, Smith v., i Tex. App. 133 68 
 State, Smith v., ig Tex. App. 95 84, 160 
 
 State f. Smith, 88 Iowa 178 52 
 
 State v. Smith, 67 Me. 328 49 
 State v. Smith, 80 N. C. 410 62, 63 
 
 State v. Smith, 38 S. C. 270 49 
 
 State v. Smith, 19 Tenn. 99 104 
 
 State v. Sopher, 35 La. Ann. 975 149 
 
 State, Sparrenberger v., 53 Ala. 481 142 
 State, Spigener v., 62 Ala. 383 72, 119 
 
 State, Spratt v., 8 Mo. 247 150 
 
 State v. Squire, 10 N. H. 558 165 
 
 State v. Staley, 71 Tenn. 565 104 
 
 State v. Stanford, 20 Ark. 145 135 
 
 St?te, Stanley v., 88 Ala. 154 157 
 
 State, Stanley v., 16 Tex. 557 62 
 
 State v. Stedman, 7 Port. (Ala.) 495 149 
 
 State, Stevens v., 3 Ohio St. 453 89 
 
 State, Stevenson v., 69 Ga. 68 58 
 
 State, Stewart v., 98 Ala. 70 49 
 
 State, Stewart v., 13 Ark. 720 87 
 State, Stewart v., 24 Ind. 142 120, 124, 142 
 
 State v. Stewart, 45 La. Ann. 1164 100 
 
 State, Stokes v., 24 Miss. 621 88 
 
 State, Stoneking v., 24 So. 47 65 
 
 State, Stout v., 93 Ind. 150 89 
 
 State v. Stowe, 132 Mo. 199 152 
 
 State, Strange v., no Ind. 354 151 
 State, Straughan v ., 16 Ark. 37 46, 52 
 
 State v. Stuart, 35 La. Ann. 1015 * 92 
 
 State, Studstill v., 7 Ga. 2 149 
 
 State r. Stunkle, 41 Kan. 456 72
 
 1XX TABLE OF CASES. 
 
 PAGE 
 
 State v. Swift, 14 La. Ann. 827 56 
 
 State v. Swim, 60 Ark. 587 5<> 
 
 State, Sylvester v., 72 Ala. 201 54 
 
 State v. Symonds, 36 Me. 128 Si 
 
 State v. Taggart, 38 Me. 298 149 
 
 State v. Tankersley, 6 Lea (Tenn.) 582 135 
 
 State v. Taylor, 43 La. Ann. 1131 58 
 
 State v. Taylor, 171 Mo. 465 71 
 
 State, Teas v., 7 Humph. (Tenn.) 174 134 
 
 State, Terrell v., 9 Ga. 58 87 
 
 State v. Terry, 30 Mo. 368 118 
 
 State, Terry v., 15 Tex. App. 66 143 
 State v. Texada, 19 La. Ann. 436 66, 68, 90 
 
 State v. Thacker, 38 S. E. 539 150 
 
 State, Thayer v., 138 Ala. 39 140 
 
 State v. Thibodeaux, 48 La. Ann. 600 63 
 
 State, Thomas v., 6 Mo. 457 134 
 
 State v. Thomas, 19 Minn. 484 68 
 
 State v. Thomas, 61 Ohio St. 444 84, 85 
 
 State, Thomason v., 2 Tex. App. 550 68 
 
 State, Tilly v., 21 Fla. 242 151 
 
 State v. Tilly, 8 Baxt. (Tenn.) 381 139 
 
 State v. Tinney, 26 La. Ann. 460 90 
 
 State, Towle v., 3 Fla. 202 136 
 
 State v. T'rauger, 77 N. W. '336 144 
 
 State, Trevinio v., 27 Tex. App. 372 84, 162 
 
 State v. Tucker, 20 Iowa 508 145 
 
 State, Turk v., 7 Ham. (Ohio) part 2, p. 240 146, 147 
 
 State v. Turlington, 102 Mo. 642 124, 126 
 
 State, Turner, v., 78 Ga. 174 46, 49, 69 
 
 State, Ulmer v., 61 Ala. 208 57 
 
 State, Ulmer v., 14 Ind. 52 160 
 
 State v. Underwood, 28 N. C. 96 66 
 
 State v. Valere, 39 La. Ann. 1060 150 
 
 State v. Van Auken, 68 N. W. 454 49 
 
 State, Van Hook v., 12 Tex. 252 65, 68 
 
 State v. Vincent, I Car. Law R. 493 134 
 
 State v. Vincent, 36 La. Ann. 770 115 
 
 State v. Vincent, 91 Md. 718 86 
 
 State v. Vincent, 91 Mo. 662 156 
 
 State v. Vogel, 22 Wis. 471 87 
 
 State v. Walcott, 21 Conn. 272 103 
 
 State, Wall v., 23 Ind. 150 156 
 
 State, Wallis v., 54 Ark. 611 46, 84, 85 
 
 State, Ward v., 22 Ala. 16 134 
 
 State, Ward v., 2 Mo. 120 103, 104
 
 TABLE OF CASES. 
 
 PAUB 
 
 State v. Ward, 60 Vt. 142 74, 84, 85, 86 
 
 State v. Warner, 165 Mo. 399-4*3 65, 130 
 
 State, Warner v., 81 Tenn. 52 104 
 
 State, Washington v., 63 Ala. 189 142 
 
 State v. Washington, 33 La. Ann. 896 87 
 
 State v. Washington, 28 Tenn. 626 87 
 
 State, Wassels v., 26 Ind. 30 149 
 
 State, Watkins v., yj Ark. 370 134 
 
 State v. Watson, 31 La. Ann. 379 68 
 
 State v. Watson, 34 La. Ann. 669 139 
 
 State v. Watson, 104 N. C. 735 46 
 
 State, Wattingham v., 5 Sneed (Tenn.) 64 135 
 
 State, Watts v., 57 Atl. 542 155 
 
 State, Watts v., 22 Tex. App. 572 84, 160 
 
 State, Webb v., 40 S. W. 989 71 
 
 State v. Webster, 30 Ark. 166 152 
 
 State, Welch v., 68 Miss. 341 101 
 
 State v. Welch, 33 Mo. 33 64, 68 
 
 State, Wells v., 94 Ala. I 66 
 
 State, Wells i:, 21 Tex. App. 594 46 
 
 State v. Wells, 46 Iowa 662 33 
 
 State, Welsh v., 96 Ala. 92 49 
 
 State, West v., 6 Tex. App. 485 92 
 
 State, Weston v., 63 Ala. 155 65 
 
 State, Wheatley v., 114 Ga. 175 133 
 
 State v. Whipple, 57 Vt. 637 115 
 
 State, White v., 93 Ga. 47 148 
 
 State v. White, 88 N. C. 698 137 
 
 State v. White, 17 Tex. 242 65, 68 
 
 State, Whiting v., 48 Ohio St. 220 132, 149 
 
 State v. Whitney, 7 Ore. 386 129 
 
 State, Whitney v., 59 S. W. 895 67 
 
 State, Wilburn v., 21 Ark. 198 52 
 
 State v. Wilburne, 2 Brevard (S. C) 296 148 
 State v. Wilcox, 104 N. C. 847 68, 76, 80, 81 
 
 State, Wilcox v., 34 S. W. 958 152 
 
 State v. Wilhite, 11 Humph. (Tenn.) 602 148 
 State v. Will, 97 Iowa 58 119, 124, 127 
 
 State, Williams v., 61 Ala. 33 56 
 
 State, Williams v., 60 Ga. 88 86 
 
 State, Williams v., 69 Ga. n 66, 77 
 
 State, Williams v., 9 Mo. 270 136 
 
 State v. Williams, 5 Port. (Ala.) 130 59 
 
 State v. Williams, 107 La. 789 134 
 
 State v. Williams, 35 S. C. 344 62, 147 
 
 State v. Williamson, 106 Mo. 162 77
 
 Ixxii TABLE OF CASES. 
 
 PAGB 
 
 State v. Williamson, 4 Weekly Law Bulletin (Ohio) 279 151 
 
 State, Willingham v., 21 Fla. 761 58 
 
 State, Wills v., 69 Ind. 286 62 
 
 State v. Wilmoth, 63 Iowa 380 134 
 State, Wilson v., i Blackf. (Ind.) 428 122, 123 
 State, Wilson v., 70 Miss. 595 101, 139 
 
 State, Wilson v., 51 S. W. 916 129 
 
 State v. Wilson, 85 Mo. 134 84 
 
 State v. Wilson, 2 McCord (S. C.) 393 81 
 State v. Wiltsey, 103 Iowa 54 88, 90 
 
 State v. Wingate, 4 Ind. 193 160 
 
 State, Winten v., 90 Ala. 637 152 
 
 State v. Wood, 84 N. W. 503 139 
 
 State, Woodsides v., 2 How. (Miss.) 655 91 
 
 State, Woodward v., 33 Fla. 508 86 
 
 State, Workman v., 36 Tenn. 425 88 
 
 State, Wright v., 42 Ark. 94 87 
 
 State v. Wright, 53 Me. 328 72 
 
 State, Zimmerman v., 4 Ind. App. 583 149 
 
 Stedman, State v., 7 Port. (Ala.) 495 149 
 
 Stegala, Com v., 8 Ky. Law Rep. 142 157 
 
 Stern, People v., 68 N. Y. Sup. 732 142 
 
 Stevens v. State, 3 Ohio St. 453 89 
 
 Stevenson v. State, 69 Ga. 68 58 
 
 Stewart, State v., 45 La. Ann. 1164 100 
 
 Stewart v. State, 98 Ala. 70 49 
 
 Stewart v. State, 13 Ark. 720 87 
 Stewart v. State, 24 Ind. 142 120, 124, 142 
 
 Stokes v. State, 24 Miss. 621 88 
 
 Stone, Com. v., 105 Mass. 469 134 
 
 Stone v. People, 2 Scam. (111.) '326 161 
 
 Stoneking v. State, 24 So. 47 65 
 
 Stout v. State, 93 Ind. 150 89 
 
 Stowe, State v., 132 Mo. 199 152 
 
 Strange v. State, no Ind. 354 151 
 Straughan v. State, 16 Ark. 37 46, 52 
 
 Strong, People v., i Abb. Prac. Rep. N. S. (N. Y.) 244 142 
 
 Strother, Com. v., i Va. Cas. 186 78 
 
 Stuart, People v., 4 Calif. 218 143 
 
 Stuart, State v., 35 La. Ann. 1015 92 
 
 Studstill v. State, 7 Ga. 2 149 
 
 Stunkle, State v., 41 Kan. 456 72 
 
 Summerhayes, In re, 70 Fed. Rep. 769 165 
 
 Superior Court, Bruner v., 92 Calif. 239 59 
 
 Superior Court, Kalloch v., 56 Calif. 229 33 
 
 Sutton, Johnstone v., i Term. Rep. 513-14 167
 
 TABLE OF CASES, Ixxiii 
 
 MM 
 
 Swift, State v., 14 La. Ann. 827 5<5 
 
 Swim, State v., 60 Ark. 587 50 
 
 Sylvester v. State, 72 Ala. 201 54 
 
 Symonds, State v., 36 Me. 128 51 
 
 Taggart, State v., 38 Me. 298 149 
 
 Talton v. Mayes, 163 U. S. 376 33 
 
 Tankersley, State v., 6 Lea (Tenn.) 582 U5 
 
 Taylor, Com. v., 12 Pa. C. C. 326 114 
 
 Taylor, State v., 43 La. Ann. 1131 58 
 
 Taylor, State v., 171 Mo. 465 7* 
 
 Teas v. State, 7 Humph. (Tenn.) 174 134 
 
 Tenorio v. Territory, I N. M. 279 135 
 
 Terrell v. State, 9 Ga. 58 87 
 
 Territory v. Armijo, 37 Pac. 1117 87 
 
 Territory v. Barrett, 42 Pac. 66 87 
 
 Territory v. Earth, 15 Pac. 673 83, 84 
 
 Terrritory, Chartz v., 32 Pac. 166 50 
 
 Territory v. Clayton, 8 Mont. I 64 
 
 Territory v. Clayton, 19 Pac. 293 69 
 
 Territory, Cook v., 4 Pac. 887 65, 68 
 
 Territory v. Corbett, 3 Mont. 50 103 
 
 Territory v. Harding, 6 Mont. 323 64 
 
 Territory, Harland v., 13 Pac. 453 63 
 
 Territory v. Hart, 7 Mont. 489 119 
 
 Territory v. Hart, 14 Pac. 768 82, 85 
 
 Territory v. Ingersoll, 3 Mont. 454 7* 
 
 Territory, Parker v., 52 Pac. 361 126 
 
 Territory v. Pendry, 22 Pac. 760 143 
 
 Territory v. Romero, 2 N. Mex. 474 87 
 
 Territory, Rumsey v., 21 Pac. 152 63 
 
 Territory v. Staples, 26 Pac. 166 139 
 
 Territory, Tenorio v., I N. M. 279 135 
 
 Territory, Watt v., l Wash. T. 409 50 
 
 Territory, Yelm Jim v., i Wash. T. 63 50, 88 
 
 Territory v . Young, 2 N. Mex. 93 65 
 
 Terry, State v., 30 Mo. 368 118 
 
 Terry v. State, 15 Tex. App. 66 143 
 Terry, United States v., 39 Fed. Rep. 355 103, 119, 128, 155 
 Texada, State v., 19 La. Ann. 436 66, 68, 90 
 Texas, Carter v., 177 U. S. 442 67, 68, 69, 86 
 
 Thacker, State r., 38 S. E. 539 150 
 
 Thayer v. People, 2 Doug. (Mich.) 417 70 
 
 Thayer v. State, 138 Ala. 39 140 
 
 'ihe Poulterer's Case, 9 Co. 55 b. 117 
 
 Thibodeaux, State v., 48 La. Ann. 600 63 
 
 Thomas v. Com., 2 Robinson, (Va.) 795 118
 
 Ixxiv TABLE OF CASES. 
 
 PAGE 
 
 Thomas, State v., 19 Minn. 484 68 
 
 Thomas, State v., 61 Ohio St. 444 84, 85 
 
 Thomas v. State, 6 Mo. 457 134 
 
 Thomason, v. State, 2 Tex. App. 550 68 
 
 Thompkins, United States v., 28 Fed. Cas. 89 no, 131 
 
 Thompson v. Com., 20 Gratt. (Va.) 724 150 
 
 Thompson v. Com., 88 Va. 45 135 
 
 Thompson, People v., 81 N. W. 344 120 
 
 Thornell v. People, n Colo. 305 156 
 
 Thornton, Ashford v., i B. & Aid. 405 13 
 
 Thornton v. Marshall, 92 Ga. 548 167 
 
 Thorpe v. People, 3 Utah 441 49 
 
 Thurston, People v., 5 Calif. 69 45 
 
 Tillery, In re, 43 Kan. 188 90 
 
 Tilly v. State, 21 Fla. 242 151 
 
 Tilly, State v,, 8 Baxt. (Tenn.) 381 139 
 
 Tinder, People v., 19 Calif. 539 105 
 
 Tinney, State v., 26 La. Ann. 460 90 
 
 Towle v. State, 3 Fla. 202 136 
 
 Towles, Com v., 5 Leigh (Va.) 743 130 
 
 Trauger, People v,, 77 N. W. 336 144 
 
 Trevinio v. State, 27 Tex. App. 372 84, 162 
 
 Tucker, In re, 8 Mass. 286 77 
 
 Tucker, State v., 20 Iowa 508 145 
 
 Turk v. State, 7 Hammond (Ohio) part 2, p. 240 146, 147 
 
 Turlington, State v., 102 Mo. 642 124, 126 
 
 Turner v. State, 78 Ga. 174 46, 49, 69 
 
 Turns v. Com., 47 Mass. 224 . 89 
 
 Turpen v. Booth, 56 Calif. 65 167 
 
 Turpin, Jones v., 6 Heisk. (Tenn.) 181 119 
 
 Twitchell', Com. v., \ Brews. (Pa.) 551 120, 128 
 
 Twitchell v .Com., 7 Wall. (U. S.) 321 33 
 
 Ullman v. Abrams, 72 Ky. 738 167 
 
 Ulmer v. State, 61 Ala. 208 57 
 
 Ulmer v. State, 14 Ind. 52 . 160 
 
 Underwood, State v., 28 N. C. 96 66 
 
 United States, Agnew v., 165 U. S. 36 69, 85, 86 
 
 United States v. Ambrose, 3 Fed. Rep. 283 55 
 
 United States v. Antz, 16 Fed. Rep. 119 66 
 
 United States v. Ay res, 46 Fed. Rep. 651 56 
 
 United States v. Bates, 24 Fed. Cas. 1042 153 
 
 United States v. Belvin, 46 Fed. Rep. 381 77, 90 
 
 United States v. Benson, 31 Fed. Rep. 896 78 
 
 United States v. Blodgett, 30 Fed. Cas. 1157 69, 85, 103 
 
 United States v. Blodgett, 35 Ga. 336 68, 85 
 
 United States v. Brady, 3 Cr. Law Mag. 69 33
 
 TABLE OF CASES. 
 
 PAGE 
 
 United States r. Brown, 24 Fed. Cas. 1273 145, 146 
 United States v. Aaron Burr, 25 Fed. Cas. 55 74, 76, 82, 125, 143 
 
 United States v. Butler, 25 Fed. Cas. 213 69, 156 
 
 United States, Caha. v., 152 U. S. 211 154 
 
 United States v. Charles, 25 Fed. Cas. 409 118 
 
 United States, Clark v., 19 App. D. C. 295 90 
 
 United States v. Clark, 46 Fed Rep. 633 74 
 
 United States, Clawson v., 114 U. S. 477 82 
 
 United States v. Clune, 62 Fed. Rep. 798 63, 74, 76 
 
 United States v. Cobban, 127 Fed. Rep. 713 127, 128, 142 
 
 United States v. Coolidge, 25 Fed. Cas. 622 138, 146 
 
 United States, Crowley v., 194 U. S. 461 73, 74 
 
 United States v. Dulany, 25 Fed. Cas. 23 135 
 
 United States v. Eagan, 30 Fed. Rep. 608 56, 77, 86 
 
 United States v. Edgerton, 80 Fed. Rep. 374 128, 139, 145 
 
 United States v. Elliott, 25 Fed. Cas. 1003 148 
 
 United States v. Farrington, 5 Fed. Rep. 343 119, 120, 155 
 
 United States, Fisher v., 31 Pac. 195 86 
 
 United States, Frisbie v., 157 U. S. 160 148, 151 
 
 United States v. Fuers, 25 Fed. Cas. 1223 no 
 
 United States v. Gale, 109 U. S. 65 63, 65, 69, 86 
 
 United States v. Greene, 113 Fed. Rep. 683 55, 67 
 United States v. Hammond, 26 Fed. Cas. 99 61, 63, 69, 73, 87 
 
 United States, Harless v., i Morris (Iowa) 169 81 
 
 United States v. Helriggle, 26 Fed Cas. 258 135 
 
 United States v. Hill, 26 Fed. Cas. 315 131 
 
 United States v. Hollinsberry, 26 Fed. Cas. 345 135 
 
 United States v. Hunter, 15 Fed. Rep. 712 133, 143 
 
 United States v. Jamesson, 26 Fed. Cas. 585 135 
 United States v. Jones, 31 Fed. Rep. 725 69, 73, 76, 80, 86 
 
 United States v. Jones, 69 Fed. Rep. 973 83, 143 
 
 United States v. Kilpatrick, 16 Fed. Rep. 765 120, 142, 165 
 
 United States v. Lawrence, 26 Fed. Cas. 886 103 
 
 United States v. Laws, 26 Fed Cas. 892 151 
 
 United States v. Levally, 36 Fed. Rep. 687 148, 151 
 
 United States v. Lloyd, 26 Fed. Cas. 986 135 
 
 United States v. McAvoy, 26 Fed. Cas. 1044 127, 134 
 
 United States v. McMahon, 26 Fed. Cas. 1131 64 
 
 United States, Mackin v. 117 U. S. 328 33 
 
 United States v. Madden, 26 Fed Cas. 1138 131 
 
 United States v. Martin, 50 Fed. Rep. 918 153 
 
 United States v. Mundell, 27 Fed. Cas. 23 ' 135 
 
 United States v. Nagle, 27 Fed. Cas. 68 134 
 
 United States v. Palmer, 27 Fed. Cas. 410 69, 78, 103 
 
 United States v. Plumer, 27 Fed. Cas. 561 148 
 
 United States v. Porter, 27 Fed. Cas. 595 119
 
 TABLE OF CASES. 
 
 PAOB 
 
 United States v. Reed, 27 Fed. Cas. 727 48, 55, 66, 74, 119, 123, 142 
 
 United States v. Reeves, 27 Fed. Cas. 750 63, 69, 74, 86, 122 
 
 United States, Reynolds v., 98 U. S. 145 45 
 
 United States v. Reynolds, i Utah 226 76 
 
 United States v. Richardson, 28 Fed. Rep. 61 55, 69, 86 
 
 United States v. Riley, 74 Fed. Rep. 210 152 
 
 United States v. Rondeau, 16 Fed. Rep. 109 55, 69 
 
 United States v. Sandford, 27 Fed. Cas. 952 135 
 
 United States v. Shackelford, 27 Fed. Cas. 1037 135 
 
 United States v. Shepard, 27 Fed. Cas. 1056 113, 115, 135 
 
 United States v. Simons, 46 Fed. Rep. 65 139, 150 
 
 United States v. Smith, 27 Fed. Cas. 1186 145 
 
 United States v. Smith, 40 Fed. Rep. 755 115 
 
 United States, Stanley v., 33 Pac. 1025 65 
 United States v. Terry, 39 Fed. Rep. 355 103, 119, 128, 155 
 
 United States v. Tompkins, 28 Fed. Cas. 89 no, 131 
 
 United States v. Upham, 43 Fed. Rep. 68 152 
 
 United States v. Watkins, 28 Fed. Cas. 419 126 
 
 United States v. White, 28 Fed. Cas. 572 73, 76 
 
 United States v. White, 28 Fed. Cas. 588 103, 141 
 
 United States v. Williams, 28 Fed. Cas. 666 73, 77 
 
 United States v. Wilson, 28 Fed. Cas. 725 88 
 
 United States, Wolfson v., 101 Fed. Rep. 430 69, 86 
 
 Upham, United States v., 43 Fed. Rep. 68 152 
 
 Usner, Com. v., 7 Lane. (Pa.) 57 151 
 
 Valere, State v., 39 La. Ann. 1060 150 
 
 Valsalka, Cora, v., 181 Pa. 17 66, 67 
 
 Van Auken, State v., 68 N. W. 454 49 
 
 Van Hook v. State, 12 Tex. 252 65, 68 
 
 Vincent, State v., i Car. Law R. 493 134 
 
 Vincent, State v., 36 La, Ann. 770 115 
 
 Vincent, State -v., 91 Md. 718 86 
 
 Vincent, State v., 91 Mo. 662 156 
 
 Virginia v. Gordon, 28 Fed. Cas. 1224 119 
 
 Vogel, State v., 22 Wis. 471 87 
 
 Wadley v. Com., 35 S. E. 452 143 
 
 Wadlin, In re, n Mass. 142 51 
 
 Walcott, State v., 21 Conn. 272 103 
 
 Walker v. People, 22 Colo. 415 115 
 
 Wall v. State, 23 Ind. 150 156 
 
 Wallis -v. State, 54 Ark. 6n 46, 84, 85 
 
 Walters, Com. v., 6 Dana (Ky.) 290 148, 150 
 
 Ward v. State, 22 Ala. 16 134 
 
 Ward v. State, 2 Mo. 120 103, 104 
 Ward, State v., 60 Vt. 142 74, 84, 85, 86 
 
 Warner, State v., 165 Mo. 399-413 65, 130
 
 
 TABLE OF CASES. 
 
 PAOB 
 
 Warner r. State, 81 Tenn. 52 104 
 
 Warren, People v., 109 N. Y. 615 112, 153 
 
 Warrington, Granger v., 8 III. 299 120 
 
 Washington v. State, 63 Ala. 189 142 
 
 Washington, State v., 33 La. Ann. 896 87 
 
 Washington, State v., 28 Tenn. 626 87 
 
 Wassels v. State, 26 Ind. 30 149 
 
 Watkins v. State, 37 Ark. 370 134 
 
 Watkins, United States v., 28 Fed. Cas. 419 126 
 
 Watson, Bennett v., 3 M. & S. i 133 
 
 Watson v. Hall, 46 Conn. 204 12 
 
 Watson, State v., 31 La. Ann. 379 68 
 
 Watson, State v., 34 La. Ann. 669 139 
 
 Watson, State v., 104 N. C. 735 46 
 
 Wattingham v. State, 5 Sneed (Tenn.) 64 135 
 
 Watt v. Territory, 4 Wash. T. 409 50 
 
 Watts v. State, 57 Atl. 542 155 
 
 Watts v. State, 22 Tex. App. 572 84, 160 
 
 Webb v. State, 40 S. W. 989 71 
 
 Webster's Case, 5 Greenl. (Me.) 432 150 
 
 Webster, State v., 30 Ark. 166 152 
 
 Welch v. State, 68 Miss. 341 101 
 
 Welch, State v., 33 Mo. 33 64, 68 
 
 Wells v. Com., 15 Ky. Law Rep. 179 147 
 
 Wells v. State, 94 Ala. i 66 
 
 Wells, State v., 46 Iowa 662 33 
 
 Wells v. State, 21 Tex. App. 594 46 
 
 Welsh v. State, 96 Ala. 92 49 
 
 West v. State, 6 Tex. App. 485 92 
 
 Weston v. State, 63 Ala. 155 65 
 
 Wetherold, Com. v., 2 Clark (Pa.) 476 ill 
 
 Wheatley v. State, 114 Ga. 175 133 
 
 Whipple, State v., 57 Vt 637 115 
 
 Whitaker, Com. v., 25 Pa. C. C. Rep. 42 no 
 
 White v. Com., 29 Gratt. (Va.) 846 149 
 
 White, People v., 81 111. 333 160 
 
 White v. State, 93 Ga. 47 148 
 
 White, State v., 88 N. C. 698 137 
 
 White, State v., 17 Tex. App. 242 65, 68 
 
 White, United States v., 28 Fed. Cas. 572 73, 76 
 
 White, United States v., 28 Fed. Cas. 588 103, 141 
 
 Whitehead r. Com., 19 Gratt. (Va.) 640 66 
 
 Whiting v. State, 48 Ohio St. 220 132, 149 
 
 Whitney, State v., 7 Ore. 386 129 
 
 Whitney v. State, 59 S. W. 895 67 
 
 Wilburn v. State, 21 Ark. 198 52
 
 Ixxviii TABLE OF CASES. 
 
 PAOB 
 
 Wilburne, State v., 2 Brevard (S. C) 296 148 
 Wilcox, State v., 104 N. C. 847 68, 76, 80, 81 
 
 Wilcox v. State, 34 S. W. 958 152 
 
 Wildman, Ex Parte, 29 Fed. Cas. 1232 33 
 
 Wilhite, State v., n Humph. (Tenn.) 602 148 
 Will, State v., 97 Iowa 58 119, 124, 127 
 
 Williams, State v., 5 Port. (Ala.) 130 59 
 
 Williams, State v., 107 La. 789 134 
 
 Williams, State v., 35 S. C. 344 62, 147 
 
 Williams v. State, 61 Ala. 33 56 
 
 Williams v. State, 60 Ga. 88 86 
 
 Williams v. State, 69 Ga. n 66, 77 
 
 Williams v. State, 9 Mb. 270 136 
 
 Williams, United States v., 28 Fed. Cas. 666 73, 77 
 
 Williamson, State v., 106 Mo. 162 77 
 
 Williamson, State v., 4 Weekly Law Bulletin (Ohio) 279 151 
 
 Willingham v. State, 21 Fla. 761 58 
 
 Willis, People v., 52 N. Y. Sup. 808 144 
 
 Wills v. State, 69 Ind. 286 62 
 
 Wilmoth, State v., 63 Iowa 380 134 
 
 Wilson, Com. v., 2 Chester Co. Rep. (Pa.) 164 no 
 
 Wilson, Com. v., 9 Pa. C C.Rep. 24 138 
 
 Wilson, Ex Parte, 114 U. S. 417 33, 115 
 Wilson, In re, 140 U. S. 575 46, 47, 56 
 
 Wilson, Levy v., 69 Calif. 105 50, 58 
 
 Wilson v. People, 3 Colo. 325 60, 68 
 
 Wilson, State v., 85 Mo. 134 84 
 
 Wilson, State v., 2 McCord (S. C.) 393 8r 
 
 Wilson v. State, i Blackf. (Ind.) 428 122, 123 
 
 Wilson v. State, 70 Miss. 595 101, 139 
 
 Wilson v. State, 51 S.W. 916 129 
 
 Wilson, United States v., 28 Fed. Cas. 725 88 
 
 Wiltsey, State v., 103 Iowa 54 88, 90 
 
 Winant, People v., 53 N. Y. Sup. 695 146 
 
 Windham, King v., 2 Keble 180 164 
 
 Wingate, State v., 4 Ind. 193 160 
 
 Winter v. Muscogee Railroad Co., n Ga, 438 50, 51 
 
 Wintermute, People v., 46 S. W. 694 65 
 
 Winten v. State, 90 Ala. 637 152 
 
 Wolfson v. United States, 101 Fed. Rep. 430 69, 86 
 
 Wood, Com. v., 2 Cush. (Miss.) 149 46 
 
 Wood, Jackson v., 2 Cow. (N. Y.) 819 33 
 
 Wood, State v., 84 N. W. 503 139 
 
 Woods, Com. v., 10 Gray (Mass.) 477 132, 155 
 
 Woodsides v. State, 2 How. (Miss.) 655 91 
 
 Woodward v. State, 33 Fla. 508 86
 
 TABLE OF CASES Ixxix 
 
 PAOB 
 
 Woodward, Com. v., 157 Mass. 516 76 
 
 Workman v. State, 36 Tenn. 425 88 
 
 Wortham v. Com., 5 Randolph (Va.) 669 135 
 
 Wray, Res v., 3 Dall. (Pa.) 490 34 
 
 Wright, Com. v., 79 Ky. 22 67 
 
 Wright v. State, 42 Ark. 94 87 
 
 Wright, State v., 53 Me. 328 72 
 
 Yates v. People, 38 111. 527 91, 151 
 
 Yelm Jim v. Territory, I Wash. T. 63 50, 88 
 
 Yost v. Com., 5 Ky. Law Rep. 935 152 
 
 Young, People v., 31 Calif. 563 118, 121 
 
 Young, Territory v., 2 N. Mlex. 93 65 
 
 Ziegler v. Com., 22 W. N. C. (Pa.) m 120 
 
 Zillafrow, Com. v., 207 Pa. 274 53, 58 
 
 Zimmerman v. State, 4 Ind. App. 583 149
 
 THE GRAND JURY 
 PART I 
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 
 
 The grand jury is an institution of English-speaking coun- 
 tries, of historic interest by reason of the obscurity surround- 
 ing its origin, its gradual development, and the part it has 
 played in some of the most stirring events in the history of the 
 Anglo-Saxon race; of political interest by its effectual protec- 
 tion of the liberty of the subject from the arbitrary power of 
 the government; of legal interest in that its power and action 
 is utterly repugnant to "the experience and theory of English 
 law." 1 It has been extravagantly praised as the "security of 
 Englishmen's lives," 2 the conserver of his liberties, 3 and the 
 noblest check upon the malice and oppression of individuals 
 and states; 4 it has been bitterly assailed as "purely mischiev- 
 ous" 6 and a "relic of barbarism." 6 
 
 The origin of the grand jury has given rise to protracted dis- 
 cussion on the part of learned writers and has been productive 
 of widely differing conclusions. Some have claimed to find 
 traces of the institution among the Athenians, 7 but if such an 
 institution ever existed in Athens it had become extinct before 
 
 1 An Essay on the Law of Grand Juries, (E. Ingersoll, Philadelphia, 
 1849). 
 
 2 The Security of Englishmen's Lives, etc., (Lord Somers, London, 
 1694). 
 
 3 4 Bl. Com. 349; Judge King, in Case of Lloyd and Carpenter, 3 Clark 
 (Pa.) 188. 
 
 4 Addison, App. 18. 
 
 5 Bentham Rationale of Judicial Evidence, Vol. II, p. 312. 
 
 6 Grand Juries, 29 L. T. 21. 
 
 7 Jas. Wilson's Works, Vol. II. p. 361. 
 
 I
 
 2 THE GRAND JURY. 
 
 the existence of Britain became known to the Mediterranean 
 Countries. And although Athenian history makes mention of 
 customs similar to the Norman appeal with the wager of bat- 
 tle and also of a trial by a large number of jurors, it is silent 
 concerning a body whose duty was to accuse. 
 
 Other writers claim for the institution an Anglo-Saxon 
 origin, 8 and in confirmation of their opinion point to the law of 
 Ethelred IP (A. D. 978-1016), while still others urge that 
 juries were unknown to the Anglo-Saxons and were introduced 
 into England by the Normans after the conquest. 10 
 
 Strictly speaking there is no obscurity surrounding the origin 
 of the "grand jury," for it was not until the 42nd year of the 
 reign of Edward III (A. D. 1368) that the modern practice of 
 returning a panel of twenty- four men to inquire for the county 
 was established and this body then received the name "le 
 graunde inquest." 11 Prior to this time the accusing body was 
 known only as an inquest or jury, and was summoned in each 
 hundred by the bailiffs to present offences occurring in that 
 hundred. When, therefore, this method of proceeding was en- 
 larged by the sheriff returning a panel of twenty-four knights 
 to inquire of and present offences for the county at large, we 
 see the inception of the grand jury of the present day. But 
 while it is true that our grand jury was first known to England 
 in the time of Edward the Third, it is nevertheless not true that 
 it was an institution of Norman origin or transplanted into 
 England by the Normans. 
 
 That the petit jury was a Norman institution and by them 
 brought into England cannot well be doubted. Mr. Reeves 12 
 
 8 Crabb's Hist. Eng. Law, 35 ; Spence Equitable Jurisdiction of the 
 Court of Chancery, Vol. I, p. 63 ; Grand Juries and the Pleas of Criminals, 
 (John Lascelles) Law Mag. & Rev. Vol. 4 (N. S.) 767; Grand Jury in Ire- 
 land, etc. (Wm. G. Huband) 5. 
 
 9 Wilkins Leges Anglo Saxonicae 117; Note to Grand Juries and the 
 Pleas of Criminals (John Lascelles) Law Mag. & Rev. Vol. 4 (N. S.) 
 767. 
 
 10 i Reeves Hist. Eng. Law 23. 
 
 11 3 Reeves Hist. Eng. Law 133; Growth of the Grand Jury System 
 (J. Kinghorn) 6 Law Mag. & Rev. (4th S.) 367. 
 
 12 Hist Eng. Law, Vol. I, p. 84.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 3 
 
 shows that the trial by twelve jurors was anciently in use 
 among the Scandinavians, and became disused, but "was re- 
 vived, and more firmly established by a law of Reignerus, sur- 
 named Lodbrog, about the year A. D. 820. It was about 
 seventy years after this law, that Rollo led his people into Nor- 
 mandy, and, among other customs, carried with him this 
 method of trial; it was used there in all causes that were of 
 small importance." At the time the Normans were using the 
 Scandinavian nambda, the Anglo-Saxons were proceeding with 
 sectatores, that is suitors of the court, to whom were referred 
 all questions of law and of fact. The number of sectatores was 
 indeterminate 13 and we have no record that unanimity was re- 
 quired in their verdict. While, therefore, we see that in Nor- 
 mandy, the nambda, and in England, the sectatores, were per- 
 forming similar functions in determining questions of fact, we 
 further find their jurisdiction extending only to civil causes. 
 
 The ancient modes of bringing offenders to justice in Nor- 
 mandy and in England were as radically different as they are 
 to-day. 
 
 The Norman method was by appeal, (from the French 
 appeler, to call) 14 the direct individual accusation, the truth of 
 which was determined by the wager of battle. The nambda 
 took no cognisance of criminal pleas, and crimes, where no 
 appellor appeared, went unpunished. The English method was 
 designed to prevent the escape of any who had violated the 
 law. This was sought to be accomplished first, by prevention 
 through the system of frank pledge, by which in every tithing 
 the inhabitants were sureties to the king for the good behavior 
 of each other; 15 and, second, by prosecution instituted by the 
 presentment of the twelve senior thanes in every hundred or 
 wapentake, whose duty was, according to the law of Ethelred, 
 to accuse such persons as they found had committed any 
 
 13 i Reeves Hist Eng. Law 22. 
 
 14 Bouvier's Law Dictionary (Rawle's Revision). 
 
 15 i Bl. Com. 114; Bouvier's Law Dictionary (Rawle's Revision) ; 
 Growth of the Grand Jury System (J. Kinghorn) 6 Law Mag. & Rev. 
 ( 4 th S.) 367-
 
 4 THE GRAND JURY. 
 
 crime. 1 " There was also the hue and cry, which was raised 
 when any offence was discovered and the offender was pursued 
 until taken; if he escaped, then the hundred in which he was in 
 frank-pledge was liable to be amerced. 17 Inasmuch as in this 
 period all offences were regarded as of purely private concern, 
 the offender could escape trial and punishment upon payment to 
 the person wronged, or, if he was dead, to his next of kin, of 
 a sum of money, varying in accordance with the enormity of 
 the offence, and the rank of the person injured. This was 
 known as the custom of weregild. 18 If, however, the defend- 
 ant either could not or would not pay weregild, then the truth 
 of the charges prosecuted by these methods was determined by 
 compurgation, by the corsned or morsel of execration, or by the 
 ordeal of fire or water. 19 Where the accused failed to clear 
 himself by compurgation, which occurred when he failed to ob- 
 tain the necessary number of persons who were willing tc swear 
 their belief in his innocence, he was obliged to purge himself 
 by the ordeal. 20 
 
 It will therefore be seen that the grand jury was not a Nor- 
 man institution brought into England by the conquest, for an 
 accusing body was wholly unknown among the Normans ; and 
 while the Normans did introduce the nambda into England, 
 where its similarity to the sectatores caused it to firmly impress 
 itself into the English customs, 21 in the land which sent it forth 
 to England it gradually sank into disuse. 22 
 
 The English system of frank-pledge, with the holding of the 
 sheriff's tourn semi-annually in the county, and the court-leet 
 
 16 Wilkins Leges Anglo Saxonicae 117; The Grand Jury, etc., in Ire- 
 land (Win. G. Huband) II ; Spence Equitable Jurisdiction of the Court of 
 Chancery, Vol. I, p. 63 ; Crabb Hist. Eng. Law 35. 
 
 17 4 Bl. Com. 294. 
 
 18 For the amount to be paid as weregild, see Stubbs Select Charters, 65 ; 
 Reeves Hist. Eng. Law 14 et. seq. 
 
 19 4 Bl. Com. 414; i Reeves Hist. Eng. Law 15, 20, 21. 
 
 20 Forsyth Trial by Jury 159. 
 
 21 An Essay on the Law of Grand Juries (E. Ingersoll, Philadelphia, 
 1849) ; Origin of Grand Juries (Hon. E. Anthony), i Chic. L. News, 20. 
 
 22 The Jury and Its Development, (Prof. J. B. Thayer), 5 Harv. L. Rev. 
 351-
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 5 
 
 or view of frank-pledge, annually in the hundred, when offend- 
 ers appear to have been punished, 23 were supplemented in their 
 purpose of preventing crime and bringing offenders to justice 
 by the accusing body of twelve thanes of each hundred as or- 
 dained by the law of Ethelred. 24 Whether this law created 
 the accusing body or was merely declaratory of a custom then 
 in use in parts of the kingdom with the intent to make it of uni- 
 versal application, is a matter of much doubt. It is more prob- 
 able, however, that the statute of Ethelred was declaratory of 
 the law then subsisting and this view is strengthened by the 
 statement of Blackstone, 25 that "the other general business of 
 the leet and tourn was to present by jury all crimes whatsoever 
 that happened within their jurisdiction," although he cites no 
 authority in support of his opinion. 
 
 That the accusing body was the result of a slow growth, 
 eventually being confirmed by statute, would seem to receive 
 support from the nature of the institution of frank-pledge. 
 Twice each year the sheriff would visit each hundred in the 
 county and keep a court leet where he would view the frank- 
 pledges, 26 and as wrongdoers were at such times awarded pun- 
 ishment, it is manifest that some method must have been em- 
 ployed to make the offenders known. The principal thanes and 
 freeholders of the hundred being responsible for their subor- 
 dinates, would most naturally be the ones upon whom would 
 devolve the duty of presenting the offenders. We see these 
 customs substantially appearing in the law of Ethelred, which 
 provides that a gemot, 27 that is, a meeting be held in every 
 wapentake (hundred) and the twelve senior thanes go out and 
 the reeve (sheriff) with them, to accuse those who have com- 
 mitted any offence. 28 
 
 The statute would merely seem to have made secure that 
 which the very nature of frank-pledge had of necessity pre- 
 23 4 Bl. Com. 273. 
 
 24 Wilkins Leges Anglo Saxonicae 117. 
 
 25 4 Bl. Com. 274. 
 
 26 4 Bl. Com. 273. 
 
 27 Bouvier's Law Dictionary (Rawle's Revision). 
 
 28 Wilkins Leges Anglo Saxonicae 117.
 
 THE GRAND JURY. 
 
 viously brought forth. That it was but declaratory of the ex- 
 isting law would seem to be further verified by the fact that the 
 statute was ordained as "frith-bot for the whole nation at 
 Woodstock in the land of the Mercians, according to the law of 
 the English," 29 thereby indicating such to have been the ex- 
 isting law in some parts of the kingdom at least. Whether the 
 number composing this accusing body had by usage been fixed 
 at twelve or whether it was first definitely fixed by the statute 
 cannot be determined, but the statute is the only evidence we 
 have of the number necessary to present offenders, until the 
 time of Glanville, nearly two hundred years later. It is prob- 
 able, however, that, like the sectatores, the number was inde- 
 terminate until the statute of Ethelred reduced it to a certainty, 
 although there is one instance even as late as the reign of Henry 
 III (A. D. 1221) where a presentment was made to the itin- 
 erant justices by seven jurors. 30 That the number should be 
 fixed at twelve is perhaps due to the superstition of the period 
 which tolerated the trial by the corsned and the ordeal, believ- 
 ing God would miraculously intervene to protect the innocent. 
 Lord Coke 31 thinks "that the law in this case delighteth herself 
 in the number of twelve .... and that number of 
 twelve is much respected in holy writ, as twelve apostles, twelve 
 stones, twelve tribes, &c." 
 
 The Norman conquest, while it brought into England the 
 customs and laws of the conquerors, did not materially alter the 
 Saxon laws and customs relating to the detection and punish- 
 ment of crime. With them came the barbarous trial by bat- 
 tle, 32 but they also brought what afterward became a blessing 
 in the trial by jury. 33 
 
 Under the Norman occupation the system of frank-pledge 
 still continued, although not perhaps of its former importance 
 
 29 Note to Grand Juries and the Pleas of Criminals, (John Lascelles), 
 4 Law Mag. & Rev. (N. S.) 767. Stubbs Select Charters 72. 
 
 30 Select Pleas of the Crown, (Selden Society) Case No. 162. 
 
 31 Coke on Littleton 1553. 
 
 32 The Older Modes of Trial, (Prof. J. B. Thayer) 5 Harv. Law Rev. 
 65. 
 
 33 Id. p. 45-
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. J 
 
 now that the accusing body in each hundred regularly made its 
 presentments, and its importance was still further lessened by 
 the Norman appeal with its wager of battle. The appeal ma- 
 terially promoted the importance of the accusing body, for un- 
 less the appellor himself suffered the m jury, there was no in- 
 centive to him to risk his life or liberty in the trial by battle, 
 when the crime could equally well be presented by the in- 
 quest. 34 
 
 In the period of one hundred years following the conquest, 
 the Normans were actively engaged in introducing their laws 
 and customs in the stead of the Saxon laws and customs. It is 
 therefore of interest that at the close of this period, the accus- 
 ing body should receive its second statutory confirmation and 
 at the hands of a descendant of William the Conqueror. By 
 the Assize of Clarendon A. D. 1166, it was enacted "that in- 
 quiry be made in each county and in each hundred, by twelve 
 lawful men of the hundred and four lawful men of every town- 
 ship who are sworn to say truly whether in their hundred or 
 township there is any man accused of being or notorious as a 
 robber, or a murderer or a thief, or anybody who is a harborer 
 of robbers, or murderers or thieves, since the king began to 
 reign. And this let the justices and the sheriffs inquire, each 
 (officer) before himself." 35 All persons thus presented were 
 to be tried by ordeal. 
 
 This statute marks an important change in the administra- 
 tion of the criminal law. Prior to this all offences were tried 
 in the county or hundred courts, but now those offences named 
 in the statute became offences against the peace of the king and 
 were cognizable only in the itinerant courts which this same 
 statute created. It is thought by some writers that these 
 courts were not created by this statute, 88 but were first pro- 
 vided for by the statute of Northampton A. D. 1176, but it 
 would rather seem that they were created by the Assize of Clar- 
 
 34 An Essay on the Law of Grand Juries, (E. Ingersoll, Philadelphia, 
 1849) ; Lesser, Hist. Jury System 136. 
 
 35 Lesser's Hist. Jury System 138. 
 
 36 Forsyth Trial by Jury 81.
 
 8 THE GRAND JURY. 
 
 endon, 37 that of Northampton merely dividing the kingdom 
 into six circuits as the Assize of 1179 subsequently divided the 
 kingdom into four circuits. 38 The Assize of Clarendon marks 
 still another important event in the history of the administra- 
 tion of the criminal law in England, for by reason of what was 
 called "the implied prohibition" in this statute, (the statute 
 provided for trial by the ordeal) compurgation in criminal 
 cases disappears in the king's courts although it continued un- 
 til a later period in the hundred courts where the sheriff pre- 
 sided. 39 The system of frank-pledge while itself falling into 
 disuse, really formed the root of a broader scheme for adminis- 
 tering justice. 
 
 The idea of itinerant justices was not in use among the Nor- 
 mans at the time of the conquest, nor does it seem to have ever 
 been adopted in Normandy. Under the Saxon law the sheriff 
 was the king's officer in the county, and was appointed each 
 year. During his term, his authority in the county was su- 
 preme except when directed otherwise by the king. 40 It, there- 
 fore, was an easy matter in order to increase the influence of 
 the crown, and to insure the administration of Norman laws 
 and customs, to appoint sheriffs chosen by the king from the 
 justices of the curia regis* 1 We consequently have the king's 
 judicial officer acting in the capacity of sheriff and, in accord- 
 ance with the Saxon custom, viewing the frank-pledges in each 
 hundred of his county and blazing the way for the system of 
 itinerant justices, who came into the county to hold the eyre 
 and, like the sheriff, administered the pleas of the crown in 
 each hundred. The inhabitants gathered before the itinerant 
 justices as the frank-pledges gathered before the sheriff; and 
 the twelve knights made their presentments to the justices in 
 the same manner in which the twelve thanes had, under the 
 Saxon law, presented offenders before the sheriff. 
 
 By the Assize of Northampton, A. D. 1176, the institution of 
 
 37 4 Bl. Com. 422. 
 
 38 Forsyth Trial by Jury 82. 
 
 39 The Older Modes of Trial, (Prof. J. B. Thayer) 5 Harv. L. Rev. 59. 
 
 40 Bl. Com. Book i, p. 343; Bispham Equity (5th Ed.) Sec. 5. 
 
 41 Bispham Equity (sth Ed.) Sec. 5.
 
 ITS ORIGIN HISTORY AND DEVELOPMENT. Q 
 
 the accusing body wa: again confirmed 42 by the following pro- 
 vision : that "anyone charged before the king's justices with the 
 crime of murder, theft, robbery or receipt of such offenders, of 
 forgery, or of malicious burning, by the oaths of twelve knights 
 of the hundred : if there were no knights, by the oaths of 
 twelve free and lawful men, and by the oaths of four out of 
 every vill in the hundred" should be tried by the ordeal. 43 If 
 he failed in the ordeal, he lost a hand and foot and was ban- 
 ished. If he was acquitted by the water ordeal he still suffered 
 banishment if accused of certain crimes. 44 
 
 This statute divided the kingdom into six circuits and pro- 
 vided for holding an eyre in each county of the circuit of the 
 justices not more than once in every seven years. 
 
 The treatise of Glanville on the laws of England was written 
 in the period 1 180 to 1 190, and is of great interest by reason of 
 the light it throws upon this institution and the administration 
 of justice relating to the pleas of the crown. The old Saxon 
 custom of weregild lost its force with the coming of the Nor- 
 mal appeal and wager of battle, and, in the time of Glanville, 
 when an appeal was once properly brought which concluded 
 against the king's peace, the parties could not settle the dispute 
 between them or be reconciled to each other except by the 
 king's license. 45 Like the custom of weregild, the appeal was 
 a personal action, and in those appeals which were cognizable 
 in the king's courts, the king had an interest by virtue of the 
 breach of the peace, but this right was only exercised when the 
 battle was not waged. 45 * When the appellee emerged victorious 
 from the battle, he was wholly acquitted of the charge even 
 against the king, for by his victory he purged his innocence 
 against them all. 49 
 
 In the time when Glanville wrote, there were two methods of 
 
 42 Lesser Hist. Jury System 140. 
 
 43 The Older Modes of Trial (Prof. J. B. Thayer) 5 Harv. L. Rev. 64; 
 Lesser Hist. Jury System 140. 
 
 44 Reeves Hist. Eng. Law, Vol. I, p. 193. 
 
 45 Glanville (Beame's Translation Legal Classic Series) 282. 
 45* Britton (Legal Classic Series) 86. 
 
 46 Bracton-de legibus, (Sir Travers Twiss ed.) Vol. II, 417.
 
 10 THE GRAND JURY. 
 
 instituting prosecutions, viz., by appeal it the suit of the per- 
 son injured or his proper kinsman; and the accusation by 
 the public voice, that is, the presentment by the accusing body 
 that the defendant was suspected of certain offences. 47 If the 
 appeal was properly brought, the trial by battle was usually 
 awarded. Whether the appellee had the privilege of electing 
 to do battle or submit to the ordeal, as in the latter part of the 
 reign of King John he might elect between the battle and the 
 country, does not appear. It is certain, however, that he was 
 not entitled to demand the battle in all cases. If the appellor 
 was upward of sixty years of age or was adjudged to have re- 
 ceived a mayhem, he seems to have had the privilege of declin- 
 ing battle, and the defendant was then compelled to purge him- 
 self by the ordeal. 48 If the appellor was a woman and was 
 entitled to make the appeal, the defendant was obliged to either 
 abide by her proof or submit to the ordeal. 49 If the appeal 
 failed, or before battle was awarded the appellor withdrew, the 
 accusing body was asked if it suspected the man of any offence, 
 and if it did he was obliged to- clear himself by the ordeal, as 
 though the presentment had been made against him upon sus- 
 picion in the first instance. 50 
 
 Up to this time (A. D. 1190) we have no evidence of the 
 petit jury being used in criminal cases, 51 and the fact that Glan- 
 ville fails to make any reference to any mode of trial other than 
 the ordeal upon presentments of the accusing body, and the 
 battle upon appeals, may safely be taken as conclusive that the 
 time had not yet arrived when a defendant was permitted to 
 have the country pass upon questions affecting his life or his 
 liberty. The accusing inquest seems, however, to have a some- 
 what wider scope than heretofore appears, for Glanville speaks 
 of it as having authority to make inquisitions concerning nui- 
 
 47 Glanville (Beames Translation Legal Classic Series) 278; i Reeves 
 Hist. Eng. Law 195. 
 
 48 Glanville (Beames Translation Legal Classic Series) 282. 
 
 49 Id. 287. 
 
 50 Bracton-de legibus, Vol. II, p. 447, 448. 
 
 51 Hallam's Middle Ages, Vol. II, p. 176, 177; Palgrave English Com- 
 monwealth 269.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. I I 
 
 sances and certain other matters. 82 In A. D. 1194, the fifth 
 year of Richard I, the jurisdiction of the itinerant justices was 
 further increased and certain capitula or articles of inquiry 
 were delivered to them, which they were to make known to 
 the accusing body, and to each article which concerned the hun- 
 dred, this body was obliged to make answer. 53 The four men 
 of each vill or township mentioned in the Assize of Clarendon 
 and the Assize of Northampton are not referred to in these in- 
 structions to the justices, which one writer thinks would seem 
 to indicate that the four men formed no part of the accusing 
 body." 
 
 With the year A. D. 1201, and the third of the reign of King 
 John, we have the court rolls of the eyres which the itinerant 
 justices held in the several hundreds of their respective dis- 
 tricts, which the efforts of the Selden Society 85 are bringing to 
 light, and many doubtful points by means thereof, are being 
 cleared up. From these records we are enabled to obtain some 
 idea of the instances in which this accusing body would exer- 
 cise its right of presentment. They seem to have presented 
 where they had knowledge of, or suspected a person of an 
 offence; 58 where a person was accused, 57 probably by some one 
 appearing before them and there charging a person with an 
 offence ; where an appeal had been held to be null ; 58 where an 
 appeal had been made by a woman; 59 and apparently in all 
 cases where appeals had been made concluding against the 
 king's peace. 80 The inquest was required to answer fully con- 
 cerning each article of the capitula; 81 and if they failed in 
 this, they were accused of concealing the truth and were in the 
 
 52 Glanville (Beames Translation Legal Classic Series) 194. 
 
 53 Bracton-de legibus, Vol. II, p. 241 ; i Reeves Hist. Eng. Law aoi. 
 
 54 The Grand Jury, etc., in Ireland (Wm. G. Huband) n. 
 
 55 Select Pleas of the Crown. 
 
 56 Id. Cases No. 5, 6, 12, 57. 
 
 57 Id. Cases No. 10, 181. 
 
 58 Id. Case No. 13; Bracton-de legibus, Vol. II, p. 449. 
 
 59 Select Pleas of the Crown, cases No. 68, 153. 
 
 60 Id. Cases No. 15, 21. 
 
 61 2 Reeves Hist. Eng. Law 3; Bracton-de legibus, (Sir Travers Twiss 
 ed.) Vol. II, 241.
 
 12 THE GRAND JURY. 
 
 king's mercy and liable to be fined and imprisoned. 62 In such 
 case, therefore, it is very reasonable to suppose they would 
 present all persons whom they suspected or knew had violated 
 any of the articles with which they were charged, irrespective 
 of the fact that some of those whom they presented may have 
 been regularly appealed. The inquest was not restrained in 
 any manner from making such presentments, nor does it ap- 
 pear that they were required to make presentment of such cases 
 except where the appeal had failed. When we also consider 
 that the eyre was held in the county only once in every seven 
 years, it would be manifestly impossible for the freeholders of 
 each hundred to remember who had been appealed within their 
 hundred during the period, so that they might not present in 
 such cases. Further than this, the manner of proceeding be- 
 fore the justices upon the appeals would seem to make it neces- 
 sary in the interest of justice, that the inquest should also pre- 
 sent those offences where appeals had been made. 
 
 In order to properly make his appeal, the appellor was re- 
 quired to raise the hue and cry, go to the king's sergeants, 
 thence to the coroners of the county where his complaint was 
 enrolled word for word, and lastly to the county court, where 
 his complaint was similarly enrolled. 63 Then when the cause 
 came before the justices, the appellor was heard and the appellee 
 answered, after which the coroner's rolls were read, and if they 
 or the majority of them agreed with the appellor and there were 
 no good exceptions, then the appellee could choose how he 
 would be tried. 64 If the coroners' rolls disagreed, but were 
 
 62 Bracton-de legibus, Vol. II, p. 239. A very curious analogy to this 
 will be found in the laws of the State of Connecticut. By Gen. St. tit. 20, 
 C. 12, Sec. 23, it is provided that a sworn grand juror shall forfeit $2, if 
 he "shall neglect to make seasonable complaint of any crime or misde- 
 meanor committed within the town where he lives, which shall come to his 
 knowledge." In Watson v. Hall, 46 Conn., 204, it was held that this must 
 be construed to give him discretion as to whether the offence is too trivial 
 for a criminal prosecution, and he is not liable, if in good faith, he omits 
 to complain. 
 
 63 Bracton-de legibus (Sir Travers Twiss ed.) Vol. II, p. 425. 
 
 64 Id. p. 431. This discloses a change in the law subsequent to the time 
 when Glanville's Treatise was written, as the appellee was apparently at 
 that time not permitted to choose the method of trial. Supra. 10.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 13 
 
 evenly divided, then the sheriff's roll was read, and accord- 
 ingly as this showed, the trial was or was not awarded. If it 
 happened that an appellor did not prosecute his appeal, there 
 seems to have been no provision in the law for making known 
 to the justices such complaint as contained in the rolls, yet it 
 might well happen that the appellee was then confined in prison. 
 It would consequently appear that if the inquest did not present 
 the appellee where an appeal had been made, not only might a 
 felony go unpunished, but an injury be done to the king in the 
 concealment by the inquest of the breach of his peace. 65 How, 
 then, the accusing body could discriminate between appeals that 
 were prosecuted, and those where the appellor defaulted, ac- 
 cusations and rumors, and present in all cases except where the 
 appeal was prosecuted, particularly when they were organized, 
 sworn, charged and went about the performance of their duties 
 before the court was ready to hear the criminal pleas, cannot 
 easily be perceived. It would seem more probable that they 
 presented in all cases where they had either actual knowledge 
 or public fame upon which to base their presentment, irrespec- 
 tive of the fact that an appeal was then pending. 
 
 Two instances of this are disclosed by the Selden Society 68 
 in their researches into the record rolls of the courts held by 
 the itinerant justices in the reign of King John, in both of 
 which the inquest made presentments of offences in which ap- 
 peals had been made, and in both cases the inquest was ad- 
 judged in the king's mercy because the appeals were found to 
 have concluded against the sheriff's peace and therefore were 
 improperly presented in the king's court. This view we see 
 supported by the proceedings in the modern case of Ashford vs. 
 Thornton. 67 In this case the defendant was indicted for mur- 
 der, tried and acquitted. The brother of the murdered wo- 
 man then brought an appeal and the appellee elected to wage 
 his battle, which the appellor declined. The attorney general 
 
 65 Bracton-de legibus, (Sir Travers Twiss cd.) Vol. II, p. 449. 
 
 66 Select Pleas of the Crown, Cases No. 15, 21. 
 
 67 Ashford v. Thornton I B. & Aid 405. This was the last time an ap- 
 peal was brought in England, the wager of battle being abolished in 1810 
 by Statute 59, Geo. Ill, C. 46.
 
 14 THE GRAND JURY. 
 
 thereupon caused the defendant to be immediately arraigned 
 upon an indictment which had been found in the meantime for 
 the felony at the king's suit, to which at once the defendant 
 pleaded his former acquittal upon the indictment for murder, 
 and the plea was adjudged sufficient. 
 
 The rolls of the courts held by the itinerant justices 68 re- 
 veal a practice which adds further burdens to the already diffi- 
 cult task of tracing the development of the accusing body. 
 Where the inquest presented anyone either upon suspicion or 
 accusation who had not been appealed, the presentment of the 
 inquest does not appear to have been regarded as sufficiently 
 conclusive in all cases to award the ordeal. In such cases, the 
 justices asked the four neighboring townships if they suspected 
 the defendant, and if they did, then he was obliged to purge 
 himself by the ordeal. 69 What the office of the four town- 
 ships actually was, how they came to exercise this office, and 
 in what instances they exercised it are purely matters of con- 
 jecture. Where an appeal was declared null or for some other 
 cause failed and the inquest ignored the breach of the king's 
 peace, the verdict of the inquest seems to have been conclu- 
 sive, 70 and the four townships were not called upon, and this 
 also seems to be true in many cases where the inquest pre- 
 sented upon suspicion or accusation. 71 
 
 Glanville makes no reference to the four townships, and his 
 silence is singular if the townships were called upon to officially 
 act. It is also to be noted that he makes no reference to, or 
 comment upon, the four freemen out of every vill in the hun- 
 dred referred to in the Assize of Clarendon. If the statute had 
 reference to criminal proceedings, this new appendage of the 
 inquest was such a departure from the ancient law as to be the 
 subject of comment. That this comment was not made, leaves 
 but two conclusions to be drawn, either that it is a mistaken 
 idea in holding this provision of the statute to relate to the 
 
 68 Select Pleas of the Crown (Selden Society). 
 
 69 Id. Cases No. 5, 6, 10, 12, 57, 181. 
 
 70 Id. Case No. 13. This case is probably the first recorded instance 
 of an "ignoramus." And see Case No. 153. 
 
 71 Select Pleas of the Crown, Cases No. 157, 170.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 15 
 
 accusing inquest, or that it remained a dead letter until after 
 Glanville's period. 
 
 Whether or not the "four freemen out of every vill" and the 
 "four townships" were identical, can only be a subject for con- 
 jecture. It remains, however, that the only jurist who wrote 
 in the period A. D. 1166-1200, mentions neither, and the rolls 
 of the courts held by the itinerant justices beginning with A. 
 D. 1 20 1, make reference only to the "four townships" being 
 inquired of. Whatever may have been the purpose of this pro- 
 vision of the Assize of Clarendon, there seems to be no mention 
 of the four freemen until Bracton's treatise was written, and 
 then but little light is shed upon the capacity in which they 
 were required to act. Bracton, however, shows that they 
 formed no part of the inquest which presented the defendant. 
 
 The court rolls disclose that the four townships did not act 
 until after the inquest had presented on suspicion. In discuss- 
 ing a presentment on suspicion Glanville states that the de- 
 fendant was immediately thereafter to be taken into custody. 
 He then continues: "The truth of the fact shall then be in- 
 quired into by means of many and various inquisitions and in- 
 terrogations made in the presence of the justices, and that by 
 taking into consideration the probable circumstances of the 
 facts, and weighing each conjecture which tends in favor of 
 the accused, or makes against him ; because he must purge him- 
 self by the ordeal, or entirely absolve himself from the crime 
 imputed to him." 72 
 
 If this paragraph could be taken as referring to the four 
 townships, then they were only asked when the justice had a 
 doubt concerning the presentment of the inquest; but that it 
 does not would seem more likely in view of the fact that Glan- 
 ville does not mention them. That it does not have reference 
 to the four freemen out of every vill in the hundred may be 
 regarded as equally conclusive by his omission to mention 
 them, and particularly so in view of the fact that he was an 
 itinerant justice from 1176 to 1180, a time when he must 
 necessarily have been brought in close contact with them if they 
 were called upon to act, .and subsequently wrote his famous 
 
 72 (Beames Translation Legal Classic Series), p. 278.
 
 1 6 THE GRAND JURY. 
 
 treatise. 73 That they were not brought into exi.'.'ly arraigned 
 instructions of 1194 is equally well settled, for meantime for 
 referred to therein. 74 That they were not callecMe defendant 
 cases has already been seen. 75 So far as the cases s?r murder, 
 power did not extend beyond confirming what the inqu. 
 already presented, and they apparently could not nullity 1 re- 
 presentment. It would therefore seem that no provision Cv 
 law made their use obligatory, otherwise they must have acted 
 in all cases ; and when they were called upon to act, they were 
 limited to a concurrence with what the inquest had presented, 
 and if they did not concur, their verdict had no effect upon the 
 result. The townships appear never to have acted until the 
 inquest made its presentment. 70 
 
 They did not act with the accusing jurors as a trial jury after 
 the defendant had been presented, otherwise he was obliged to 
 submit to two trials the petit jury as thus composed, and the 
 ordeal, and then too, the trial by jury in criminal cases had not 
 yet come into use. 77 It is therefore probable that it was op- 
 tional with the justices whether or not they would inquire of 
 the four townships, and they did this only to satisfy themselves 
 whether the ill repute of the defendant was believed by others 
 than the accusing body. 
 
 Mr. Forsyth 78 makes this comment upon the relation which 
 the accusing body bore to the four townships : "We here see 
 that the neighboring townships were associated with the jury 
 in the inquest; and this was by no means an unusual practice. 
 But they were not considered part of the jury, but seem rather 
 to have assisted in the character of witnesses, and to have con- 
 stituted part of the fama publica." 
 
 We have still to consider the methods of trial in force at this 
 
 73 This is doubted by eminent authors who attribute it to Hubert Walter, 
 who was clerk to Glanville at the time he was Chief Justiciar. See Pol- 
 lock & Maitland Hist. Eng. Law, Vol. I, p. 164 
 
 74 The Grand Jury, etc., in Ireland (Wm. G. Huband), p. n. 
 
 75 Supra 14. 
 
 76 See generally the cases in Select Pleas of the Crown. 
 
 77 Lesser Hist. Jury System 142. 
 
 78 Trial by Jury, p. 166.
 
 i'S ORIGIN, HISTORY AND DEVELOPMENT. I/ 
 
 accusing inq to fully comprehend the duty of the inquest in 
 Glanville's p 
 
 Whether by battle was in force upon appeals properly 
 "four tovut the exceptions which might be taken to the appeal 
 jectur^oming more numerous. The right of the appellee to 
 in f \ie battle and put himself upon the country is not men- 
 oned by Glanville, nor does there seem to be a recorded in- 
 stance of it until the early years of King John's reign. 
 
 The first instances where the accused was allowed to put him- 
 self upon the country, appear to have been the result of an ap- 
 plication to the favor of the king and the payment to him of a 
 sum of money for the issuance of a writ awarding an inquest. 79 
 These cases were, however, rare, and what few cases appear in 
 the books give but little information concerning the instances 
 in which the king would grant such a writ. 80 If wager of 
 battle was declined and the king petitioned for a writ awarding 
 an inquest, if granted, there was apparently no accusation made 
 by the accusing body against such defendant for the breach of 
 the king's peace ; the verdict of the trying inquest being alone 
 given and was conclusive. 
 
 It was provided by Article 36 of the Magna Charta of King 
 John that writs awarding an inquest should no longer be sold, 
 but be of right. 81 It may, however, be doubted whether this 
 provision was intended to apply to writs thus sold awarding an 
 inquest in criminal cases. 82 It is more probable that it was in- 
 tended to apply to writs awarding an assize, for the statutes of 
 Clarendon and Northampton had made provision for such an 
 assize in determining property rights. So far as the inquisi- 
 tion to determine title to real property was concerned, this had 
 
 79 Lesser Hist. Jury System 142, 144 ; Forsyth Trial by Jury 166. 
 
 80 Select Pleas of the Crown. 
 
 81 Magna Charta of King John, Article 36, provided : "Nihil detur vel 
 capiatur de cetero pro brevi inquisitionis de vita vel membris, sed gratis 
 concedatur et non negatur." Stubbs Select Charters, p. 301. In the con- 
 firmation of the Great Charter by Henry III, in 1216, Article 36 of King 
 John's Charter becomes Article 29 : Stubbs Select Charters, p. 342. 
 
 82 But rather a contrary view is expressed by" Professor J. B. Thayer 
 in The Jury and its Development, 5 Harv. L. Rev. 265, although no rea- 
 sons are given for the opinion he expresses. 
 
 2
 
 l8 THE GRAND JURY. 
 
 become a fixed method of procedure which almost universally 
 superseded the determination of such issue by the wager of 
 battle. In criminal proceedings, however, the inquest was 
 wholly foreign to their institutions and something seemingly to 
 be shunned rather than encouraged. 
 
 The ordeal which in Glanville's time was generally awarded 
 when the battle could not be waged, was in full vigor during 
 this period up to the year 1215, when by the action of the 
 Fourth Lateran Council of Innocent III, by which the clergy 
 were expressly forbidden 10 participate in the ceremonies of the 
 ordeal, the practice came t^ an end thereby opening the way for 
 the trial by the country. 83 
 
 It is said by Professor Thayer 84 that "the Assize of Claren- 
 don, in 1166, with its apparatus of an accusing jury and a trial 
 by ordeal is thought to have done away in the king's courts 
 with compurgation as a mode of trial for crime ; and now the 
 Lateran Council, in forbidding ecclesiastics to take part in trial 
 by ordeal, was deemed to have forbidden that mode of trial, as 
 well in England as in all other countries where the authority 
 of the Council was recognized. The judges would naturally 
 turn to the inquest." 
 
 It is reasonable to suppose that the inquest would be adopted 
 as the learned writer above quoted says, for the inquest was 
 the only mode of trial remaining by which suspected persons 
 might be tried. 85 But this the judges could not do unless au- 
 thorized by the king. The next eyre was held in the years 
 1218-19, and the judges had started on their journey when the 
 order of the king in council was sent to them in the following 
 words : "When you started on your eyre it was as yet unde- 
 termined what should be done with persons accused of crime, 
 the Church having forbidden the ordeal. For the present we 
 must rely very much on your discretion to act wisely, accord- 
 ing to the special circumstances of each case." The judges were 
 
 83 Lesser Hist. Jury System 142, Note 24; Hallam's Middle Ages, Note 
 to Chapter VIII ; Stubb's Select Charters, p. 142. 
 
 84 The Jury and its Development, 5 Harv L. Rev. 265. 
 
 85 While trial by battle was still in use, it could only be used where an 
 appeal had been properly brought.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. IQ 
 
 then given certain general instructions : Persons charged with 
 the graver crimes, who might do harm if allowed to abjure the 
 realm, are to be imprisoned, without endangering life or limb. 
 Those charged with less crimes, who would have been tried by 
 the ordeal may abjure the realm. In the case of small crimes 
 there must be pledges to keep the peace. 86 
 
 This is one of the most important and interesting periods of 
 English history, for at this time the signing of the Great Char- 
 ter occurs, establishing the liberties of the people, and the sys- 
 tem which was to be most potent in assuring these liberties 
 according to the guaranties of the Charter, supplanted a cus- 
 tom that was brutal in the extreme. 
 
 Bracton, 87 who wrote clearly and at great length, in the reign 
 of Henry III, sets forth with precision the various methods of 
 prosecuting offenders against the law. He points out that 
 where there was a certain accuser he might make his appeal or 
 might sue, that is, make his accusation before the inquest ; that 
 when the appeal had fallen, the king might sue on behalf of his 
 peace; and finally the presentment which the inquest might 
 make of persons not accused or appealed, but suspected by the 
 inquest to be guilty by reason of public fame. 88 This is a lucid 
 summing up of the methods then pursued, as has been hereto- 
 fore shown, and may reasonably be assumed to have been the 
 method in vogue at least since the Assize of Clarendon, and 
 from possibly an earlier date. The workings of the system 
 are described carefully and with much attention to detail. 89 
 When the justices proposed holding an eyre in any county "a 
 general summons issues to appear before the justices itinerant 
 and should issue at least fifteen days prior to their coming." 
 
 When the justices come the writs authorizing them to hold 
 an itcr are read, after which one of the older and more discreet 
 of them sets forth the cause of their coming and what is the 
 utility of their itineration, and what is the advantage if peace 
 be observed. After this they go to a secret place and call four 
 
 86 Maitland Glou. Pleas XXXVIII. 
 
 87 de legibus (Sir Travers Twiss ed). 
 
 88 Bracton-dc legibus, Vol. II, p. 451. 
 
 89 Id. Vol. II, p. 235, et. seq.
 
 2O THE GRAND JURY. 
 
 or six of the greater men, the busones, of the county to them 
 and consult with them in turn and explain that the king has 
 provided that all knights and others of the age of fifteen and 
 upwards ought to swear that they will not harbor outlaws, etc., 
 and will arrest, if possible, those whom they regard as sus- 
 pected, without waiting for the mandate of the justices. After- 
 ward the sergeants and bailiffs of the hundred are convoked 
 and the inhabitants of the hundred are enrolled in order. The 
 sergeants each shall pledge his faith "that he will choose from 
 each hundred four knights who shall come forthwith before 
 justices to perform the precept of the lord the king, and who 
 shall forthwith swear that they will choose twelve knights or 
 free and legal men if knights cannot be found, who have no suit 
 against any one and are not sued themselves, nor have any 
 evil fame for breaking the peace, or for the death of a man or 
 other misdeed," and the names of the twelve are placed in a 
 schedule and delivered to the justices. Then the principal one 
 shall make this oath : "Hear this ye justices that I will speak 
 the truth concerning this which ye shall ask me on the part of 
 the lord the king, and I will do faithfully that which you shall 
 enjoin me on the part of the lord the king, and I will not for 
 any one omit to do so according to my ability, so may God help 
 me and these Holy Gospels of God.' 90 And afterward they 
 shall each of them swear separately and by himself: 'The 
 like oath which A. the first juror has here sworn, I will keep 
 on my part so may God help me and these Holy etc." 91 
 
 When this has been done the justices read to the accusing 
 body the various articles, to which the inquest shall make true 
 answers and have their verdict there by a certain day. It is 
 said quietly to them that if they know of anyone in the hundred 
 of evil repute, they shall seize him if possible, otherwise his 
 name is to be secretly conveyed to the justices, that the sheriff 
 may seize him and bring him before the justices. 
 
 "And the amercers (jurors) shall pledge their fealty to do 
 this faithfully, that they will aggrieve no one through enmity 
 nor show deference to any one through love, and that they will 
 
 90 Bracton-de legibus, Vol. il, p. 239, (Sir Travers Twiss ed). 
 
 91 Bracton-de legibus, (Sir Travers Twiss ed.) Vol. II, p. 241.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 21 
 
 conceal those things which they have heard." 02 This would 
 appear to be the first reference we have to the inquest observ- 
 ing a pledge of secrecy, that feature of the grand jury which 
 has aroused the strongest criticism. The purpose of this pro- 
 vision would, however, seem to have been to prevent the escape 
 of offenders who were presented by the inquest. The proceed- 
 ings were not as they are at the present time to be kept secret 
 from every one, for the justices had the power if they suspected 
 the inquest, to inquire of each member separately or of the in- 
 quest generally, the causes which induced such action. 98 
 
 We find that Bracton mentions but two kinds of trial in 
 criminal cases, the battle and the country. It remains to con- 
 sider how these trials were awarded in relation to the method 
 of instituting the proceedings against the offender. If an ap- 
 peal was made, after all exceptions to it had been disposed of, 
 the appellee was entitled to choose the wager of battle or put 
 himself upon the country, but if he chose the country he could 
 not afterward retract and offer to defend himself by his body. 94 
 If the appellor was a woman, the appellee was compelled to put 
 himself upon the country or be adjudged guilty; and if a man 
 over the age of sixty years, or who had a mayhem, the appellee 
 was obliged to put himself upon the country, unless the appellor 
 was willing to wage battle, but with these exceptions it was 
 optional with the appellee to choose the battle or the country, 
 but he could only choose the battle if the appeal was of a 
 felony. 
 
 Where the initial step in the prosecution was the presentment 
 by the accusing body, or where the appeal failed and the de- 
 fendant was presented by the inquest, then he had no alterna- 
 tive but to place himself upon the country. 
 
 Whether when a defendant placed himself upon the country, 
 he placed himself upon the same jurors who accused him, has 
 been a subject of wide discussion, and able authors express con- 
 trary opinions upon this point. Mr. Forsyth 95 says they "for 
 
 92 Bracton-dc legibus, (Sir Travcrs Twiss ed.) p. 243. 
 
 93 Id. p. 453- 
 
 94 Id. p. 403. 
 
 95 Trial by Jury 164; but sec Id. p. 170.
 
 22 THE GRAND JURY. 
 
 a long time seem to have united the two functions of a grand 
 jury to accuse, and a petit jury to try the accused." Mr. 
 Reeves 96 considers that the defendant put himself upon the 
 same jury which indicted him and then the jury "under the di- 
 rection of the justices .... were to reconsider their 
 verdict and upon such review of the matter they were to give 
 their verdict finally." Mr. Crabb 97 gives utterance to the 
 same thought, but states that if the defendant "had suspic- 
 ion of any of the jurors he might have them removed." Mr. 
 Ingersoll 98 considers it doubtful that in Bracton's time the jury 
 which tried offenders was composed of the same persons who 
 had indicted him. Bracton 99 describes the method of proceed- 
 ing with the trial jury in the following language : 
 
 "In order that the proceeding to a judgment may be more 
 safe and that danger and suspicion may be removed, let the jus- 
 tice say to the person indicted, that if he has reason to suspect 
 any one of the twelve jurors he may remove him for just 
 grounds. And let the same thing be said of the townspeople, that, 
 if there have been any capital enmities between any of them and 
 the person indicted, on account of covetousness to possess his 
 land, as aforesaid, they are all to be removed upon just suspic- 
 ion, so that the inquisition may be free from all suspicion. 
 Twelve jurors therefore being present and four townspeople, 
 each of the townspeople or all together, each holding up his 
 hand shall swear in these words : 100 
 
 "Hear this, ye justices, that we will speak the truth concern- 
 ing those things, which ye shall require from us on the part of 
 the lord the king, and for nothing will we omit to speak the 
 truth, so God us help," &c. 
 
 This statement of the action of the petit jury, made when 
 the institution was in its infancy, discloses several interesting 
 facts. We see without question that an inquest had indicted 
 the defendant before this body was required to determine the 
 
 96 2 Hist. Eng. Law 33. 
 
 97 Hist. Eng. Law 162. 
 
 98 Essay on Law of Grand Juries (E. Ingersoll, Philadelphia, 1849). 
 
 99 de legibus, (Sir Travers Twiss ed.) Vol. II, p. 455. 
 
 100 Bracton-de legibus, (Sir Travers ed.) Vol. II, p. 457.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 23 
 
 issue. We see now for the first time the four townspeople 
 mentioned in the Assize of Clarendon, who apparently form a 
 part of the trial jury. For while the accusing body consisted 
 of but twelve jurors, the trying jury was not so limited, and in- 
 stances will be seen where the trial jury consisted of twenty- 
 four. 101 If, when the oath was taken by the four townspeople, 
 the twelve jurors were not then sworn, as may well be deduced 
 from Bracton's statement, 102 then it would seem probable that 
 the jurors were the same persons who had indicted the defend- 
 ant, for they must have been sworn at some prior stage of this 
 particular proceeding. If, however, by this paragraph, Brae- 
 ton means to convey the idea that the entire sixteen were sworn 
 at one time, then it might well be that the members of the try- 
 ing jury differed from the accusing body. In either event the 
 make up of the trying jury was changed by adding the four 
 townspeople, while if it was the original accusing jury, charged 
 with the trial of the defendant after they had indicted him, it 
 might be still further and materially changed by challenges for 
 cause. 108 
 
 The theory that the entire sixteen were sworn at one time is 
 strengthened by noting the difference in the oath taken by those 
 acting as the accusing body and those who are to try the truth 
 of the accusation. 104 The trial jurors merely swear that they 
 will speak the truth as to the things required of them. This 
 was in strict accord with their original character as witnesses 
 of the facts of which they spoke the truth. The oath of the 
 accusing juror was much more comprehensive, and required not 
 only that the juror should speak the truth, but that he should 
 do the things enjoined upon him on the part of the king and 
 "not for any one omit to do so." 
 
 There is still another and what is perhaps the strongest argu- 
 
 101 Post 24, 25. 
 
 102 Supra. 22. 
 
 103 Bracton-dc legibus, (Sir Travers Twiss ed.) Vol. II, p. 455. That 
 a petit juror was a member of the grand jury which found the indictment, 
 was made ground of challenge by 25 Edw. Ill, Stat 5, Chap. 5. See 
 Robert's Digest of British Statutes, p. xxx, also p. 346. 
 
 104 Compare the two oaths Supra. 20 and 22.
 
 24 THE GRAND JURY. 
 
 ment that can be made against the trial jury being the same 
 jury which accused. The accusing body was composed o 
 twelve only, who presented all offenders. 105 In order that 
 they might present, it was not necessary that all the jurors 
 should be. cognizant of the facts as will appear by the following 
 statement by Bracton. Speaking of indicting upon common 
 fame he says, 106 "some one will probably say, or the greater 
 part of the jurats, that they have learnt those things which they 
 set forth in their verdict from one of the associate jurats." It is 
 therefore very clear that the accusing body could indict upon 
 the knowledge of one of their number. It is equally plain, and 
 in this all writers apparently agree, that the trial jury was a 
 jury of witnesses who had personal knowledge of the facts. 107 
 If the twelve of the trial jury did not agree, then the ancient 
 doctrine of "afforciament," that is, the adding of jurors who 
 were cognizant of the facts until twelve could be found who 
 agreed upon a verdict was employed. 108 This was not done 
 with the accusing body. It would consequently seem that the 
 jury which tried was, in most cases, a different body from that 
 which accused, for the accusing body found all indictments 
 with no change in its make up, while the trial jury had not only 
 four townspeople added to it, but the jurors themselves were 
 subject to the defendant's challenge for cause. The record 
 rolls 109 of the itinerant justices show two instances of a sep- 
 arate jury trying the offenders after they were indicted. The 
 first was an appeal by a woman for the murder of her husband, 
 and she having remarried and no appeal being made by her hus- 
 band, it was adjudged that the country should inquire concern- 
 ing the truth. "And the twelve jurors say that he is guilty of 
 that death, and twenty-four knights (other than the twelve) 
 chosen for this purpose say the same." 110 In the second case 
 
 105 Supra, d, 7, g. 
 
 106 Bracton-de legibus, (Sir Travers Twiss ed.) Vol. II, p. 455. 
 
 107 Forsyth Trial by Jury, 104; Lesser Hist. Jury System 104, 113; 
 Hallam's Middle Ages, note to Chapter VIII. 
 
 108 Forsyth Trial by Jury, 105; Lesser Hist. Jury System 113. 
 
 109 Select Pleas of the Crown (Selden Society), Cases No. 153, 157. 
 no Id. Case No. 153.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 25 
 
 the defendant was taken on an indictment for theft, and it was 
 adjudged the truth should be inquired of by the country. "And 
 twenty- four knights chosen for the purpose, say the same as 
 the said twelve jurors." m \Ve consequently see that at a period 
 forty years before Bracton's work was written, the use of two 
 juries had been instituted, and within a period of thirty years 
 after Bracton, the two juries were separate and distinct in cases 
 involving life at least. 112 
 
 In the three decades following the writing of Bracton's 
 treatise, the accusing body suffered marked changes which are 
 revealed by the pages of Britton. The number still continued 
 at twelve, the method of summoning and organizing them was 
 the same, but they now took this oath : "that they will lawful 
 presentment make of such chapters as shall be delivered to them 
 in writing and in this they will not fail for any love, hatred, 
 fear, reward, or promise, and that they will conceal the secrets, 
 so help them God and the Saints." 113 The presentments were 
 made in writing and indented, the inquest keeping one part, the 
 other being delivered to the justices. 114 An indictor could not 
 serve upon the petit jury in offences punishable with death, if 
 challenged by the defendant. 115 The inquest was required to 
 present those whose duty it was to keep in repair bridges, 
 causeways, and highways, for neglect of duty; 116 to inquire 
 into the defects of gaols and the nature thereof, who ought to 
 repair them, and who was responsible for any escapes which 
 had occurred ; 117 if any sheriff had kept in gaol those whom he 
 should have brought before the justices; 118 and of all cases 
 where the sheriff placed on the panel persons holding under 
 "twenty shillings to be on inquests and juries in the county." 119 
 
 The inquest now corresponded, in general, with the modern 
 
 in Select Pleas of the Crown (Selden Society) Case No. 157. 
 
 112 Britton (Legal Classic Series) 25. 
 
 113 Britton (Legal Classic Series) 17. 
 
 114 Id. p. 19. 
 
 115 Id. p. 25. 
 
 116 Id. p. 65. 
 
 117 Id. p. 72. 
 
 118 Id. p. 74. 
 
 119 Id. p. 75.
 
 26 THE GRAND JURY. 
 
 inquest except in point of number. We find this change taking 
 place in the time of Edward the Third, when the sheriff of the 
 county, in addition to the twelve returned by the bailiffs for 
 each hundred, returned a panel of twenty-four knights to in- 
 quire at large for the county, and this body was termed "/<? 
 graunde inquest "not for the purpose of distinguishing it as the 
 accusing body, but to distinguish it from the hundred inquests. 
 This grand inquest seems to have its foundation solely in the 
 action of the sheriff in returning such a panel, 120 for it was 
 authorized by no statute, and apparently had no existence in 
 prior custom. It, however, was destined to be permanent by 
 reason of its jurisdiction over the entire county and the fact 
 that its number of twenty-four was less unwieldy than the 
 twelves of the many hundreds in the county. 
 
 Consequently while the influence of "le graunde inquest' 
 grew, that of the hundred inquests declined, until finally they 
 ceased to present offenders and filled the office of petit jurors 
 only. 121 While we therefore see that the beginning of the 
 "grand jury" as known to us, occurs in time within the mind of 
 man, it is plain that this was but the new branch of a tree al- 
 ready firmly rooted among English institutions. It was dis- 
 tinctly a growth produced by the necessities of the times to 
 which its origin relates, and would no more have been a delib- 
 erate creation of a Parliament of the fourteenth century than 
 it would of the legislature to-day. Nor did this change, which 
 was apparently without warrant of law, materially alter the an- 
 cient institution. The necessity that twelve should concur re- 
 mained, and to-day in England and all of the states which 
 have not by statute provided otherwise, twelve jurors are all 
 that need be present upon the grand jury, but all must con- 
 cur. 122 The increase in the number of jurors having occurred 
 in a period when unanimity was requisite, if the increased num- 
 ber was authorized by law, undoubtedly the same principle, 
 which required twelve jurors or twelve or even thirty-six com- 
 
 120 King v. Fitch, Cro. Chas. 414. In this case it is said that "it is usual 
 to have more than twelve at the sheriff's pleasure" on an inquest of office. 
 
 121 3 Reeves Hist. Eng. Law 133. 
 
 122 Post 45, 46, 147-
 
 ITS ORIGIN, HISTORY 
 
 ^ 
 
 purgators (in such instances as compur] 
 lowed) to concur, must necessarily have reqi 
 four on the grand inquest to do likewise. That 
 required makes it quite probable that all over 
 lawfully upon the panel. 123 
 
 With the coming of the grand inquest to inquire at large^ 
 the county, and the disappearance of the accusing bodies of the > 
 hundreds, we practically complete what may be termed the per- 
 iod of formation in the development of the grand jury. So far 
 as we have considered it, we have found it to be an arm of the 
 government, acting as a public prosecutor for the purpose of 
 ferreting out all crime, the members of the inquest being at all 
 times bound to inform the court either singly or collectively 
 their reasons for arriving at their verdict and the evidence upon 
 which it was based. 124 The seed, however, had been sown in 
 Bracton's time, which was destined to change the grand jury 
 from a mere instrument of the crown to a strong independent 
 power which stood steadfast between the crown and the people 
 in the defence of the liberty of the citizen. 
 
 In enjoining secrecy upon the inquest in Bracton's time, and 
 in making it a part of the grand juror's oath as shown by Brit- 
 ton, 125 it was perhaps the idea of the crown that such a regula- 
 tion would prevent knowledge of the action of the inquest from 
 being conveyed to the defendant to allow his escape. That it 
 was for no other purpose will be seen by the fact that the jus- 
 tices might still fully interrogate the jurors as to how they 
 arrived at their verdict. 128 The power of interrogation does 
 not appear to have been exercised by the justices in all cases, 
 but only in such instances as the jury presented upon suspicion 
 and the defendant must purge himself by the ordeal, although 
 this practice continued after the ordeal was abolished. When 
 the separate trial jury became finally established, there no 
 longer existed any necessity for the justices to inquire of the 
 presenting jury, for the ordeal no longer existed, while the 
 
 123 Supra. 26. 
 
 124 Supra. 21. And see Forsyth Trial by Jury 171. 
 
 125 Britton (Legal Classic Series) 18. 
 
 126 Bracton-de legibus, (Sir Travers Twiss ed.) Vol. II, p. 455.
 
 28 THE GRAND JURY. 
 
 truth of the matter was fully inquired of by the country. 
 Further than this, it was more logical that the justices should 
 make inquiry of the trial jurors whose competency rested upon 
 their knowledge of the truth rather than the presenters, whose 
 accusation neither determined the truth nor falsity of the 
 charge and was not conclusive as in Glanville's time. When 
 the grand inquest came to present for the county, their personal 
 knowledge of the facts, in most cases, became more limited, and 
 the practice at this time of requiring the grand inquest to di- 
 vulge upon what ground their presentment was based, had 
 probably fallen into disuse. 
 
 It was in this period that the independence of the grand jury 
 became established. No longer required to make known to the 
 court the evidence upon which they acted, meeting in secret and 
 sworn to keep their proceedings secret by an oath which con- 
 tained no reservation in favor of the government, selected from 
 the gentlemen of the best figure in the county, 127 and without 
 regard to their knowledge of any particular offence, the three 
 centuries that followed the return of a panel of twenty-four 
 knights, witnessed its freedom of action from all restraint by 
 the court. The independence which the institution had at- 
 tained was soon to be put to the severest tests, but protected by 
 the cloak of secrecy and free from the control of the court as 
 to their findings, they successfully thwarted the unjust designs 
 of the government. 
 
 It was in the reign of Charles the Second that we find the 
 two most celebrated instances of the fearless action of the 
 grand jury in defending the liberty of the subject, although 
 subjected to the strongest possible pressure from the crown. 
 In 1 68 1 a bill of indictment for high treason against Stephen 
 College, the Protestant joiner, was submitted to a grand jury 
 of the City of London. Lord Chief Justice North compelled 
 the grand jury to hear the evidence in open court and of the 
 witnesses produced it was said, "It is certainly true that never 
 men swore more firmly in court than they did." The grand 
 jury demanded that the witnesses be sent to them that they 
 might examine them privately and apart, which the court per- 
 
 127 4 Bl. Com. 302.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 2Q 
 
 mitted to be done. After considering the matter for several 
 hours the grand jury ignored the bill. Upon being asked by 
 the Lord Chief Justice whether they would give a reason for 
 this verdict, they replied that they had given their verdict ac- 
 cording to their consciences and would stand by it. 128 The 
 foreman of this grand jury, Mr. Wilmore, was afterwards 
 apprehended upon a false charge, examined before the Council, 
 sent to the tower, and afterward forced to flee beyond the 
 seas. 129 
 
 In the same year an attempt was made to indict the Earl of 
 Shaftesbury for high treason. 130 As in College's case, the 
 grand jury desired to hear the evidence in private, but the 
 king's counsel insisted that the evidence be heard in open 
 court and Lord Chief Justice Pemberton assented. After 
 hearing the evidence the grand jury desired that they might 
 examine the witnesses apart in their chamber and the court 
 granted the request. After again hearing the witnesses and 
 considering their verdict they returned the bill "ignoramus," 
 upon which "the people fell a hollowing and a shouting." This 
 case is perhaps pointed out more often than any other as an in- 
 stance of the independent action of the grand jury, and while 
 it is not sought to minimize the action of the grand jurors, for 
 their stand was a bold one in view of the strong pressure which 
 was brought to bear upon them by the crown, still the side 
 lights when thrown upon it disclose other facts which may have 
 been potent in shaping the return of this body. 131 The Earl 
 of Shaftesbury was a very powerful nobleman, with influential 
 friends and adherents in the king's service, but his greatest 
 strength, perhaps, lay in the regard in which he was held by the 
 people. The sheriff who returned the grand jurors before 
 whom the case was laid, was an open adherent of Shaftesbury, 
 
 128 Growth of the Grand Jury System, (J. Kinghorn), 6 Law Mag. & 
 Rev. (4th S.) 375. Note to College's Trial, 8 How. State Tr. 549, 
 
 129 Growth of the Grand Jury System, (J. Kinghorn) 6 Law Mag. & 
 Rev. (4th S.) 373- 
 
 130 8 How. St. Tr. 774. 
 
 131 For an interesting discussion of this ignoramus see Hallam's Const 
 Hist England, Vol. II, p. 202 et seq.
 
 3O THE GRAND JURY. 
 
 and it is reasonable to assume that the panel was composed 
 wholly of those whose sympathies were inclined toward the 
 Earl. 132 It is not strange, therefore, that the proceeding by 
 the crown should meet with an ignominious defeat. 
 
 It was by reason of the failure of the crown to coerce grand 
 juries to its oppressive purpose, that the king's officials sought 
 a method whereby justice might be dispensed with results more 
 agreeable to their royal master. The statute of 3 Henry VIII, 
 C. 12, provided that the judges and justices should have power 
 to reform the panel by taking out the names of improper per- 
 sons and putting in others according to their discretion, and the 
 sheriff was then bound to return the panel as reformed. This 
 statute was enacted by reason of the abuse by the sheriffs of 
 their power in the selection and returning of grand jurors re- 
 sulting in -packing the panels with those who would carry out 
 the nefarious designs of the sheriff and those with whom he 
 might be acting. 133 
 
 This statute, Sir Robert Sawyer, the attorney general, 
 sought to employ to carry out the wishes of the crown. The 
 Court of Sessions endeavored to compel the sheriffs to return 
 the panels as they directed, but the sheriffs refused. The king 
 thereupon ordered that all the judges should attend on a cer- 
 tain day at the Old Bailey. Here the same proceeding was de- 
 sired to be had, but the sheriffs demurred and desired to consult 
 counsel. The court, however, urged that as all the judges 
 were agreed as to such being the law, there could be no neces- 
 sity for them to consult counsel, and thereupon the sheriffs re- 
 
 132 Earl of Shaftesbury's Case, 8 How. St. Tr. 775. The following ex- 
 cerpt from the report of the proceedings shows the attitude of the sheriff 
 toward the Earl : 
 
 Sheriff P. I desire the witnesses may be kept out of court, and called 
 one by one. 
 
 L. C. J. It is a thing certainly, the king's counsel will not be afraid of 
 doing; but sheriffs do not use to move anything of this nature in court, 
 and therefore 'tis not your duty, Mr. Sheriff, to meddle with it. 
 
 Sheriff P. It was my duty last time my lord, and appointed. 
 
 Att. Gen. (Sir Robert Sawyer). You were acquainted 'twas not your 
 duty last time, and you appear against the king. 
 
 133 4 Reeves Hist. Eng. Law 298.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 3! 
 
 turned the panel as directed. 134 Whatever change this may 
 have produced in the success of state prosecutions, was in any 
 event destined to be short lived, for the reign of Charles the 
 Second ended four years later, his successor, James the Sec- 
 ond, fled to France in 1688, and William of Orange ascended 
 the throne and a more liberal policy of state has since ensued. 
 
 One of the last known instances of the court attempting to 
 coerce a grand jury occurred in 1783, in Pennsylvania. Mr. 
 Oswald, the printer of the Independent Gazette, criticised the 
 conduct of the Supreme Court. The justices thereof, Chief 
 Justice McKean and Judge Bryan ordered him to be indicted 
 for libel, but the grand jury ignored the bill. The judges se- 
 verely reproved them in open court in an attempt to overawe 
 the inquest and sent them back to reconsider the bill, but the 
 jury refused to return an indictment. 135 
 
 When the settlement of America was begun by Englishmen, 
 they brought with them all the civil rights which they enjoyed 
 in their native land, and with them came the grand jury. 138 
 
 134 North's Examen Part 3, Chap. 8. Growth of the Grand Jury Sys- 
 tem, (J. Kinghorn), 6 Law Mag. & Rev. (4th S.) 376. 
 
 135 Francis Hopkinson's Works, Vol. i, p. 194. In Mississippi in 1902, 
 in the case of Blau v. State, 34 So. 153, will be found an instance where 
 the Court successfully coerced the grand jury into finding a true bill. A 
 motion to quash was overruled. On appeal the judgment was reversed 
 upon the ground of the improper influence exercised over the grand jury in 
 the finding of the indictment. 
 
 136 Lesser Hist. Jury System 128. Details of the earliest use of the 
 grand jury in the American Colonies are few and very unsatisfactory. In 
 the New Haven colony, theocratic notions caused the inhabitants to dis- 
 pense with trial by jury because no precedent for it could be found in the 
 laws of Moses. Fiske Beginnings of New England 314. In Boston in 
 1644, a certain Captain Keayne was tried for larceny by a jury and ac- 
 quitted: Id. 129; while in Plymouth in 1651, a grand jury presented one 
 Holmes for holding a disorderly meeting; Id. 218. In Pennsylvania, 
 the early cases in which reference to a grand jury is made, 
 have been collected by Hon. Samuel W. Pennypacker, in an address 
 entitled Pennsylvania Colonial Cases. The first case cited is that of the 
 Proprietor v. Charles Pickering, and arose in August, 1683: Pennsylvania 
 Colonial Cases, p. 32. The case of Proprietor v. Mattson was founded upon 
 an indictment by the grand jury charging the defendant with witchcraft: 
 Id. p. 35. Two presentments by the grand jury in 1685 called attention to
 
 32 THE GRAND JURY. 
 
 The institutions which they brought, naturally flourished in a 
 land so far away from the mother country, and consequently 
 removed from the attacks which were subsequently made by 
 the crown upon the liberties of the people. For nearly one 
 hundred years the colonies were allowed to exercise to the 
 fullest extent a greater degree of civil rights than at any time 
 had been permitted to the subject in England. The only re- 
 straint placed upon them was by the appointment of royal 
 governors, but even then there were no state prosecutions like 
 those being carried on in the mother country. Free from re- 
 straints which were there placed upon them, it was most natural 
 that the grand jury should exercise their great power in a man- 
 ner most calculated to insure the liberty and freedom of thought 
 of the people. In New York in 1735, an attempt was made to 
 indict John Peter Zenger, the editor and proprietor of a news- 
 paper called the Weekly Journal, for libel because of the man- 
 ner in which he held up to scorn the deeds of the royal gov- 
 ernor, but the grand jury ignored the bill. He was then pro- 
 ceeded against by an information filed by the attorney general 
 for the province, and after a trial in which he was defended by 
 the Philadelphia lawyer, Andrew Hamilton, was triumphantly 
 acquitted. 137 
 
 The Constitution of the United States, as adopted by the 
 states, contained no guaranty of presentment or indictment by 
 a grand jury, but this omission was remedied by the passing of 
 the first ten amendments, substantially a bill of rights, of which 
 Article V provides : "No person shall be held to answer for a 
 capital or otherwise infamous crime, unless on a presentment 
 or indictment of a grand jury, except in cases arising in the 
 
 various public evils and suggested certain public improvements: Id. p. 71- 
 72. In the case of Peter and Bridgett Cock v. John Rambo, the indictment, 
 which was found in 1685, is reproduced entire. This indictment seems to 
 have been read to the grand jury in open court at the request of counsel 
 for the prosecution. The finding thereon was "Wee find this bill. John King, 
 foreman." Id. p. 79. In 1703, in Pennsylvania, a grand jury presented a 
 number of individuals for various offences : Watson's Annals of Philadel- 
 phia, Vol. I, p. 308; Fiske The Dutch and Quaker Colonies in America, 
 Vol. II, p. 382. 
 
 137 The Dutch and Quaker Colonies (John Fiske), Vol. II, pp. 290-299.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 33 
 
 land or naval forces, 138 or in the militia when in actual service 
 in time of war or public danger ;".... 
 
 This provision applies solely to offences against the United 
 States and triable in the United States Courts, 139 and has refer- 
 ence not only to those offences which at common law were 
 capital or infamous, but to such as might thereafter be made 
 capital or infamous by legislation of Congress. 140 It has been 
 held not to affect prosecutions brought by means of an infor- 
 mation filed by the United States District Attorney in cases 
 where the offence does not constitute a capital or otherwise in- 
 famous crime. 141 In this respect the Constitution of the 
 United States assures to the citizen the same protection to his 
 liberty which the laws of England afford to the subjects of the 
 king. 
 
 The Fourteenth Amendment does not require the states to 
 prosecute crimes by means of indictment or prohibit them from 
 proceeding by information. The provision "due process of 
 law" refers only to the prosecution of offences by regular judi- 
 cial proceedings. 142 
 
 It has, therefore, become usual both in England and the 
 United States to proceed by information where the law gives 
 that right, and has frequently been employed in cases where a 
 bill has been submitted to, and ignored by, a grand jury. 
 
 The Constitution of Pennsylvania affords a still greater pro- 
 
 138 See Ex Parte Wildman, 29 Fed. Cas. 1232. 
 
 139 Hurtado v. California, no U. S. 516; Bollyn v. Nebraska, 176 U. S. 
 83; Twitchell v. Com. 7 Wall (U. S.) 321; Noles v. State, 24 Ala. 672; 
 State v. Wells, 46 Iowa, 662 ; State v. Barnett, 3 Kan. 250 ; State v. Jackson, 
 21 La. Ann. 574; Jackson v. Wood, 2 Cow. (N. Y.), 819; Prescott v. State, 
 19 Ohio, 184 ; State v. Shumpert, i S. C, 85 ; Pitner v. State, 23 Tex. App. 
 366; State v. Keyes, 8 Vt., 57; State v. Nordstrom, 7 Wash., 506; State r. 
 Baldwin, 15 Wash., 15. The powers of local government exercised by the 
 Cherokee Nation are local powers, not created by the Constitution, and 
 hence are not operated upon by Amendment V thereof, requiring a pre- 
 sentment by a grand jury in the case of a capital or other infamous crime; 
 Talton v. Mayes, 163 U. S., 376. 
 
 140 U. S. v. Brady, 3 Cr. Law Mag. 69. 
 
 141 Mackin v. U. S., 117 U. S. 328; Ex Parte Wilson, 114 U. S. 417. 
 
 142 Hurtado v. California, no U. S. 516; Kalloch v. Superior Court, 56 
 Calif. 229 ; Rowan v. State, 30 Wis. 129. 
 
 3
 
 34 THE GRAND JURY. 
 
 tection to the liberty of the citizen. Section 10 of the Declara- 
 tion of Rights provides: "No person shall for any indictable 
 offence, be proceeded against criminally, by information, ex- 
 cept in cases arising in the land or naval forces or in the militia 
 when in actual service in time of war or public danger, or by 
 leave of the court for oppression or misdemeanor in office." 
 
 As all offences are indictable offences in Pennsylvania, the 
 filing of an information has been very rarely employed, by rea- 
 son of the limited class of cases to which it can be applied. The 
 nature of this proceeding received judicial construction in an 
 early Pennsylvania case 143 decided by Mr. Justice Shippen, who 
 delivered the following opinion : "The present is the first in- 
 stance, that we recollect, of an application of this kind in Penn- 
 sylvania ; and on opening the case, it struck us to be within the 
 loth section of the ninth article of the constitution, which de- 
 clares that no person shall for any indictable offense, be pro- 
 ceeded against criminally by information, except in cases that 
 are not involved in the present motion. But, on consideration, 
 it is evident that the constitution refers to informations, as a 
 form of prosecution, to punish an offender, without the inter- 
 vention of a grand jury; whereas an information, in the nature 
 of a writ of quo warranto, is applied to the mere purpose of 
 trying a civil right and ousting the wrongful possessor of an 
 office." .... 
 
 Under the same statute the court made absolute a rule for an 
 information where the proceeding was against a justice of the 
 peace who was charged with a misdemeanor in office in taking 
 insufficient bail. 144 But where a prosecutor appeared to be 
 proceeding from vexatious motives, the court discharged the 
 rule for an information. 145 
 
 The grand jury of the present time is a wholly different in- 
 stitution from that originated by the Anglo-Saxons. The an- 
 cient institution was designed to aid the government in detect- 
 ing and punishing crime ; the tyranny of kings made it an in- 
 strument to defeat the government. Now it occupies the ano- 
 
 143 Res. v. Wray, 3 Ball. (Pa.) 490. 
 
 144 Res. v. Burns, i Yeates (Pa.) 370. 
 
 145 Res. v. Prior, i Yeates (Pa.) 206.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 35 
 
 malous position of a public accuser, while at the same time it 
 stands as a defender of the liberty of the people. 
 
 It remains to consider whether or not the grand jury is wor- 
 thy to be retained among the institutions of a free government 
 in this progressive age. The institution has been attacked with 
 great vehemence by writers of acknowledged ability, both 
 English and American, but at the same time it has been de- 
 fended with equal vigor by men no less able. That the insti- 
 tution and its workings are open to criticism no one will ques- 
 tion, but that the defects which are pointed out by its critics nre 
 of such a nature as to justify its abolition cannot be so readily 
 conceded. 
 
 The attacks upon it are based principally on three grounds : 
 
 1. That it is now a useless institution. 
 
 2. Its irresponsibility. 
 
 3. Its secrecy of action. 
 
 It is well said by an English opponent of the institution, 146 
 "ten centuries of usage give a very striking respectability to 
 any institution; ancl grand juries existed before the feudal law 
 and have survived its extinction. They are perhaps the oldest 
 of existing institutions; but if they are to continue, they must 
 rest on their continuing utility, not on their antiquity, for fu- 
 ture toleration." 
 
 It is urged with great earnestness and the argument contains 
 much merit that the system which has been in force the past 
 three hundred years of giving a defendant a preliminary hear- 
 ing before a magistrate, makes the work of the grand jury in 
 this class of cases superfluous. 147 In many instances this argu- 
 ment would seem to be well founded, since the finding of a 
 true bill by the grand jury in cases returned to the district at- 
 torney by the committing magistrates would be but a ratifica- 
 tion of the action of the magistrate, but it is not true in all 
 cases. There are many cases of a trifling nature which are re- 
 turned by the committing magistrates and when brought be- 
 fore the grand jury the indictments are ignored. In counties 
 where the volume of business is small, it would be of little con- 
 
 146 Grand Juries 29 L. T. 21. 
 
 147 Bentham Rationale of Judicial Evidence, Vol. II, p. 312.
 
 36 THE GRAND JURY. 
 
 sequence if the grand jury found true bills even in these cases, 
 but in counties where the volume of business is large, and this 
 is particularly true of the great cities which frequently are co- 
 extensive with the boundaries of the county, it then becomes of 
 vital importance that there should be a tribunal to sift from the 
 great mass of cases those which are too trifling in their nature 
 to require further prosecution. And this is a duty which could 
 not well devolve upon a single officer, for unless testimony was 
 heard by him there would be no feasable way to determine 
 which cases should be prosecuted and which should be ignored. 
 If evidence is therefore to be heard, it is wiser that it be heard 
 and considered by a body impartially selected from the people, 
 than by a single officer whose training would incline him to 
 find those grounds upon which the prosecution might be sus- 
 tained. 
 
 While in ignoring bills of indictment it frequently happens 
 that defendants are set free who undoubtedly merit punishment, 
 it is idle to charge that this is a defect in the system or a reason 
 why it should be abolished, for the same result is of frequent 
 occurrence where defendants are tried before petit juries, 
 when the evidence is heard in open court. If, when the grand 
 jurors hear only the evidence in favor of a prosecutor, given by 
 witnesses summoned by the district attorney, and examined by 
 him before the grand jury, they are unable to return a true bill, 
 how can it reasonably be asserted that a petit jury, where the 
 entire twelve must concur, would have found the defendant 
 guilty when the grand jury, which usually exceeds this num- 
 ber, are unable to muster twelve who concur in finding the bill. 
 To charge a grand jury with failure to act in furtherance of 
 justice, under such circumstances, is an unwarranted imputa- 
 tion upon the judgment of intelligent men and is only made by' 
 writers who give the subject a superficial consideration. 148 
 That because the minority view the evidence in a different 
 
 148 Hon. Daniel Davis, Attorney General of Massachusetts, speaking of 
 his own experience says : "But the experience of thirty years furnishes 
 an answer most honorable to the intelligence and integrity of that body of 
 citizens from which the grand jury are selected; and that is, that they al- 
 most universally decide correctly :" Precedents of Indictments, p. 21.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 3/ 
 
 light from the majority is to say the majority have come to 
 the wrong conclusion, is a proposition not recognized in this 
 country. The defendant, no matter what the evidence against 
 him may be, is presumed to be innocent until proven guilty, and 
 if the prosecuting officer, with all the power he possesses within 
 the sealed doors of the grand jury room, is unable to convince 
 twelve out of those present, of the guilt of the defendant, he 
 cannot well say that he could do more before the petit jury, 
 where the defendant has the additional advantages of counsel 
 and witnesses in his defence, and a trial judge who may be 
 called upon to rule out incompetent and irrelevant evidence. 
 There are undoubtedly many cases in which true bills are found 
 where incompetent and irrelevant evidence has been given be- 
 fore the grand jury and formed the inducement to their action. 
 
 The fact that sometimes they indict innocent persons is to be 
 deplored, but as an argument in favor of the abolition of the in- 
 stitution is without merit. The right still remains for such de- 
 fendant to establish his innocence before a petit jury, where he 
 is aided by his counsel and may have witnesses in his behalf. 
 If, in such cases, the prosecution was by information filed by 
 the district attorney upon the return of the committing magis- 
 trate, there would be no possible chance of the innocent de- 
 fendant escaping trial. Primarily the object of the grand jury 
 is not to protect the innocent, for all accused persons are pre- 
 sumed innocent until the contrary be shown, but is to accuse 
 those persons, who, upon the evidence submitted by the prose- 
 cutor, if uncontradicted, would cause the grand jurors to be- 
 'ieve the defendant guilty of the offence charged. 149 When, 
 therefore, the evidence is of such a nature as to justify the re- 
 turn of an indictment by the grand jury, it is only proper that 
 whether innocent or guilty, the accused should be put upon his 
 trial. 
 
 It is true that the grand jury ordinarily do but little more 
 than review the judgment of the committing magistrate, and 
 for this reason the institution is said to be useless. But it is 
 eminently fitting that such a body should exist to review the 
 judgment of such magistrates. It is absurd to contend tlint 
 
 149 Post 105, 141, 142.
 
 38 THE GRAND JURY. 
 
 in a government such as ours, composed of a system of checks 
 and balances, a committing magistrate is an individual whose 
 discretion does not require review. They are chosen as a rule 
 from men who have but little knowledge of the law and whose 
 principal qualification is the political service rendered to their 
 party and not the personal fitness of the individual for the 
 office. In a large number of cases the warrant will be issued 
 by a magistrate, known either to the prosecutor or his counsel, 
 who invariably is selected because of the acquaintanceship. 
 That a defendant who is committed or held in bail under such 
 circumstances should be entitled to hare the judgment of the 
 magistrate reviewed by a tribunal sufficiently large and without 
 personal interest in the case, is but a reasonable requirement. 
 Not that the magistrate may have acted improperly or violated 
 the terms of his oath, but that prosecutions which are or may 
 have been begun under such conditions, shall be declared by an 
 impartial body to be well founded in fact before a defendant 
 shall be obliged to answer. 
 
 An English writer 150 discusses the subject in this language: 
 "The criminal who has been committed on the well considered 
 opinion of the responsible magistrate is set at large by the in- 
 fluence of the random impressions of twenty-three irresponsible 
 gentlemen. Such an enlargement is in itself a slander or a 
 serious charge against the committing magistrate, and logically 
 ought to be almost conclusive evidence of his unfitness to act 
 either from malice or incapacity." 
 
 The English system of committing magistrates is of a some- 
 what different nature from that of Pennsylvania. They have 
 there what are known as stipendiary magistrates, that is, men 
 who are paid fixed salaries for their services, but are required 
 either to be learned in the law or to be accompanied by a duly 
 articled clerk. 151 If the logic of the writer above quoted is to 
 be pursued to a conclusion, it means when the appellate court 
 reverses the court below that that is conclusive evidence of the 
 unfitness of such judge to fill his high office, notwithstanding 
 
 150 Grand Juries 29 L. T. 21. 
 
 151 Id.
 
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 39 
 
 he has adjudged correctly in the great majority of cases which 
 have come before him. 
 
 If it be said the cases are not analogous in that the grand 
 jurors are laymen who review the decision of a magistrate 
 learned in the law, it may be answered that the laymen review 
 not the law, but the facts of the case, and as to those facts all 
 the legal learning which the magistrate may possess will not 
 make him a better judge of the truth of the facts or the credi- 
 bility of the witnesses. As to the facts, he is but one layman 
 against twenty-three, and all experience has taught that the lat- 
 ter body are far more apt to arrive at a correct conclusion. 
 The same author who contends that the judgment of the sti- 
 pendiary magistrate is superior to that of the twenty-three 
 grand jurors would probably repel the assertion that the judge 
 who presides at the trial is more likely to arrive at a correct 
 conclusion upon disputed facts than the twelve jurors sworn to 
 pass upon them, yet the two cases are precisely analogous. 
 Upon all questions of fact, the composite make-up of the twelve 
 or the twenty-three vests in such body a knowledge which no 
 one man can possess and is more productive of correct findings. 
 It is given neither to one man nor to any body of men to invar- 
 iably arrive at correct conclusions, but because they at times 
 may err, it affords no ground for saying that by reason of such 
 error they are either ignorant, malicious or incompetent. 
 
 Upon this point an English writer 152 pertinently remarks, 
 "Moreover the stipendiary magistrates we have are not all such 
 oracles of wisdom that we should conclude that the grand jury 
 must always be wrong and the magistrate right upon the ques- 
 tion of whether there is a prima facie case." 
 
 It is thought by one writer that the grand jury is a useless 
 institution because it no longer occupies its original position, 
 and by reason of this fact should be abolished. 163 Were we to 
 
 152 Grand Juries, 67 L. T. 381. 
 
 153 On Grand Juries, (E. E. Meek) 85 Law Times 395. The ab- 
 surdity of this argument is brought to our attention in the case of 
 Hurtado v. California, no U. S. 516, in which it was contended that the 
 words "due process of law" as used in the Fourteenth Amendment to thr 
 Constitution of the United States was the equivalent of the phrase "law 
 of the land" in the twenty-ninth chapter of Magna Charta and had acquired
 
 4O THE GRAND JURY. 
 
 apply this reasoning to the various branches of the law at the 
 present day, to our courts, our institutions, and our procedure, 
 nearly all must be swept away, for but little of it retains its 
 original position. Things have changed with the progress of 
 the centuries and it is the height of absurdity to contend that 
 because the grand jury is no longer a power in the hands of 
 unscrupulous persons to oppress those who hindered or inter- 
 fered with their improper designs as it was in times past, it no 
 longer occupies its original position and should be cast aside. 
 
 That the grand jury is an irresponsible body is admitted and 
 it is this want of responsibility which the opponents of the in- 
 stitution seize eagerly upon in their endeavor to show why the 
 institution should be abolished. An American writer 154 thus 
 expresses his views: "The principal objection which can be 
 urged against the grand jury, as now constituted, is the abso- 
 lute personal irresponsibility of the individual juror attendant 
 upon the performance of his duties. He is a law unto himself ; 
 no power can regulate him and no power can control him. He 
 can be called before no earthly tribunal, except his own con- 
 science, to account for his action. He can pursue an enemy for 
 personal motives of revenge ; he can favor a friend or political 
 associate ; he can advance and maintain before the jury by argu- 
 ment ideas that he would never father in any other place; he 
 can shirk responsibility by voting to turn the guilty loose, plead- 
 ing for mercy for the confessed criminal and the next moment 
 
 a fixed, definite, and technical meaning ; and by reason of this amendment a 
 State could not proceed against a defendant for felony except upon an in- 
 dictment found by a grand jury. Mr. Justice Matthews who delivered 
 the opinion of the Court meets this argument in this language : "But to hold 
 that such a characteristic is essential to due process of law would be to deny 
 every quality of the law but its age, and to render it incapable of progress 
 or improvement. It would be to stamp upon our jurisprudence the un- 
 changeableness attributed to the laws of the Medes and Persians. 
 
 "This would be all the more singular and surprising in this quick and 
 active age when we consider that, owing to the progressive development of 
 legal ideas and institutions in England, the words of Magna Charta stood 
 for very different things at the time of the separation of the American colo- 
 nies from what they represented originally." 
 
 154 The Abolition of the Grand Jury, (C. E. Chiperfield) 5 Am. Law 
 487.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 4! 
 
 cast his vote to indict the innocent, but friendless accused; 
 ignoring in order to do so his oath and every distinction be- 
 tween hearsay and competent evidence. The state's attorney is 
 powerless to protest against or prevent these insane antics upon 
 the juror's part, and the court is as equally unable to prevent 
 the denial of justice." 
 
 Undoubtedly it is within the power of a grand juror to act 
 in the manner thus described, and that this is sometimes done 
 will hardly be questioned. That, however, it is of such uni- 
 versal occurrence as to seriously affect the administration of 
 justice and demand the abolition of the institution is not the 
 fact. To contend that it is, is to say that on every grand jury 
 there are at least twelve men so lost to all sense of truth, honor 
 and justice and so utterly oblivious to the requirements of their 
 oath, that they will perjure themselves in order to do the will 
 of a fellow juror. 
 
 We have only to turn back to early English history to see 
 how the grand jury was so used for improper purposes that the 
 statute of 3 Henry VIII, C. 12, was enacted, giving to the 
 judges and justices the right to reform the panels of grand 
 jurors returned by the sheriff, and .then compelling the sheriff 
 to make return of the panel so reformed. It is recited by the 
 preamble of the above statute, 155 "That many oppressions had 
 been, by the untrue demeanor of sheriffs and their ministers, 
 done to great numbers of the king's subjects, by means of re- 
 turning at sessions holden for the bodies of shires, the names 
 of such persons, as for the singular advantage of the said 
 sheriffs and their ministers ; by reason whereof many substan- 
 tial persons (the king's true subjects) had been wrongfully in- 
 dicted of divers felonies and other misbehaviour by their 
 covin and falsehood ; and also sometimes Ly labor of the said 
 sheriffs, divers great felonies had been concealed and not pre- 
 sented by the said persons, by the said sheriffs and their minis- 
 ters partially returned, to the intent to compel the offenders to 
 make fines, and give rewards to the said sheriffs and their min- 
 isters." 
 
 Lord Coke 156 also directs attention to this evil and points 
 
 155 Hawk. PI. C. Book 2, Ch. 25, Sec. 32. 
 
 156 Co. Inst., Vol. Ill, p. 33.
 
 4~ THE GRAND JURY. 
 
 out the statutory remedy. In Scarlet's case, 157 one Robert 
 Scarlet had unlawfully procured himself to be placed upon a 
 panel of grand jurors and caused indictments to be found 
 against innocent persons. The court suspected that some- 
 thing was wrong, and inquired of the inquest as to the evidence 
 upon which the bills had been found, which disclosed the 
 agency of Scarlet and brought punishment upon him. 
 
 At the present day it cannot justly be said that the grand 
 jury is wholly irresponsible. It is true that they have great 
 freedom of action and the reasons which induce their action 
 cannot be inquired into. 158 But if they have acted from im- 
 proper motives or been improperly influenced, and this could 
 not be made to appear upon a motion to quash the indictment, 
 it is still within the power of the district attorney with leave 
 of court, to enter a nolle pros or submit the bill, without trial, 
 to a petit jury and have a verdict of not guilty rendered 
 thereon. On the other hand, if the grand jury improperly re- 
 ject a bill, it is still competent for the district attorney to lay 
 the matter before a subsequent grand jury, which may act 
 otherwise. 159 The ability of the grand jurors to work harm by 
 the abuse of their power is, therefore, more fancied than real. 
 
 Nor can there be said to be any more merit in the complaint 
 that the secrecy surrounding the grand jury is an evil which 
 should be done away with. They deliberate in secret, but the 
 petit jury does likewise, and no one would contend for a mo- 
 ment that a petit jury should deliberate in public. What rea- 
 son can then be advanced why a grand jury should deliberate 
 in public? Nor would the hearing of the testimony in public 
 be of any advantage unless counsel for the defence were per- 
 mitted to cross-examine the witnesses produced, which would 
 necessitate a judge being present, and such a course as this 
 would neither be desirable nor productive of good. If the 
 closed doors of the grand jury room are an incentive to per- 
 jury, the witness must also perjure himself before the petit 
 jury to make his false testimony effective. And as only the 
 witnesses for the prosecution are heard, it is very unlikely that 
 
 157 12 Co. 98. 
 
 158 Post 119, 166. 
 
 159 Post 112, 152.
 
 ITS ORIGIN, HISTORY AND DEVELOPMENT. 43 
 
 a defendant would be set free by reason of the prosecution's 
 witnesses committing perjury in his behalf. 
 
 The partisan feeling of the opponents and the defenders of 
 the grand jury usually leads them into violent and unwarranted 
 condemnation or rash and extravagant praise. Chief Justice 
 Shaw, 180 of the Supreme Court of Massachusetts, in a charge 
 to a grand jury in 1832, admirably set forth the conservative 
 view of this institution. "In a free and popular government," 
 he said, "it is of the utmost importance to the peace and har- 
 mony of society, not only that the administration of justice and 
 the punishment of crimes should in fact be impartial, but that it 
 should be so conducted as to inspire a general confidence, and 
 that it will and must be so. To accomplish this, nothing could 
 be better contrived than a selection of a body, considerably nu- 
 merous, by lot, from amongst those, who previously and with- 
 out regard to time, person, or occasion, have been selected from 
 among their fellow citizens, as persons deemed worthy of this 
 high trust by their moral worth, and general respectability of 
 character. And although under peculiar states of excitement, 
 and in particular instances, in making this original selection, 
 party spirit, or sectarian zeal may exert their influence, yet it 
 can hardly be expected that this will happen so frequently or 
 so extensively, as seriously to affect the character or influence 
 the deliberations of grand juries. Should this ever occur, to 
 an extent sufficient to weaken the confidence now reposed in 
 their entire impartiality, and thus destroy or impair the utility 
 of this noble institution, it would be an event, than which none 
 should be more earnestly deprecated by every lover of impartial 
 justice, and every friend of free government. 
 
 "Were the important function of accusation placed in the 
 hands of any individual officer, however elevated, it would be 
 difficult to avoid the suspicion of partiality or favoritism, a dis- 
 position to screen the guilty or persecute the innocent. But the 
 grand jury, by the mode of its selection, by its number and 
 character, and the temporary exercise of its powers, is placed 
 beyond the reach or the suspicion of fear or favor of being 
 overawed by power or seduced by persuasion." 
 
 160 Charge to Grand Jury, 8 Am. Jurist 216.
 
 44 THE GRAND JURY. 
 
 In some of the Western States the grand jury has either been 
 abolished, or the constitution has been altered to permit this to 
 be done. 161 In California, where the district attorney files 
 an information in all cases of felony and misdemeanor, the 
 statutes make provision for a grand jury and confer upon it 
 greater inquisitorial power than has ever been conceded to it in 
 those states which proceed with it according to the common 
 law. 162 
 
 The conservatism of the Eastern States has caused the reten- 
 tion of the grand jury among their institutions. Whether the 
 policy of those states which have abolished it is a wise one or 
 not cannot yet be determined. This can only be learned after 
 the system which has supplanted it has stood the test through 
 the coming years and emerged unscathed and with honor from 
 great crises. But when it is proposed to turn aside from a 
 course which has been followed for centuries to new and un- 
 tried methods, the warning of Judge King 163 applies with great 
 force : "Any and every innovation in the ancient and settled 
 usages of the common law, calculated in any respect to weaken 
 the barriers thrown around the liberty and security of the citi- 
 zens, should be viewed with jealousy, and trusted with cau- 
 tion." 
 
 161 See Constitutions of Colorado, 1876, Art. II, Sec. 23; Illinois, 1870, 
 Art II, Sec. 8; Indiana, 1851, Art. VII, Sec. 17; Nebraska, 1875, Art. I, 
 Sec. 10. See Thompson & Merriam on Juries, Sec. 471-2. In Michigan, 
 How. Ann. St., Sec. 9554, dispenses with grand juries unless summoned 
 by the order of the judge. See People v. Reigel, 78 N. W., 1017. As to 
 Montana, see State v. King, 24 Pac., 265. Grand Juries abolished in Kan- 
 sas by Act of Feb. 12, 1864, Sec. 7, and see Rice v. State, 3 Kan. 141. In 
 Minnesota the people, by a large majority vote, have adopted a constitu- 
 tional amendment abolishing the grand jury. The Literary Digest, Vol. 
 3<>, P. 50. 
 
 162 See Grand Juries in the United States, 7 Law Journal, 729. 
 Penal Code Calif., Sec. 915-929. The Constitution of California, 
 Art. I, Sec. 8, provides : "Offences heretofore required to be prosecuted 
 by indictment, shall be prosecuted by information, after examination and 
 commitment by a magistrate, or by indictment, with or without such ex- 
 amination and commitment, as may be prescribed by law. A grand jury 
 shall be drawn and summoned at least once a year in each county." 
 
 163 Case of Lloyd and Carpenter, 3 Clark (Pa.) 188.
 
 PART II 
 
 ORGANIZATION AND QUALIFICATIONS. 
 
 The grand jury is a body composed of not less than twelve 1 
 and not more than twenty-three persons; 2 and in the Federal 
 courts it is provided by Act of Congress that the number shall 
 not be less than sixteen nor more than twenty-three. 3 Twenty- 
 four, however, are summoned, but never more than twenty- 
 three are sworn, lest there be two full juries, one of whom is for 
 finding a true bill, the other for ignoring it. 4 Where twenty- 
 four were sworn the indictment was quashed, 5 and this decis- 
 ion is undoubtedly in accord with the reason of the rule. 
 
 If twenty- four are sworn and serve upon the panel, then the 
 reason of the rule that there shall not be two full juries is vio- 
 lated, and while the jurors may be interrogated as to whether 
 
 1 Ostrander v. State, 18 Iowa, 435 ; State v. Green, 66 Mo., 631 ; State r. 
 Clayton, n Rich. Law (S. C.) 581; Pybos v. State, 3 Humph. (Tenn.) 49; 
 State v. Kopp, 34 Kan., 522 ; State v. Brainerd, 56 Vt., 532 ; State v. Perry, 
 29 S. E., 384. The record must show that the grand jury consisted of 
 twelve men or the judgment will be reversed. Carpenter v. State, 4 How. 
 (Miss.) 163. 
 
 2 4 Bl. Com. 302. In Utah the statute provides that a grand jury must 
 consist of twenty-four. Brannigan v. People, 3 Utah, 488. 
 
 3 R. S. U. S. Sec. 808; i Whart. Cr. Laws, Sec. 4633. In Reynolds v. 
 U. S., 98 U. S. 145, it was held that Sec. 808 of the Revised Statutes ap- 
 plied only to circuit and district courts of the United States; territorial 
 courts being governed by the territorial laws then in force. 
 
 4 i Whart. Cr. Law, Sec. 465, (7th ed.). 
 
 5 People v. King, 2 Caines (N. Y.) 98; Com. v. Salter, 2 Pears. (Pa.) 
 461; Com. v. Leisenring, Id. 466; In Com. v. Dietrich, 7 Pa. Supr. 
 Ct. Rep. 515, a presentment of the grand jury was signed by the twenty- 
 four grand jurors, but this question was not raised until after a trial on 
 the merits. In his opinion, Rice, P. J., says, "Its action was none the less 
 valid because it was preceded by the unanimous presentment of a former 
 grand jury." See King v. Marsh, i N. & P. 187. 
 
 45
 
 46 THE GRAND JURY. 
 
 twelve concurred in finding the bill, they will not be permitted 
 to make known how many either voted for or against it. 6 Tl.e 
 law's requirement of secrecy concerning the manner in which 
 the grand jury acts, therefore makes it imperative that the rea- 
 son of the rule be adhered to strictly. If more than the num- 
 ber prescribed by law are sworn on the grand jury, even though 
 all be regularly drawn, summoned and returned, it cannot legal- 
 ly act. 7 All on the panel in excess of the legal number are not 
 bound by the oath and their presence in the grand jury room 
 destroys its secrecy of action, and will vitiate the indictment. 
 If more than the legal number of grand jurors are drawn, sum- 
 moned, empaneled and sworn, but only the legal number actual- 
 ly serve, the defendant will in no manner be prejudiced thereby 
 and an indictment found by such grand jury will be sustained. 8 
 While the presence of more than the maximum number of 
 grand jurors will invalidate an indictment, the presence of 
 less than the minimum number will not always work this re- 
 sult 9 unless there should be present less than the legal number 
 required to find an indictment. The general rule seems to be 
 that where the statute specifies a certain number shall consti- 
 tute the grand jury and less than this number be empaneled, the 
 grand jury is illegally constituted ; but if the legal number be 
 empaneled and afterward some of the grand jurors absent 
 themselves, an indictment will be valid if found by the number 
 of grand jurors required to concur in its finding. 10 
 
 6 Post 118, 121, 166. 
 
 7 Harding v. State, 22 Ark. 210; People v. Thurston, 5 Calif. 69; Keech 
 v. State, 15 Fla. 591 ; Downs v . Com. 92 Ky. 605 ; Com. v. Wood, 2 Cush. 
 (Mass..) 149; Miller v. State, 33 Miss. 356; Box v. State, 34 Miss. 614; 
 People v. King, 2 Caines (N. Y.) 98; Com. v. Salter, 2 Pears (Pa.) 461; 
 Com. v. Leisenring, Id. 466; Lott v. State, 18 Tex. App. 627; Wells v. 
 State, 21 Id. 594 ; Harrell v. State, 22 Id. 692 ; Ex Parte Reynolds, 34 S. W. 
 120 ; Ex Parte Ogle, 61 S. W. 122 ; Ogle v . State, 63 S. W. 1009. 
 
 8 Turner v. State, 78 Ga. 174; Crimm v. Com., 119 Mass. 326; State V. 
 Watson, 104 N. C. 735 ; State v. Fee, 19 Wis. 562. And see Wallis v. State, 
 54 Ark. 611 ; Leathers v. State, 26 Miss, 73. 
 
 9 People v. Simmons, 119 Calif, i ; State v. Perry, 29 S. E. 384. But see 
 State v. Cooley, 75 N. W. 729. 
 
 10 Gladden v. State, 12 Fla. 562; Straughan v. State, 16 Ark. 37; In re 
 Wilson, 140 U. S. 575. And see Post 56, 147.
 
 ORGANIZATION AND QUALIFICATIONS. 47 
 
 While the decisions upon this point are by no means uni- 
 form, the later cases hold that the grand jury having consisted 
 of the prescribed number at the time it was empaneled, and 
 thereby was a lawful body when formed, it remains a lawful 
 body thereafter even though less than the minimum number 
 remain, provided the number required to find a true bill are 
 present at its finding. It must be remembered, however, that 
 this question can only present itself where a statute has been 
 enacted prescribing the minimum number of grand jurors 
 necessary to form a legal grand jury and then providing that 
 a number less than the minimum may find a true bill. This 
 question could not arise with the common law grand jury. 
 There the minimum number to constitute a lawful body is fixed 
 at twelve, and this entire number must concur in order to find a 
 true bill. If less than the minimum in such case be present, a 
 bill found by such lesser number would be void. 
 
 The leading case upon this question is In re Wilson 10 * 
 where the United States Supreme Court refused to discharge 
 upon a writ of habeas corpus a defendant who had been in- 
 dicted by a grand jury consisting of fifteen persons, twelve 
 concurring, where the statute provided that the grand jury 
 should consist of not less than seventeen nor more than twenty- 
 three, and requiring only the concurrence of twelve for the 
 finding of a true bill. Mr. Justice Brewer, who delivered the 
 opinion of the court in this case says : 
 
 "By petitioner's argument, if there had been two more grand 
 jurors it would have been a legal body. If the two had been 
 present, and had voted against the indictment, still such oppos- 
 ing votes would not have prevented its finding by the concur- 
 rence of the twelve who did in fact vote in its f3.vor. It would 
 seem, therefore, as though the error was not prejudicial to the 
 substantial rights of the petitioner." 
 
 The manner of selecting and procuring the attendance of 
 grand jurors is now wholly regulated by statute in the various 
 states. While the statutes differ in the method provided for 
 procuring the attendance of grand jurors, the general practice 
 in many of the states is for the court to issue an order or pre- 
 
 10* In re Wilson, 140 U. S. 575.
 
 48 THE GRAND JURY. 
 
 cept 11 to the proper official 12 directing that a venire issue 13 
 which commands the persons charged with such duties 14 to 
 draw and summon a panel of grand jurors. The venire should 
 be under the seal of the court, 15 although it has been held not 
 to be void when issued without the seal. 16 If it is improperly 
 tested the writ may be amended. 17 
 
 In some states it is provided by statute that the grand jurors 
 shall be drawn or summoned at a certain time prior to the ses- 
 sion of the court. Where this requirement has been neglected 
 or disregarded the indictment in some instances has been 
 
 11 This need not be entered of record unless directed by statute: 
 Mesmer v. Com., 26 Gratt. (Va.) 976. A verbal order is sufficient; U. S. v. 
 Reed, 27 Fed Cas. 727. Where an indictment is found by a grand jury sum- 
 moned by a sheriff without precept, the indictment will be quashed : Nich- 
 olls v. State, 5 N. J. Law 539; Chase v. State, 20 N. J. Law 218; State v. 
 Cantrell, 21 Ark. 127. But see Hess v. State, 73 Ind. 537. In McGuire v. 
 People, 2 Parker Cr. Rep. (N. Y.) 148, it was held that if no precept is- 
 sued the defendant could avail himself of such irregularity after verdict. 
 Where a .statute authorized the sheriff to summon grand jurors without pre- 
 cept, but he neglected to have a grand jury in court on the first day of the 
 term, it was held that the judge could issue a precept to the sheriff, direct- 
 ing him to produce a grand jury at a later day; the statute did not take 
 from the court the right to issue its precept: Challenge to Grand Jury, 
 3 N. J. Law Jour. 153. That the order was not served upon the sheriff 
 is not error, he having regularly summoned a grand jury; People v. Cui- 
 tano, 15 Calif. 327. 
 
 12 That the venire was issued by a person not legally qualified to act was 
 held not a good objection in arrest of judgment: Peters v. State, n Tex. 
 762. 
 
 13 State v. Lightbody, 38 Me. 200. A venire need not issue: Bird v. 
 State, 14 Ga. 43; Boyd v. State, 46 Tenn. (6 Cold.) I ; Robinson v. Com. 88 
 Va. 900; Combs v. Com., 90 Va. 88. 
 
 14 Conner v. State, 25 Ga. 515. That the venire is not addressed to the 
 proper officer will not avail a defendant where the writ was actually re- 
 ceived and executed by the proper person : State v. Phillips, 2 Ala. 297. 
 
 15 State v. Lightbody, 38 Me. 200; State v. Fleming, 66 Me. 142; People 
 v. McKay, 18 Johns (N. Y.) 212. 
 
 16 Maher v. State, i Port. (Ala.) 265; Bennett v. State, i Martin & 
 Yerger (Tenn.) 133; State v. Bradford, 57 N. H. 188. 
 
 17 People -v. The Justices, 20 Johns (N. Y.) 310; Davis v. Com. 89 Va. 
 132. In State v. Bradford, 57 N. H. 188, it was held that the venire need 
 not bear teste of the chief, first or senior justice.
 
 ORGANIZATION AND QUALIFICATIONS. 49 
 
 quashed ; 18 in others it has been sustained upon the ground that 
 this provision of the statute is but directory and a failure to 
 comply with it will in no manner prejudice the defendant. 19 
 
 A venire which directs the sheriff to summon good and law- 
 ful men is sufficient ; it need not set forth the qualifications re- 
 quisite to constitute them good and lawful grand jurors. 20 It 
 should set forth correctly the names of the persons to be sum- 
 moned; failure to observe this requirement affords good 
 ground upon which a defendant may move to set aside the in- 
 dictment. It has, however, been held that the omission of a 
 middle name, the insertion of a wrong initial, the omission of 
 an initial, or the mis-spelling of a name will in general be 
 no ground for quashing an indictment, there being no proo 
 that a person other than the one summoned bears the name as 
 set forth in the writ and was the person designated thereby to 
 be summoned as a grand juror. 21 
 
 It is the duty of the officer charged with the execution of the 
 venire to make a return thereto, showing the manner in which 
 the command of the writ was obeyed and the authority by 
 which he acted. 22 Should he fail to do so, an indictment will 
 not be quashed for this reason, but. the court will, on its atten- 
 tion being directed to the fact, order such officer to make a re- 
 turn, or sign such return if made and not signed. 23 The court 
 
 18 State v. Lauer, 41 Neb. 226; Thorpe v. People, 3 Utah, 441. 
 
 19 State v. Smith, 67 Me. 328 ; State v. Smith, 38 S. C. 270. 
 
 20 State v. Alderson, 10 Yerg. (Tenn.) 523. And see Welsh v. State, 96 
 Ala. 92; Stewart v. State, 98 Ala. 70. 
 
 21 Rampey v. State, 83 Ala. 31 ; State v. Armstrong, 167 Mo. 257 ; State 
 v. McNamara, 3 Nev. 70 ; State v. Van Auken, 68 N. W. 454. See Turner 
 v. State, 78 Ga., 174. In Nixon v. State, 68 Ala. 535, a juror regularly 
 drawn was falsely personated by another person of the same surname, who 
 was sworn as a member of the grand jury and a plea in abatement was sus- 
 tained. 
 
 22 State v . Rickey, 9 N. J. Law, 293 ; Challenge to Grand Jury, 3 N. J. 
 Law Jour. 153; Chase v. State, 20 N. J. Law 218; State v. Cough, 49 Me. 
 573. And see State v. Powers, 59 S. C. 200. It is not necessary that the 
 return should show that the sheriff served the writ upon the jury com- 
 missioners, the record showing that the writ issued and that the commis 
 sioners acted in accordance therewith : State v. Derrick, 44 S. C. 344. 
 
 23 Com. v. Chauncey, 2 Ashm. (Pa.) 101 ; State v. Derrick, 44 S. C. 344, 
 
 4
 
 50 THE GRAND JURY. 
 
 has allowed it to be signed after verdict of guilty in a capital 
 case. 24 
 
 In this case it was said by Chief Justice Parker : "Here the 
 return was duly made, except that the officer through inadver- 
 tence had omitted to affix his signature; and this he has now 
 done, and we think properly, by the permission of the court. 
 It is true, that in a capital case the court would not permit the 
 prisoner to be prejudiced by an amendment, but they are not 
 bound to shut their eyes to the justice of the case, when an 
 error in matter of form can be rectified without any prejudice 
 to him." 
 
 The return may be amended to accord with the facts. 25 
 Where it happens that less than the requisite number of per- 
 sons are present to constitute a legal grand jury, it is ordinarily 
 provided by statute how sufficient jurors shall be procured to 
 bring that body up to the legal number. The court issues an 
 order to the sheriff or other officer charged with the duty of 
 summoning the jurors, directing the number to be returned 28 
 and whether they shall be summoned from the same or other 
 panels of jurors, 27 from the body of the county 28 or from the 
 bystanders. 29 If the judge should give to the sheriff the names 
 
 24 Com. v. Parker, 2 Pick (Mass.) 550. 
 
 25 Rampey v. State, 83 Ala. 31 ; State v. Clough, 49 Me. 573. 
 
 26 Kilgore v. State, 74 Ala. i ; Levy v. Wilson, 69 Calif. 105. No pre- 
 cept need issue to summon talesmen as grand jurors: State v. Pierce, 8 
 Iowa 231. 
 
 27 State v. Gurlagh, 76 Iowa 141 ; State v. Silvers, 82 Iowa 714; State v. 
 Jacobs, 6 Tex. 99. 
 
 28 Keech v. State, 15 Fla. 591; Jenkins v. State, 35 Fla. 737; State v. 
 Garhart, 35 Iowa 315 ; Montgomery v. State, 3 Kan. 263 ; See Chartz v. 
 Territory, 32 Pac. 166. The court may order that the deficiency be filled 
 either from the list furnished by the county commissioners, by drawing 
 from the box or from the body of the county: Jones v. State, 18 Fla. 889; 
 Dukes v. State, 14 Fla. 499; Newton v. State, 21 Fla. 53. In Finley v. 
 State, 61 Ala. 201 ; Couch v. State, 63 Ala. 163 and Benson v. State, 68 
 Ala. 513, it was held that talesmen must be summoned from the qualified 
 citizens of the county and not from the by-standers. 
 
 29 State -v. Swim, 60 Ark. 587; Winter v. Muscogee Railroad Co., n 
 Ga. 438 ; Nealon v. People, 39 111. App. 481 ; Dorman v. State, 56 Ind. 454 ; 
 Dowling v. State, 5 Smedes & M. (Miss.) 664; Portis v. State, 23 Miss. 
 578 ; Yelm Jim v. Territory, i Wash. T. 63 ; Watt v. Territory, Id. 409.
 
 ORGANIZATION AND QUALIFICATIONS. 5! 
 
 of persons to be summoned as talesmen, while this is an irregu- 
 larity, it has been held not sufficient to invalidate an indictment 
 found by a grand jury so constituted * In the absence of a 
 statute regulating the summoning of talesmen it has been held 
 that a judge has no authority to issue a venire to supply nny 
 deficiency in the number of grand jurors, but that a tales 
 should issue and by-standers be brought in. 31 Substitutes can- 
 not be received for any part of the regular panel. 32 
 
 Before talesmen can lawfully be summoned, the panel must 
 be reduced below the number necessary to indict or form 
 a legal grand jury, 33 and this must be shown affirmatively by 
 the record which must also show that a formal order for sum- 
 moning talesmen was made by the court. If this be not affirm- 
 atively shown by the record, it is an irregularity which may be 
 taken advantage of by motion to quash. 34 A trial on the mer- 
 its of the issue will cure such irregularity. 
 
 A grand juror regularly drawn and summoned, but who 
 does not appear until after the grand jury has been organized, 
 sworn and charged, may in general be allowed to act with that 
 body after the oath has been administered to them. 35 This, 
 
 30 State v. Copp., 34 Kan. 522. And see State v. Keating, 85 Md. 188; 
 Runnels v. State, 28 Ark. 121. 
 
 31 State v. Symonds, 36 Me. 128. 
 
 32 Rawls v. State, 8 Smedes & M. (Miss.) 599. If a grand juror regu- 
 larly drawn is falsely personated by another person of the same surname, 
 who is sworn as a member of the grand jury in place of the other, this is 
 good ground for a plea in abatement : Nixon v. State, 68 Ala. 535. 
 
 33 Cross v. State, 63 Ala. 40; Berry v. State Id. 126; Blevins v. State, 68 
 Ala. 92; Boyd v. State, 98 Ala. 33; State v. Garhart, 35 Iowa 315; Jewell v. 
 Com., 22 Pa. 94; Harris v. State, 13 So. Rep. 15, and see Winter v. Mus- 
 cogee Railroad Co., n Ga. 438; Beasley v. People, 89 111. 571. Talesmen 
 may be added to the grand jury after it has been empanelled: State v. 
 Mooney, 10 Iowa 506. 
 
 34 Jewell v. Com. 22 Pa. 94. In State v. Miller, 53 Iowa 84, the court 
 made a verbal order and on appeal Judge Beck says: "The sheriff in this 
 case was orally directed to fill the panel. The order upon which this di-. 
 rection was based, we will presume was entered of record, for doubtless 
 the law so requires and the record before us does not show to the con- 
 trary." 
 
 35 State v. Fowler, 52 Iowa 103; In re Wadlin, n Mass. 142; Findley v. 
 People, i Manning (Mich.) 234. In State v. Froiseth, 16 Minn. 313, where a
 
 52 THE GRAND JURY. 
 
 however, is within the discretion of the court, and the court 
 may refuse to allow him to be sworn if there are sufficient 
 jurors without him. 36 
 
 At common law if the array was quashed, or all of the grand 
 jurors challenged or absent, a tales could not issue, and it was 
 necessary that a new venire should be awarded. 37 But under 
 statutes enacted in the various states, talesmen may be sum- 
 moned when all of the grand jurors are disqualified. 38 If, for 
 any reason, a grand jury has not been drawn and summoned 
 as required by statute, in some States the judge has the statu- 
 tory power to enter an order directing the sheriff to summon a 
 panel of grand jurors, 39 and should there be no statute giving 
 such authority, there is an implied power in the court to direct 
 that this be done. 40 
 
 Should the order of the court direct that talesmen be selected 
 from an improper class of persons, it has been held that an in- 
 dictment found by a grand jury so constituted is invalid ; other- 
 wise where the order is regular and incompetent persons are se- 
 lected by the sheriff in executing the order. 41 
 
 The manner of selecting and procuring the attendance of 
 grand jurors in Pennsylvania is regulated by the Act of April 
 
 juror appeared after the grand jury had duly entered upon its duties, was 
 sworn but no charge delivered to him or again to the grand jury 
 as a whole, McMillan, J., concludes his opinion with this language: "But 
 it may not be improper to say, that in cases where a sufficient number of 
 grand jurors upon the regular panel appear and are sworn and charged, the 
 admission of others of the regular panel appearing afterwards, is a matter 
 addressed to the discretion of the court, and in such cases when they are 
 admitted, or where additional jurors are summoned after the organization 
 of the jury, to supply any deficiency which may occur, in view at least of 
 the oath prescribed, the charge should be repeated." 
 
 36 State v. Froiseth, 16 Minn. 313; Findley v. People, i Manning (Mich.) 
 234- 
 
 37 Bowling v. State, 5 Smedes & M. (Miss.) 664. 
 
 38 State v. Smith, 88 Iowa, 178. 
 
 39 State v. Brooks, 9 Ala. 9; Hester v. State, 103 Ala. 83; Newton v. 
 State, 21 Fla. 53. 
 
 40 Straughan v. State, 16 Ark. 37 ; Wilburn v. State, 21 Ark. 198. 
 
 41 Oliver v. State, 66 Ala. 8.
 
 ORGANIZATION AND QUALIFICATIONS. 53 
 
 loth, i867, 42 which provides for two jury commissioners who 
 are elected for three years and cannot succeed themselves, one 
 each being of the majority and minority parties. The jury 
 commissioners and a judge, or a majority of them, meet at the 
 county seat thirty days before the first term of the Court of 
 Common Pleas, and place in the proper jury wheels the num- 
 ber of names designated by the Common Pleas Court at the 
 preceding term. The wheels are then locked, sealed, with the 
 separate seals of the jury commissioners and the sheriff, 43 and 
 remain in the custody of the jury commissioners, while the 
 sheriff has possession of the keys to the wheels. 
 
 To procure the drawing of a panel of grand jurors, a writ of 
 venire facias is issued by the clerk of the Court of Quarter Ses- 
 sions or Oyer and Terminer, upon the precept of the court, 
 commanding the sheriff and jury commissioners to empanel, 
 and the sheriff to summon a grand jury. 44 The panel of grand 
 jurors is drawn from the wheel by at least one jury commis- 
 sioner and the sheriff, who, before selecting or drawing jur- 
 ors, take an oath that they will faithfully and impartially per- 
 form their duties. 45 
 
 After the names of the jurors are drawn from the wheel they 
 
 42 Pamph. Laws 62 ; Section 8 of this Act was held to be directory ; 
 Com. v. Zillafrow, 207 Pa. 274. 
 
 43 Com. v. Delamater, 2 Dist. Rep. (Pa.) 562. 
 
 44 If separate writs of venire issue from the Courts of Quarter Sessions 
 and Oyer and Terminer, the judges shall order the sheriff to return one 
 and the same panel to both writs. Act April 14, 1834, Sec. no, P. L. 360. 
 
 45. Act April 14, 1834, Sec. 87, P. L. 357 ; Act April 10, 1867, P. L. 62. 
 In Philadelphia, the proceedings for drawing and summoning grand jurors 
 are regulated by the Acts of March 31, 1843, P. L. 123; April 20, 1858. 
 P. L. 354; April 13, 1859, P. L. 595; and March 13, 1867, P. L, 420. Tha 
 persons eligible for jury duty are returned by the assessors in each ward. 
 The Supreme Court Justices (when sitting in Philadelphia) and Judges of 
 the Common Pleas Courts with the sheriff, constitute a board to superin- 
 tend the selection and drawing of jurors. Any two of the judges and the 
 sheriff form a quorum. Before December 10, in each year, the board se- 
 lects sufficient jurors to serve on grand and petit juries for the ensuing 
 year, the names, etc., of those selected being written on slips of paper and 
 placed in the wheel, which is then locked and kept by the sheriff in his ex- 
 clusive custody. A list of the names placed in the wheel are certified to 
 each court by the members of the board then present, where it is filed. At
 
 54 THE GRAND JURY. 
 
 are to be inserted in the venire and such persons are then sum- 
 moned to appear by the sheriff or his deputies. If a grand 
 juror receives notice and attends the court, it has been held to 
 be of no consequence how he was summoned. His attendance 
 in obedience to the command of the writ cures any defect in 
 the manner of summoning. 46 The sheriff makes his return to 
 the venire, showing the persons summoned as grand jurors, but 
 it has been held that it is not necessary for the sheriff and jury 
 commissioners to make an affidavit to their return that the 
 jurors were drawn and returned according to law. 47 
 
 The grand jury may be summoned to meet prior to the hold- 
 ing of the regular terms of court if the judges of such court 
 deem it expedient, and may be detained for an additional week 
 if the business of the court, in the opinion of the judges, re- 
 quires it. 48 
 
 Where the panel by reason of the failure of grand jurors to 
 appear, or through challenges or other cause, is reduced below 
 the number necessary to indict, a tales de circumstantibus may 
 issue. 49 The number of talesmen who may be summoned by 
 this writ, has not been defined by law, but as the full grand jury 
 consists of twenty-three, it would seem that talesmen might 
 lawfully be summoned until the grand jury contained its full 
 number. 50 In Commonwealth v. Morton, 51 the panel was re- 
 duced to eleven jurors, and on a tales being issued, two tales- 
 men were brought in, were sworn and acted with the grand 
 
 least three weeks before the beginning of each term the board draws from 
 the wheel sufficient names to constitute the panels of grand and petit jurors 
 for the several courts, and a list of the names, etc., of such jurors is certified 
 to the respective courts and to the sheriff. 
 
 46 Com. v. Salter, 2 Pears. (Pa.) 461; Sylvester v. State, 72 Ala. 201; 
 Hughes v. State, 54 Ind. 95. 
 
 47 Com. v. Salter, 2 Pears, (Pa.) 461. 
 
 48 Penna. Act March 18, 1875, Sec. i, P. L. 28; Com. v. Smith, 4 Pa. 
 Sup. Ct. Rep. i. See State v. Davis, 126 N. C. 1007; State v. Battle, 126 
 N. C. 1036. 
 
 49 Penna. Act March 31, 1860, Sec. 41, P. L. 439; Com. v. Morton, 34 L. 
 I. (Pa.) 438. 
 
 50 Post 56. And see note 57. 
 
 51 34 L. I. (Pa.) 438.
 
 ORGANIZATION AND QUALIFICATIONS. 55 
 
 jury in the finding of indictments. This proceeding was sus- 
 tained by Judge Allison. 
 
 In the Federal courts, the selection and drawing of grand 
 jurors is regulated by the Act of June 30, i879, 62 which pro- 
 vides that grand jurors shall be drawn from a box containing 
 at the time of each drawing, the names of not less than three 
 hundred persons, the names having been placed in the box by 
 the clerk of the court and a commissioner, appointed by the 
 judge of such court, and being a citizen of good standing, re- 
 siding in the district and a well known member of the political 
 party opposing that of which the clerk is a member. The clerk 
 and the commissioner shall each place one name in the box 
 alternately until the necessary number of names has been 
 placed therein. 63 The right is reserved to the court to order 
 the grand jurors to be drawn from the wheels used by the State 
 authorities in drawing jurors to serve in the highest court of 
 the state. 54 
 
 When the grand jurors have been drawn, a venire issues 
 from the clerk's office to the marshal, directing him to sum- 
 mon twenty-four persons to serve as grand jurors. The names 
 of the persons thus drawn from the box are inserted in the 
 venire and are thereupon summoned by the marshal. If it hap- 
 pens that less than sixteen appear, or having appeared the num- 
 ber is depleted by challenge or other cause to less than the 
 legal requirement, in such case the court orders the marshal to 
 summon, either immediately or for a day fixed, a sufficient 
 number of persons to complete the grand jury, and these per- 
 sons are taken from the body of the district and not from the 
 by-standers. 66 
 
 52 This act is mandatory, but an intention to carry out its provisions in 
 good faith is all that is required : U. S. v. Ambrose, 3 Fed. Rep. 283. See 
 U. S. v. Greene, 113 Fed. Rep. 683, where many points arising under this 
 act were decided. 
 
 53 U. S. v. Rondeau, 16 Fed. Rep. 109. 
 
 54 Act June 30, 1879, 21 Stat. L. 43; R. S. U. S. Sec. 800-801; U S. v. 
 Reed, 27 Fed. Cas. 727; U. S. v. Richardson, 28 Fed. Rep. 61. The clause 
 of Sec. 801, R. S. U. S., relating to Pennsylvania was repealed by Act June 
 30, 1879. 
 
 55 R. S. U. S. Sec. 808.
 
 56 THE GRAND JURY. 
 
 This statute, like the Pennsylvania statute, 66 does not de- 
 fine whether the number to be summoned shall make the panel 
 sixteen or twenty-three. This, however, would seem to be 
 largely within the discretion of the court, 57 for there being no 
 limitation of the number to be summoned, no objection can 
 well be made where the additional jurors do not increase the 
 panel beyond the legal number. While it is thus necessary 
 that sixteen should be present to constitute a legal grand jury, 
 it is only necessary that twelve should concur in order to find 
 a true bill or make a valid presentment. 58 
 
 Where less than seventeen and more than twelve were present 
 and a true bill was found, the defendant tried on the merits, 
 convicted and sentenced, it was held by the United States Su- 
 preme Court upon habeas corpus proceeedings based upon an 
 alleged illegal detention that this was not such a defect as 
 would vitiate the entire proceeding, even although the defend- 
 ant had no knowledge of it until after sentence had been im- 
 posed upon him. 59 If, however, exception should be taken to 
 an indictment found by a grand jury so constituted, either by 
 plea in abatement or motion to quash, the objection should be 
 sustained, for the indictment thus found is the finding of a 
 grand jury not constituted in the manner provided by law. 60 
 This defect will be cured, however, by the plea of the general 
 issue. 
 
 Where in the venire for a panel of grand jurors the court 
 directed that they should be summoned from a certain part of 
 the district, 61 as may be done under authority of the Revised 
 
 56 Act March 31, 1860, Sec. 41, P. L. 439. 
 
 57 In U. S. v. Eagan, 30 Fed. Rep. 608, Judge Thayer says, "Undoubt- 
 edly the court may determine of how many persons up to twenty-three the 
 grand jury shall consist." 
 
 58 i Whart. Cr. Law, Sec. 4633, (7th ed.). 
 
 59 In re Wilson, 140 U. S. 575, and see State v. Swift, 14 La. Ann. 827 ; 
 CONTRA Doyl v. State, 17 Ohio 222. 
 
 60 State v. Hawkins, 10 Ark. 71 ; Doyle v. State, 17 Ohio 222 ; Barron z/, 
 People, 73 111. 256; Norris House v. State, 3 G. Greene (Iowa) 513; State 
 v. Cooley, 75 N. W. 729, and see Brannigan v. People, 3 Utah 488. 
 
 61 U. S. v. Ayres, 46 Fed. Rep. 651 ; People v. Reigel, 78 N. W. 1017. 
 See Williams v. State, 61 Ala. 33. In Finley v. State, 61 Ala. 201, Ulmer v.
 
 ORGANIZATION AND QUALIFICATIONS. 57 
 
 Statutes of the United States, Section 802, it was held that this 
 was not in conflict with the Sixth Amendment to the Constitu- 
 tion of the United States which provides: "In all criminal 
 prosecutions, the accused shall enjoy the right to a speedy and 
 public trial, by an impartial jury of the state and district 
 wherein the crime shall have been committed. . 
 
 In England 62 grand jurors are selected and summoned in 
 accordance with the provisions of the statute 6, Geo. IV, c. 50 
 as amended. The clerk of the peace causes warrants, precepts 
 and returns to be printed in the form set out in the schedule 
 annexed to the statute. These precepts are then sent by the 
 clerk to the church wardens and overseers of every parish and 
 the overseers of every township, who are required to prepare 
 an alphabetical list of every man residing in their respective 
 parishes or townships who is qualified and liable for grand jury 
 service, with his place of abode, title, quality, calling or busi- 
 ness. A copy of such list when prepared is affixed to the prin- 
 cipal door of every church and chapel on the first three Sundays 
 of September. The justices of the peace then hold a special 
 session during the last seven days of September of each year, 
 when the lists are produced and names either added or stricken 
 from the list, but no name can either be added or removed un- 
 less the justice first gives notice to the party whose name it is 
 proposed to add or remove from the list. The lists are re- 
 turned to the quarter sessions and kept by the clerk of the 
 peace. The jurors are selected from this list by the sheriff, 
 who thereupon summons them to appear. 
 
 Where the provisions of the statute under which grand 
 jurors are selected and drawn are but directory, the court will 
 not quash an indictment upon the ground of irregularity in the 
 selection or drawing when it does not appear that such irregu- 
 larity will prejudice the defendant. 63 
 
 State, Id. 208, Couch v. State, 63 Ala. 163, and Benson v. State, 68 Ala. 
 513, will be found instances where the writ directed the sheriff to summon 
 a grand jury from only a portion of the persons from whom the statute 
 provided it should be drawn, and a grand jury thus constituted was held 
 not a legal grand jury. 
 
 62 Chitty's English Statutes, Vol 6, Tit. Juries. 
 
 63 Bales v. State, 63 Ala. 30; State v. Carney, 20 Iowa 82; Johnson r.
 
 58 THE GRAND JURY. 
 
 In the selection and drawing of grand jurors the absence of 
 any particular officer designated to participate in the proceed- 
 ings will not ordinarily invalidate the selection and drawing 
 thus made, a majority of those directed to perform such duty 
 being present and legally competent to act. 64 The duty thus 
 imposed upon any person by statute cannot be delegated by 
 him to another; 65 it is wholly personal and when disregarded 
 may be successfully relied upon by a defendant for setting 
 aside an indictment returned against him. 
 
 Where grand jurors have been selected by officers de facto, 
 it has been held that this cannot be availed of by a defendant 
 for the purpose of invalidating the indictment. The acts of 
 such officers as to third persons are as valid as the acts of offi- 
 cers de jure. 66 
 
 An indictment found by a de facto grand jury has been sus- 
 tained. 67 
 
 This doctrine was carried to the extreme limit in New York 
 in the case of People v. Petrea, 67 * where the act under which 
 the grand jurors were selected was unconstitutional, but the 
 
 State, 33 Miss. 363; State v. Hay wood, 73 N. C. 437; State v. Martin, 82 
 N. C. 672 ; Com. v. Zillaf row, 207 Pa. 274. 
 
 64 Stevenson v. State, 69 Ga. 68; Roby v. State, 74 Ga. 812; Smith v. 
 State, 90 Ga. 133. 
 
 65 Levy v. Wilson, 69 Calif. 105; State v. Conway, 35 La. Ann. 350; 
 State v. Taylor, 43 Id. 1131; Preuit v. People, 5 Neb. 377; Challenge to 
 grand jury, 3 N. J. Law Jour. 153; State v. McNamara, 3 Nev. 70. A 
 deputy clerk may perform the duty imposed upon the clerk of the Circuit 
 Court to draw from the box the names of the persons to serve as grand 
 jurors: Willingham v. State, 21 Fla. 761. But in Dutell v. State, 4 G. 
 Greene (Iowa) 125, it was held that a deputy sheriff could not legally 
 compare the list of grand jurors where that duty was by statute imposed 
 upon the sheriff: And see State v. Brandt, 41 Iowa 593. Where a new 
 constitution imposed upon a superior judge the duties performed by the 
 county judge, the superior judge succeeds to the duties of the county 
 judge in drawing jurors: People v. Gallagher, 55 Calif. 462. 
 
 66 Durrah v. State, 44 Miss. 789 ; Dolan v. People, 64 N. Y. 485 ; State v. 
 Krause, i Ohio, N. P. 91. 
 
 67 State v. Marsh, 13 Kan. 596; People v. Petrea, 92 N. Y. 128; People v. 
 Morgan, 95 N. W. 542. 
 
 67* 92 N. Y. 128.
 
 ORGANIZATION AND QUALIFICATIONS. 59 
 
 Court of Appeals held that the indictment had been found by 
 a de facto grand jury and was therefore valid. 
 
 In discussing the case Andrews, J. says : 
 
 "We are of opinion that no constitutional right of the de- 
 fendant was invaded by holding him to answer to the indict- 
 ment. The grand jury, although not selected in pursuance of 
 a valid law, were selected under color of law and semblance of 
 legal authority. The defendant, in fact, enjoyed all the pro- 
 tection which he would have had if the jurors had been selected 
 and drawn pursuant to the general statutes. Nothing could 
 well be more unsubstantial than the alleged right asserted by 
 the defendant under the circumstances of the case. He was en- 
 titled to have an indictment found by a grand jury before 
 being put upon his trial, an indictment was found by a body, 
 drawn, summoned and sworn as a grand jury before a compe- 
 tent court and composed of good and lawful men. This we 
 think fulfilled the constitutional guaranty. The jury which 
 found the indictment was a de facto jury selected and organ- 
 ized under the forms of law. The defect in its constitution, 
 owing to the invalidity of the law of 1881, affected no substan- 
 tial right of the defendant. We confine our decision upon this 
 point to the case presented by this record, and hold that an in- 
 dictment found by a jury of good and lawful men selected and 
 drawn as a gfrand jury under color of law, and recognized by 
 the court and sworn as a grand jury, is a good indictment by a 
 grand jury within the sense of the Constitution, although the 
 law under which the selection was made, is void." 
 
 After grand jurors have been drawn they must be sum- 
 moned to attend at court. This duty, unless other persons be 
 designated by statute, devolves upon the sheriff and his depu- 
 ties, and should they for any reason be disqualified, then upon 
 the coroner. 68 
 
 In the conduct of legal proceedings the presumption is that 
 official acts have been performed in the manner prescribed by 
 law. When the sheriff selects and summons grand jurors, he 
 
 68 State v. Williams, 5 Port. (Ala.) 130; Bruner v. Superior Court, 92 
 Calif. 239; Conner v. State, 25 Ga. 515; Com. v. Graddy, 4 Metcalf (Ky.) 
 223.
 
 6O THE GRAND JURY. 
 
 will be presumed to have complied with every requirement of 
 the law in the selection, summoning and return of a panel of 
 legal jurors 69 in the absence of evidence to the contrary. In 
 the case of Wilson v. People, 70 Chief Justice Thacher said: 
 "We are not permitted to presume in the silence of the record, 
 that the court adopted an illegal method in convening the 
 grand jury." The burden of proof rests upon anyone who 
 alleges irregularity in the drawing or return of the panel or 
 who alleges that a grand juror is personally disqualified from 
 serving. 71 
 
 The qualifications of grand jurors are in general the same 
 as at the common law. In Bracton's time no persons could 
 be grand jurors unless they were "free and loyal men who 
 have no suit against anyone, and are not sued themselves, nor 
 have evil fame for breaking the peace or for the death of a 
 man or other misdeed," and be of the hundred in which they 
 were chosen. 72 In the Sixteenth Century a grand juror must 
 be a "freeman, and a lawful liege subject, and, consequently 
 neither under an attainder of any treason or felony, nor a vil- 
 lain, nor alien, nor outlawed, whether for a criminal matter, 
 or as some say, in a personal action," all of whom were to 
 be of the same county, 73 and they need not be freeholders. 74 
 A similar view is expressed by Mr. Chitty, 75 who adds, "this 
 necessity for the grand inquest to consist of men free from 
 all objections existed at common law," 76 and Lord Coke 
 says, 77 "if the indictment be found by any persons that are out- 
 
 69 Bowling v. State, 5 Smedes & M. (Miss.) 664. The list of grand 
 jurors returned by the sheriff is not evidence that such jurors are returned 
 and qualified according to law: State v. Ligon, 7 Port (Ala.) 167. And 
 see State v. Congdon, 14 R. I. 267. 
 
 70 3 Colo. 325. 
 
 71 State v. Haynes, 54 Iowa 109; State v. McNeill, 93 N. C. 552 
 CONTRA Beason v. State, 34 Miss. 602. 
 
 72 Bracton-de legibus (Sir Travers Twiss-ed.) Vol. II, p. 235. 
 
 73 2 Hawk. PI. C. Ch. 25, Sec. 16. 
 
 74 Id. Ch. 25, Sec. 19. 
 
 75 i Chitty Cr. Law, 307. 
 
 76 Id. 309. 
 
 77 3 Inst. 33.
 
 ORGANIZATION AND QUALIFICATIONS. 6l 
 
 lawecl, or not the king's lawful liege people, or not lawfully 
 returned, or denominated by any, viz. : by all or any of these, 
 that then the indictment is void." Perhaps the earliest statute 
 relating to the qualifications of grand jurors was 1 1 Hen. IV. 
 C. 9, which, after setting forth the classes of persons who were 
 disqualified from acting as grand jurors, provided that if an 
 indictment should be presented by a grand jury containing a 
 single disqualified person, it was wholly void. 78 
 
 Blackstone omits all reference to the qualifications of grand 
 jurors except to say, "they are usually gentlemen of the best 
 figure in the county," and considers they should be freehold- 
 ers. 79 
 
 In England 79 * at the present day the qualifications of grand 
 jurors are defined with great minuteness. The statute 6, Geo. 
 IV. c. 50, provides that a grand juror shall be between twenty- 
 one and sixty years of age, having in his own name or in 
 trust for him in the same county "ten pounds by the year above 
 reprizes, in lands or tenements, whether of freehold, copyhold, 
 or customary tenure, or of ancient demesne, or in rents issuing 
 out of any such lands or tenements, or in such lands, tenements, 
 and rents taken together, in fee simple, fee tail, or for the life 
 of himself or some other person, or who shall have within the 
 same county twenty pounds by the year above reprizes, in lands 
 or tenements, held by lease or leases for the absolute term of 
 twenty-one years, or some longer term, or for any term of 
 years determinable on any life or lives, or who being a house- 
 holder shall be rated or assessed to the poor rate, or to the in- 
 habited house duty in the county of Middlesex, on a value of 
 not less than thirty pounds, or in any other county on a value 
 of not less than twenty pounds, or who shall occupy a house 
 containing not less than fifteen windows." 
 
 In Pennsylvania there are no statutes defining the qualifica- 
 
 78 2 Hawk. PI. C. Ch. 25, Sec. 28 ; i Chitty Cr. Law, 309 ; and sec U. S. 
 v. Hammond, 26 Fed. Cas. 99; Com. v. Smith, 10 Bush (73 Ky.) 476; State 
 v. Jones, 8 Rob. (La.) 616; State v. Parks, 21 La. Ann. 251 ; State v. Row- 
 land, 36 La. Ann. 193; Barney v. State, 12 Smedes & M. (Miss.) 68; State 
 v. Duncan, 7 Yerg. (Tenn.) 271. 
 
 79 4 Bl. Com. 302. 
 
 79* Chilly's English Statutes, Vol 6, Tit. Juries.
 
 62 THE GRAND JURY. 
 
 - * 
 
 tions of grand jurors, beyond the provision that only sober, 
 intelligent and judicious persons shall be chosen, 80 and, as the 
 common law is a part of the law of the state, their compe- 
 tency would be determined in accordance therewith, but they 
 are not required to be freeholders. It would also seem that 
 a grand juror, like a petit juror, must stand indifferent be- 
 tween the commonwealth and the accused. 81 
 
 In many states, a grand juror is required to be a free- 
 holder ; 82 in others a freeholder or householder. 83 In Tennes- 
 see 84 he need not have a freehold in the county in which he is 
 summoned, while in West Virginia, 85 although a grand juror 
 is required to be a freeholder, the court has refused to quash an 
 indictment upon the ground that a member of the grand jury 
 rinding the indictment did not possess this qualification. 
 
 In Arkansas, 88 and South Carolina, 87 it has been held that 
 grand jurors are not required to be freeholders. 
 
 In North Carolina the rule which prevailed in Bracton's 
 time that a grand juror must have no suit against any man 
 nor himself be sued seems to be in force. Thus it has been 
 held there was no error in quashing an indictment on the 
 ground that one of the grand jurors was, at the time it was 
 found, a party to an action pending in the same county, 88 and 
 it is not necessary to show that such juror participated in the 
 
 80 Act April 10, 1867, P. L. 62. The Act of April 20, 1858, Sec. 2, P. L. 
 354, which applies only to Philadelphia, provides that the grand jurors 
 shall be "sober, healthy and discreet citizens." 
 
 81 Com. v. Clark, 2 Browne (Pa.) 325; Rolland v. Com., 82 Pa. 306; 
 Com. v. Cosier, 8 Luz. Leg. Reg. (Pa.) 97. 
 
 82 Fowler v. State, 100 Ala. 96; State v. Herndon, 5 Blackf. (Ind.) 75; 
 Wills v. State, 69 Ind. 286 ; State v. Rockafellow, 6 N. J. Law 332 ; State v. 
 Motley, 7 Rich. Law (S. C.) 327; Moore v. Com. 9 Leigh. (Va.) 639; 
 Com. v. Cunningham, 6 Gratt. (Va.) 695. 
 
 83 State v. Brown, 10 Ark. 78; State v. Brooks, 9 Ala. 9; Barney v. 
 State, 12 Smedes & M. (Miss.) 68; Jackson v. State, n Tex. 261; Stanley 
 v. State, 1 6 Tex. 557. 
 
 84 State v. Bryant, 10 Yerg. 527. 
 
 85 State v. Henderson, 29 W. Va. 147. 
 
 86 Palmore v. State, 29 Ark. 248. 
 
 87 State v. Williams, 35 S. C. 344. 
 
 88 State v. Liles, 77 N. C. 496; State v. Smith, 80 Id. 410. But see 
 State v. Edens, 85 Id. 522.
 
 ORGANIZATION AND QUALIFICATIONS. 63 
 
 deliberations and finding of the grand jury. 88 In Louisiana 
 a grand juror who is charged with any crime or offence can- 
 not legally serve. 90 
 
 In some states a grand juror must be a qualified voter, 
 either for candidates for office, to impose a tax, or regulate 
 the expenditure of money in a town. 91 
 
 Where a statute provided that jurors should be selected only 
 from the persons who had paid their taxes for the preceding 
 year, an indictment found by a grand jury containing three 
 persons who had not paid such taxes was quashed. 92 
 
 In the State of Washington, although it is provided by 
 statute that women shall be qualified electors, they are not 
 competent to serve as grand jurors under a statute providing 
 that grand jurors shall be drawn from the qualified electors. 93 
 
 In the Federal courts the qualifications of grand jurors, ex- 
 cept where otherwise provided by the Revised Statutes, are de- 
 termined according to the law of the state in which such court 
 is located. 94 Congress, however, has provided that no person 
 shall be summoned as a grand juror in a court of the United 
 States more than once in two years, 05 nor shall any person be 
 a grand juror who has been engaged in rebellion against the 
 United States. 90 
 
 The common law provided that no alien should be a grand 
 
 89 State v. Smith, 80 N. C. 410. 
 
 90 State v. Thibodeaux, 48 La. Ann. 600. 
 
 91 Adams v. State, 28 Fla. 511; State v. Davis, 12 R. I. 492; State v. 
 Congdon, 14 R. I. 267. 
 
 92 State v. Durham Fertilizer Co., in N. C. 658. But see Cubine v. 
 State, 73 S. W. 396. 
 
 93 Harland v. Territory, 13 Pac. 453; Rumsey v. Territory, 21 Pac. 152. 
 
 94 R. S. U. S. Sec. 721. U. S. v. Chine, 62 Fed. Rep. 798. 
 
 95 R. S. U. S. Sec. 812; U. S. v. Reeves, 27 Fed. Cas. 750. But this can 
 only be taken advantage of by challenge to the jurors before indictment 
 found. It cannot be raised by motion to quash or plea in abatement. 
 
 96 R. S. U. S. Sec. 820. This provision was repealed by the Act of 
 Congress, June 30, 1879, 21 Stat. L. 43, but the revision committee appar- 
 ently by mistake included this provision in the Revised Statutes as Sec, 
 820, and it was re-enacted by Congress. U. S. t 1 . Gale, 109 U. S. 65 ; U. S. 
 v. Hammond, 26 Fed. Cas. 99.
 
 64 THE GRAND JURY. 
 
 juror, 97 and, consequently, an alien accused of an offence has 
 no right to demand that he be indicted by a grand jury de 
 medietate linguae?* although he may demand that a jury de 
 medietate be summoned for his trial." 
 
 Where a person is accused of an offence, he has a right to 
 take advantage of every irregularity in the proceedings on the 
 part of the officers appointed to administer the law, of their 
 personal disqualifications, and of the personal disqualifications 
 of the grand jurors, providing he does so at the proper time. 
 There are three separate stages at which a defendant may ob- 
 ject to the manner in which the grand jury has been constituted 
 and the members constituting it. 
 
 1. Before the grand jurors are sworn. 100 
 
 2. After they have been sworn, but before the defendant is 
 indicted. 101 
 
 97 And see Reich v. State, 53 Ga. 73; State v. Haynes, 54 Iowa, 109; 
 State v. Guillory, 44 La. Ann. 317; Territory v. Harding, 6 Mont. 323; 
 Territory v. Clayton, 8 Id. i ; Com. v . Cherry, 2 Va. Cas. 20. In State v. 
 Cole, 17 Wis. 674, the juror was a qualified elector of Wisconsin, but was 
 not a citizen of the United States. 
 
 98 2 Hawk. PI. C. Ch. 43, Sec. 36 ; 2 Hale, P. C. 271 ; i Chitty Cr. Law 
 309; Bac. Abr. Juries E. 8; Trials per Pais (Giles Duncombe) Vol. I, p. 
 246; i Whart. Cr. Law, Sec. 473, (7th ed.). 
 
 99 4 Bl. Com. 352 ; Res. v. Mesca, i Dall. 73 ; Roberts Digest of British 
 Statutes, 346. The Act of April 14, 1834, Sec. 149, P. L. 366, provides 
 that no jury de medietate shall be allowed in Pennsylvania. In the District 
 of Columbia a foreigner is not entitled to be tried by a jury de medietate; 
 U. S. v. McMahon, 26 Fed. Cas. 1131. 
 
 100 If the objection is not raised before the grand jurors are sworn, it 
 cannot thereafter be availed of on a motion to set aside the indictment : 
 Moses v. State, 58 Ala. 117; State v. Ingalls, 17 Iowa 8; State v. Pierce, 90 
 Id. 506; State v. Gibbs, 39 Id. 318; Bellair v. State, 6 Blackf. (Ind.) 104; 
 State v. Hensley, 7 Blackf. (Ind.) 324; State v. Welch, 33 Mo. 33; State v. 
 Rickey, 10 N. J. Law 83 ; Lienberger v. State, 21 S. W. 603 ; State v. Ames, 
 96 N. W. 330. See People v. Borgstrom, 178 N. Y. 254. Under Code 
 Sec. 2375 of Miss., objections to the qualifications of grand jurors must bt 
 made before they are empaneled ; they cannot be made afterward. The Texas 
 code of Cr. Proc. 1895, Sec. 397, contains the same provision : Barber v. 
 State, 46 S. W. 233 ; Carter v. State, 46 Id. 236. And see as to Mississippi 
 Head v. State, 44 Miss. 731 ; Dixon v. State, 20 So. 839, 
 
 101 See generally cases in Note 148, page 73.
 
 ORGANIZATION AND QUALIFICATIONS. 65 
 
 3. After the defendant has been indicted. 102 
 
 Where the right of challenge exists it has been held that a 
 refusal by the court to allow a prisoner, criminally charged, to 
 challenge the grand jury, renders the jury incompetent to sit 
 in his case, and the indictment worthless and insufficient, 103 
 but there is no duty imposed upon the court having jurisdic- 
 tion of the cause to notify the defendant of this right. 104 
 
 When it is proposed to make objection to the grand jurors 
 before they have been sworn, the objection may be either to the 
 array 105 or to the personal qualifications of any juror. 108 
 
 102 In Alabama by Code Sec. 4445, it is provided that no objection shall 
 be made to any indictment on a ground going to the formation of the 
 grand jury except that the jurors were not drawn in the presence of the 
 proper officers. See Boulo v. State, 51 Ala. 18; Weston v. State, 63 Id. 155 ; 
 Phillips v. State, 68 Id. 469; Billingslea v. State, Id. 486; Murphy v. State, 
 86 Ala. 45. In Linehan v. State, 21 So. 497, it was held that this provision 
 was not repealed by the Act of February 28, 1887, regulating the drawing 
 and formation of grand juries. And see Compton v. State, 23 So. 750; 
 Stoneking v. State, 24 So. 47. The Act of February 21, 1887, was repealed 
 by the Act of March 2, 1901 : Edson v. State, 32 So. 308. 
 
 103 People v. Romero, 18 Calif. 89; State v. Osborne, 61 Iowa 330; State 
 v. Warner, 165 Mo. 399; People v. Wintermute, 46 N. W. 694. 
 
 104 People v. Borgstrom, 178 N. Y. 254. In People v. Romero, 18 Calif. 
 89, Judge Baldwin said in his opinion reversing the judgment of the court 
 below : "If the prisoner were refused the privilege of challenging the grand 
 jury in and by the Court of Sessions, the indictment is insufficient and 
 worthless ; it is not, in other words, a legal indictment, because not found 
 by a body competent to act on the case ; but to have this effect, the prisoner 
 must have applied for leave or requested permission to appear and chal- 
 lenge the jury. It was not the duty of the Court of Sessions to bring him 
 into court for the purpose of exercising this privilege. It is the prisoner's 
 business to know when the court meets, and if he desires to challenge the 
 jury, to apply, if in custody, to the court, to be brought into court for that 
 purpose; and if he fails to do this, he waives his privilege of excepting to 
 the panel or any member." 
 
 105 U. S. v. Gale, 109 U. S. 65 ; Gibbs r. State, 45 N. J. Law 379 ; Terri- 
 tory v. Young, 2 N. Mex. 93; Huling v State, 17 Ohio St. 583; Reed v. 
 State, i Tex. App. i ; Green v. State, Id. 82; Van Hook v. State, 12 Tex. 
 252; State v. White, 17 Tex. 242; Cook v. Territory, 4 Pac. 887; Stanley 
 r. U. S. 33 Pac. 1025. In some States it is now provided by statute that 
 no challenge to the panel shall be allowed: State v. Davis, 41 Iowa 311; 
 Carpenter v. People, 64 N. Y. 483; People v. Borgstrom, 178 N. Y. 254; 
 State v. Fitzhugh, 2 Ore. 227. And see People v. Reigel, 78 N. W. 1017. 
 
 106 Rolland v. Com., 82 Pa. 306; Delaware River Road, 5 Dist. Rep. 
 
 5
 
 66 THE GRAND JURY. 
 
 The challenge to the array may be made for irregularity in 
 making the original selection; 107 keeping the jury wheels in 
 an improper place or in the custody of an improper person, or 
 in failing to lock and seal the wheels in the manner provided 
 by statute; 108 irregularity in the venire, in drawing and sum- 
 moning the grand jurors, 109 in the list 110 or in the return. 111 
 The array will be quashed if it appear that the persons 
 charged with making the selection of grand jurors failed to 
 take the oath which it was prescribed by statute should be taken 
 before any selection was made. 112 It has also been held a good 
 cause for challenge to the array as being in violation of the 
 rights guaranteed by the Fourteenth Amendment to the Con- 
 stitution of the United States, where the officers, whose duty it 
 was to select and summon the grand jurors, excluded from the 
 
 (Pa.) 694; In re Bridge in Nescopeck, 3 Luz. Leg. Reg. (Pa.) 196; State 
 v. Herndon, 5 Blackf. (Ind.) 75. 
 
 107 Wells v. State, 94 Ala. i ; State v. Howard, 10 Iowa 101 ; Clare v. 
 State, 30 Md. 163; Avirett v. State, 76 Md. 510; Green v. State, i Tex. 
 App. 82. See also cases in note 108. CONTRA People v. Jewett, 3 Wend. 
 (N. Y.) 314, where it appeared the jurors selected were in every respect 
 qualified. And see People v. Petrea, 92 N. Y. 128. 
 
 108 Brown v. Com., 73 Pa. 321 ; Id. 76 Pa. 319 ; Holland v . Com., 82 Pa. 
 306; Ins. Co. v. Adams, no Pa. 553; Klemmer v. R. R. Co., 163 Pa. 521; 
 Com. v. Delamater, 2 Dist. Rep. (Pa.) 562. 
 
 109 U. S. v. Antz,i6 Fed. Rep. 119; Com. v. Salter, 2 Pears. (Pa.) 461 ; U. 
 S. v. Reed, 27 Fed. Cas. 727 ; Freel v. State, 21 Ark. 212 ; Williams v. State 
 69 Ga. n ; Dixon v. State, 3 Iowa 416; State v. Howard, 10 Id. 101 ; State 
 v. Beckey, 79 Id. 368; State v. Texada, 19 La. Ann. 436; State v. Under- 
 wood, 28 N. C. 96; State v. Duncan, Id. 98; State v. Hart, 15 Tex. App. 
 202; Whitehead v. Com., 19 Gratt. (Va.) 640; State v. Cameron, 2 Chand. 
 (Wis.) 172. CONTRA People v. Fitzpatrick, 30 Hun. (N. Y.) 493; People v. 
 Hooghkerk, 96 N. Y. 149. 
 
 no Edmonds v. State, 34 Ark. 720. 
 
 in Com. v. Chauncey, 2 Ashm. (Pa.) 101. 
 
 112 State v. Bradley, 32 La. Ann. 402; Campbell v. Com., 84 Pa. 187; 
 Kendall v. Com., 19 S. W. 173. And see State v. Flint, 52 La. Ann. 62. 
 An indictment will not be quashed nor will judgment be arrested in a 
 capital case upon the ground that although the jury commissioners had 
 taken the oath of office prescribed by the Constitution before entering upon 
 their duties, it had not been filed in the prothonotary's office as provided 
 by the Constitution : Com. v. Valsalka, 181 Pa. 17.
 
 ORGANIZATION AND QUALIFICATIONS. 67 
 
 panel, members of the negro race. 113 That negroes were denied 
 the right to vote, although qualified electors, will not be 
 ground for quashing an indictment where the statute provided 
 that grand jurors should be selected from the qualified electors 
 and the persons prevented from voting were lawfully registered 
 as qualified electors in the registration book from which the se- 
 lection of grand jurors was made. 114 A white man, however, 
 has no right to complain where negroes are excluded by statute 
 from the grand jury, since the Fourteenth Amendment to the 
 Constitution of the United States has given him no rights 
 which he did not possess before its adoption. 115 
 
 While advantage may be taken of any defects or irregulari- 
 ties in the foregoing instances, the court will not quash the 
 array because the sheriff was not present during the entire 
 time in which the selection of jurors was being made; that 
 the selection was spread over a period of several weeks; that 
 the duty of writing the names was done by a clerk in their 
 presence and by their order; because of mere carelessness in 
 keeping the names before being placed in the wheel, or in the 
 keeping of the wheel after being properly locked and sealed. 1 ie 
 And it has also been held that the array will not be quashed 
 where the defendant alleges a failure to comply with the pro- 
 visions of a statute in the drawing and selection of grand jurors 
 but neither alleges nor proves that fraud, corruption or par- 
 tiality was shown. 117 
 
 The court will not quash an indictment upon the ground 
 that the jury commissioners broke open the jury box (the key 
 being lost) and drew the grand jury therefrom; 118 because 
 names drawn were laid aside in the erroneous belief that such 
 
 113 Neal v. Delaware, 103 U. S. 370; Carter v. Texas, 177 U. S. 442; 
 Whitney v. State, 59 S. W. 895 ; Rogers v. Alabama, 192 U. S. 226. 
 
 114 Dixon v. State, 20 So. 839. 
 
 115 Com. v. Wright, 79 Ky. 22. 
 
 116 Com. v. Lippard, 6 S. & R. 395. And see Com. v. Valsalka, 181 Pa. 
 17; U. S. v. Greene, 113 Fed Rep. 683. 
 
 117 Ex Parte McCoy, 64 Ala. 201 ; State v. Champeau, 52 Vt 313. And 
 see State v. Skinner, 34 Kan. 256; State v. Donaldson, 43 Kan. 431. 
 
 118. Long v. State, 103 Ala. 55.
 
 6S THE GRAND JURY. 
 
 persons had removed from the county j 1 19 that the record does 
 not show the taking of the oath by the sheriff and his deputies 
 before summoning the jurors; 120 that the grand jurors were 
 not drawn or summoned at the time prescribed by statute, the 
 provisions of the statute being for the convenience of the 
 jurors and not for the benefit of the defendant; 121 or that the 
 grand jurors were selected from the registries of voters in- 
 stead of the poll books, the two lists being identical as to 
 names. 122 
 
 The challenge to the panel of grand jurors is made by a mo- 
 tion to quash the array, which motion can only be made where 
 the objection is to irregularity in selecting and empaneling the 
 grand jury based upon some one or more of the grounds here- 
 tofore named, and does not extend to the competency of the 
 individual juror. 123 A challenge to the array must be sup- 
 ported by an affidavit setting forth the facts upon which the 
 challenge is based 124 and be substantiated by evidence. 126 
 
 The motion may be made at any time before the defendant 
 pleads to the indictment, 126 although a contrary view was taken 
 
 119 State v. Wilcox, 104 N. C. 847. 
 
 120 State v. Clifton, 73 Mo. 430. 
 
 121 Johnson v. State, 33 Miss. 363 ; State v. Mellor, 13 R. I. 666. 
 
 122 Downs v. State, 78 Md. 128. 
 
 123 People -v. Southwell, 46 Calif. 141 ; People v. Goldenson, 76 Id. 328 ; 
 U. S. v . Blodgett, 35 Ga. 336 ; Dixon v. State, 3 Iowa 416 ; Barney v. State, 
 12 Smedes & M. (Miss.) 68; Chase v. State, 46 Id. 683; People v. Jewett, 
 3 Wend. (N. Y.) 314; Ruling v. State, 17 Ohio St. 583; State v. Jacobs, 
 6 Tex. 99; Van Hook v. State, 12 Id. 252; State v. White, 17 Tex. 242; 
 Reed v. State, i Tex. App. i ; Green v. State, Id. 82; Smith v. State, Id. 133 ; 
 Cook v. Territory, 4 Pac. 887. 
 
 124 McClary v. State, 75 Ind. 260. 
 
 125 State v. Gillick, 10 Iowa 98; Hart v. State, 15 Tex. App. 202. 
 
 126 i Whart. Cr. Law 468; Carter v. Texas, 177 U. S. 442; Wilson v. 
 People, 3 Colo, 325 ; Miller v. State, 69 Ind. 284 ; Pointer v. State, 89 Ind. 
 255 ; State v. Belvel, 89 Iowa 405 ; State v. Kouhns, 103 Id. 720 ; State v. 
 Herndon, 5 Blackf. (Ind.) 75; State v. Texada, 19 La. Ann. 436; State v. 
 Hoffpauer, 21 Id. 609; State v. Watson, 31 Id. 379; State v. Thomas, 19 
 Minn. 484 ; Clare v. State, 30 Md. 163 ; State v. Welch, 33 Mo. 33 ; People v. 
 Robinson, 2 Parker Cr. Rep. (N. Y.) 235; State v Sears, 61 N. C. 146; 
 Com. v. Freeman, 166 Pa. 332 ; Com. v. Shew, 8 Pa. Dist. Rep. 484 ; State v. 
 Jeffcoat, 26 S. C. 114; Thomason v. State, 2 Tex. App. 550. Under Texas
 
 
 ORGANIZATION AND QUALIFICATIONS. <X) 
 
 in United States v. Butler, 127 where it was held that a chal- 
 lenge to the array of the grand jury cannot be made after it is 
 organized and enters upon its duties, but this ruling has been 
 somewhat modified. 128 In the Federal courts the law now is, 
 that if the defendant was arrested and held in bail, or in any 
 other manner had knowledge that proceedings would be insti- 
 tuted against him before the session of the grand jury at which 
 he was indicted, then he must move to quash the array and 
 make his challenge to the polls before the grand jury is sworn ; 
 but if he was indicted without knowledge that the grand jury 
 either was or intended taking any action against him, then he 
 might, before pleading to the indictment, file a plea in abate- 
 ment, or move to quash the indictment for the same reasons 
 as would have supported a motion to quash the array or chal- 
 lenges to the polls for statutory or common law disqualifica- 
 tions, 129 but not for favor. The courts of some of the states 
 have adopted a similar rule. 130 
 
 Where a challenge is made to the array but the objection is 
 to only a portion of the grand jurors, it will be overruled and 
 the defendant left to challenge the individual jurors for 
 cause. 181 
 
 Code, the proper time to object to the array is before the grand jurors 
 have been interrogated as to their qualifications : Reed v. State, I Tex. App. 
 I ; Grant v. State, 2 Id. 163. An objection to the manner of empaneling 
 cannot be made after indictment found : Carter v. State, 46 S. W. 236. 
 
 127 25 Fed. Cas. 213. And see People v. Moice, 15 Calif. 329; People v. 
 Arnold, Id. 476; State v. Howard, 10 Iowa 101. 
 
 128 U. S. v. Gale, 109 U. S. 65. 
 
 129 Carter v. Texas, 177 U. S. 442; Wolfson v. U. S., 101 Fed. Rep. 430; 
 U. S. v. Reeves, 27 Fed. Cas. 750; U. S. v. Jones, 31 Fed. Rep. 725; U. S. 
 v. Hammond, 26 Fed. Cas. 99; U. S. v. Blodgett, 30 Fed. Cas. 1157; Agnew 
 v. U. S., 165 U. S. 36 ; U. S. v. Palmer, 27 Fed. Cas. 410. 
 
 130 People v. Beatty, 14 Calif. 566 ; People v. Hidden, 32 Id. 445 ; People 
 r. Geiger, 49 Id. 643 ; Turner v. State, 78 Ga. 174 ; Mustek v. People, 40 111. 
 268; Mershon v. State, 51 Ind. 14; Dixon v. State, 3 Iowa 416; State r. 
 Hinkle, 6 Id. 380; State v. Ostrander, 18 Id. 435; State v. Reid, 20 Id. 413; 
 State v. Gibbs, 39 Id. 318; State v. Ruthven, 58 Id. 121 ; Logan v. State, 50 
 Miss. 269; Patrick v. State, 16 Neb. 330; Territory v. Gayton, 19 Pac. 293. 
 
 131 U. S. v. Richardson, 28 Fed. Rep. 61 ; U. S. v. Rondeau, 16 Fed. Rep. 
 109; People v. Simmons, 119 Calif, i; McElhanon v. People, 92 111. 369;
 
 7O THE GRAND JURY. 
 
 The right to determine the time and manner of making ob- 
 jections to the qualifications of grand jurors is vested in the 
 legislature, and while it has the power to enact laws desig- 
 nating the time and specifying how such objection shall be 
 made, it has no power to wholly take away the right of ob- 
 jecting. 132 
 
 It is necessary in order to make a challenge, either to the 
 array or to the polls of the grand jury, that the person pro- 
 posing to make the challenge shall show that he is under pros- 
 ecution. 133 . In Iowa 134 it was decided that the challenge could 
 not be made where a defendant was held to await the action 
 of a subsequent grand jury, and the grand jury then sitting, 
 of its own motion examined into the offence and returned an 
 indictment. At first sight this ruling would appear to deprive 
 the defendant of a substantial right, but a close inspection of 
 the decision shows that no allegation was made by defendant 
 that the grand jury which found the indictment was not a legal 
 body nor did the defendant allege the disqualification of any 
 member thereof. He was therefore indicted by a body unob- 
 jectionable in every respect which acted on its own motion 
 and not on the return of the magistrate. 
 
 The state's attorney cannot challenge the panel 135 although 
 he may challenge the individual jurors for favor or for 
 cause. 136 Where a challenge is made by the state, whether 
 
 State v. Furco, 51 La. Ann. 1082; Foust v. Com., 33 Pa. 338; Rolland v. 
 Com., 82 Pa. 306; Bowen v. State, 24 So. 551. 
 
 132 Palmore v. State, 29 Ark. 248. And see People v. Glen, 173 N. Y. 
 395, where the court in discussing the effect of the words but in no other 
 except the two instances specified in Sec. 313 of the Code of Criminal Pro- 
 cedure says: "That the legislature has the undoubted right to regulate 
 mere matters of procedure in all actions and proceedings, both criminal and 
 civil, is too well established to require either discussion or citation of au- 
 thority. But it is equally clear that no legislative enactment can be per- 
 mitted to deprive the citizen of any of his constitutional rights." 
 
 133 2 Hawk. PI. C. c. 25, Sec. 16; I Chitty Cr. L. 309; Hudson v. State, 
 i Blackf. (Ind.) 317; Thayer v. People, 2 Doug. (Mich.) 417. And see 
 State v. Davis, 22 Minn. 423. 
 
 134 State v. Chambers, 87 Iowa i. 
 
 135 Keitler v. State, 4 G. Greene (Iowa) 291. 
 
 136 Challenge to Grand Jury, 3 N. J. Law Jour. 153. But see CONTRA as
 
 ORGANIZATION AND QUALIFICATIONS. 7 1 
 
 authorized or not, and is afterward withdrawn, this cannot 
 be assigned as error by a defendant. 137 
 
 The defendant must express a desire to challenge; if he fail 
 to demand at the proper time the privilege of exercising this 
 right he cannot afterward complain. 138 If a time is designated 
 by statute when the challenge shall be made, if the defendant 
 does not avail himself of his right at that time he will be held 
 to have waived the privilege. It is no ground for subsequently 
 pleading in abatement or moving to quash, that he was, at 
 the time designated for challenging the grand jurors, confined 
 in prison, friendless, without counsel or funds, or that he was 
 not apprised of his right to challenge. He is presumed to 
 know the law and abide by it; if he should not, his misfortune 
 will afford him no redress. 139 The challenge may be made by 
 an attorney as amicus curiae or as representing accused per- 
 sons awaiting the action of the grand jury. 140 It may be made 
 by a defendant at a later time than that fixed by statute where 
 he was confined in the jail of another county and thereby de- 
 prived of exercising his right to challenge at the proper 
 time. 141 If the defendant declines to challenge when the op- 
 portunity is offered, he thereby waives his right 142 and cannot 
 afterward question the validity of the indictment upon any 
 
 to Iowa, where in the case of Keitler v. State, 4 G. Greene 291, Greene, ]., 
 said: "While the Code expressly confers the right of challenge upon the 
 defendant, it is entirely silent as to the state or private prosecutor, and 
 hence it must be inferred that the object of the law was to limit this right 
 exclusively to defendants." 
 
 137 State v. Gut, 13 Minn, 341. 
 
 138 Ross v. State, i Blackf. (Ind.) 390; Maher v. State, 3 Minn. 444; 
 State v. Hinckley, 4 Id. 345; State v. Hoyt, 13 Id. 132; Kemp v. State, II 
 Tex. App. 174; Brown v. State, 32 Tex. Cr. Rep. 119; Webb v. State, 40 
 S. W. 989; Barber v. State, 46 S. W. 233; Barkmann v. State, 52 S. W. 69. 
 See Reed v. State, i Tex. App. i ; State v. Taylor, 171 Mo. 465 ; Territory 
 v. Ingersoll, 3 Mont. 454. 
 
 139 Maher v. State, 3 Minn. 444; State v. Hinckley, 4 Id. 345; State v. 
 Taylor, 171 Mo. 465; Kemp v. State, n Tex. App. 174; Barber v. State, 46 
 S. W. 233 ; Barkmann v. State, 52 S. W. 69. 
 
 140 Challenge to Grand Jury, 3 N. J. Law Jour. 153. 
 
 141 Russell v. State, 33 Ala. 366. 
 
 142 People v. Phelan, 123 Calif. 551.
 
 72 THE GRAND JURY. 
 
 ground going to the competency of the grand jurors and which 
 could have been raised by challenge. 
 
 The exclusion of a grand juror on a challenge, or for cause, 
 extends only to the particular case in which he was chal- 
 lenged. 143 
 
 In some of the states, statutes have been enacted exempting 
 certain classes of persons from jury service. In many in- 
 stances exempt persons have served upon grand juries and 
 this has led to attacks upon the indictments found by such 
 grand juries upon the theory that the exempt person was not 
 a legal juror. A distinction, however, is to be noted between 
 disqualifications and exemptions; the former vitiate the pro- 
 ceedings if attacked before issue joined; the latter are privil- 
 eges which may be waived by the persons entitled to the bene- 
 fit thereof and an indictment will not be quashed because an 
 exempt person served as a grand juror. 144 
 
 Under a Florida statute providing that persons "under sixty 
 years shall be liable to serve and are hereby made competent 
 jurors," a person over that age was held not a competent 
 juror. 145 In other states having similar statutes the weight of 
 authority is to the contrary. 146 
 
 143 State v. Hughes, i Ala. 655. And see People v. Manahan, 32 
 Calif. 68. 
 
 144 State v. Brooks, 9 Ala. 9; State v. Adams, 20 Iowa 486; Slagel v. 
 Com., 5 Ky. Law. Rep. 545 ; State v. Stunkle, 41 Kan. 456 ; State v. Quimby, 
 51 Me. 395; State v. Wright, 53 Me. 328; Owens v. State, 25 Tex. App. 552. 
 And see the cases cited in note 146. 
 
 145 Kitrol v. State, 9 Fla. 9. The decision in this case was 
 rested wholly upon the words of the statute, Forward, J., saying: 
 "Had the statute ended where it says 'shall be liable to serve,' then 
 we might with propriety say, the statute leaves it a question of privilege 
 with the juror; but the statute goes further; it declares that such persons 
 are competent jurors, &c. It follows that if such persons are competent, 
 others not possessed of such qualifications are not competent. 
 
 "It was evidently the intention of the legislature to secure, for the protec- 
 tion of the citizen whose rights might be affected, a grand jury composed 
 of members possessing certain qualifications, defined by the law. In giving 
 this' statute such a construction we carry out that intention. We are there- 
 fore of the opinion that a person over sixty years of age is not, under 
 the statute, a competent grand juror." 
 
 146 Spigener v. State, 62 Ala. 383 ; Loeb v. State, 75 Ga. 258 ; Carter v.
 
 ORGANIZATION AND QUALIFICATIONS. 73 
 
 Section 1671 R. S. U. S. provides: "All artificers and work- 
 men employed in the armories and arsenals of the United 
 States shall be exempted, during the time of service, from ser- 
 vice as jurors in any court." 
 
 Objections to the personal qualifications of a grand juror 
 may be divided into two classes. 147 
 
 1. Those where the disqualification is imposed by statute or 
 by the common law, to which exception may be taken at any 
 time before the defendant pleads to the indictment 148 
 
 2. Those where the juror does not stand indifferent be- 
 tween the state and the accused and may be challenged for 
 favor, 149 but in this case unless the right of challenge is exer- 
 cised before the indictment is found it cannot thereafter be ex- 
 ercised. 
 
 With the exception of the provisions of the United States 
 Revised Statutes that no person shall be a grand juror who 
 has been engaged in rebellion against the United States, 150 
 which has been held to be an absolute disqualification; 181 or 
 a person who has served as a grand juror within two years 182 
 
 State, Id. 747; Jackson v. State, 76 Ga. 551 ; Davidson v. People, 90 111. 221 ; 
 State v. Miller, 2 Blackf. (Ind.) 35; Booth v. Com., 16 Gratt. (Va.) 519; 
 State v. Edgerton, 69 N. W. 280. 
 
 147 U. S. v. Williams, 28 Fed. Cas. 666. 
 
 148 Crowley v. United States, 194 U. S. 461 ; State v. Herndon, 5 Blackf. 
 (Ind.) 75; State v. Griffice, 74 N. C. 316; McTigue v. State, 63 Tenn. 313. 
 In the following cases it was held that the objection must be made before 
 indictment found: State v. Hamlin, 47 Conn. 95; State v. Felter, 25 Iowa 
 67 ; State v . Harris, 38 Id 242 ; Com. v . Smith, 9 Mass. 107 ; Lacey v. State, 
 31 Tex. Cr. Rep. 78; People v. Jewett, 3 Wend. (N. Y.) 314. This ruling, 
 however, was criticized in Newman v. State, 14 Wis. 393, Judge Cole say- 
 ing: "We think these cases are unsound in reason and principle; and that 
 the current of authorities is the other way." 
 
 149 Holland v. Com., 82 Pa. 306 ; Com. v. Cosier, 8 Luz. Leg. Reg. 97 : 
 Com. v. Craig, 19 Pa. Sup. Ct. 8r ; U. S. v. Jones, 31 Fed. Rep. 725; U. S. 
 -: White, 28 Fed. Cas. 572 ; State v. Ames, 96 N. W. 330. 
 
 150 R. S. U. S. Sec. 820. 
 
 151 U. S. v. Hammond, 26 Fed. Cas. 99. 
 
 152 R. S. U. S. Sec. 812. For a similar ruling under Rev. St. 5164 of 
 Ohio see Roth v. State, 3 Ohio Cir. Ct. Rep. 59, where upon issue joined 
 on plea in abatement the court excluded defendant's evidence showing that 
 a grand juror had previously served within two years from the time at
 
 74 THE GRAND JURY. 
 
 which has been held to be a disqualification which can only be 
 taken advantage of by challenge, 153 the grand jurors in the 
 Federal courts may be challenged for the same causes as a 
 grand juror serving in the highest court of the state within 
 which such Federal court may be located. 164 
 
 In the case of Crowley v. United States, 155 it was held that 
 a disqualification of a grand juror imposed by statute is a 
 matter of substance and cannot be regarded as a mere defect 
 or imperfection within the meaning of Section 1025 R. S. U. 
 S. 
 
 The challenge to grand jurors for favor was a common law 
 right, 166 but if not exercised before an indictment is found, the 
 right is wholly gone, 157 notwithstanding a defendant may have 
 had no knowledge that he was charged with any offence. It was 
 perhaps first used in the United States on the trial of Aaron 
 Burr for treason in 1807. 
 
 In that case, "the grand jury being reduced to sixteen, 
 Colonel Burr claimed the right to challenge for favor. This 
 challenge he admitted was not a peremptory challenge and 
 good cause must be shown to support it." 158 
 
 The authors of a well known work upon juries comment 
 
 which the indictment was found. The Circuit Court on appeal held this to 
 be error and reversed the judgment of the lower court. See State v. Elson, 
 45 Ohio St. 648; State v. Ward, 60 Vt. 142. 
 
 153 U. S. v. Reeves, 27 Fed. Cas. 750. In Roth v. State, 3 Ohio Cir. Ct. 
 Rep. 59, the appellate court sustained the objection to the indictment that a 
 grand juror had served as a petit juror within two years in violation of 
 the Ohio statute. The point that the question should have been raised by 
 challenge and that it could not be raised by plea in abatement does not 
 seem to have been considered in this case. CONTRA U. S. v. Clark, 46 Fed. 
 Rep. 633; State v. Brown, 28 Ore. 147. 
 
 154 U. S. v. Reed, 27 Fed. Cas. 727; U. S. v. Clune, 62 Fed. Rep. 798. 
 
 155 194 U. S. 461. In this case Mr. Justice Harlan discusses in an 
 admirable manner the question as to when a plea in abatement may be filed. 
 
 156 But see contra Sheridan's Trial, 31 How. St. Tr. 567. 
 
 157 The challenge must be made before the grand jury is sworn: State 
 v. Ames, 96 N. W. 330. In the case of State v . Hamlin, 47 Conn. 95, it was 
 doubted whether the members of a grand jury could be challenged for favor 
 before they were sworn. 
 
 158 U. S. v. Aaron Burr, 25 Fed. Cas. 55.
 
 ORGANIZATION AND QUALIFICATIONS. 75 
 
 upon challenges to grand jurors in the following language, 159 
 "If it is to be conceded that the right of challenging grand 
 jurors existed at common law, it would seem clear that con- 
 sistency requires that this right should embrace all kinds of 
 challenge, namely: to the array, for cause, and peremptory. 
 Perhaps the best evidence that a challenge of any sort to grand 
 jurors is anomalous, is found in the fact that no court was ever 
 sufficiently bold to allow peremptory challenges to grand 
 jurors." 
 
 Their criticism, however, will be seen to be without merit 
 when we consider that the grand jury in criminal cases is of 
 much greater antiquity than the petit jury, 160 the qualifica- 
 tions of which were clearly defined. If any person was re- 
 turned thereon who was not qualified, the only manner in 
 which the disqualification could be made known and taken ad- 
 vantage of, was by an objection made before the justices. 
 A defendant could not peremptorily challenge a grand juror in 
 the majority of cases since he would have no notice that they 
 were considering an accusation against him until presentment 
 was actually made. In the time of Bracton and Britton peremp- 
 tory challenges were wholly unknown, while both writers de- 
 scribe with great care the objections which may be made to 
 the competency of the jurors. 
 
 In 1811 on Sheridan's Trial, 161 Mr. Justice Osborne refused 
 to permit grand jurors to be challenged, holding that "In the 
 case of a grand juror, the objection is to be relied upon, in the 
 form of a plea. Therefore, I think that there does not exist 
 by the common law, the right to challenge a grand juror." 
 Since that time this has been the uniform English practice. 
 
 That the right to challenge grand jurors for cause or for 
 favor has been but seldom used, cannot be made an argument 
 against its existence. It is firmly established in the common 
 law and can only be destroyed by legislative enactment. 
 
 If a grand juror is disqualified when drawn and summoned 
 
 159 Thompson & Merriam on Juries, Sec, 513. 
 
 160 Supra. 10. 
 
 161 31 How. St Tr. 567.
 
 76 THE GRAND JURY. 
 
 but becomes qualified before service as such, an indictment 
 found by the grand jury of which he is a member will be sus- 
 tained; 162 but where a grand juror though competent when 
 drawn and summoned was incompetent when a true bill was 
 found, the indictment was quashed. 163 
 
 A grand juror may be challenged for favor who has con- 
 scientious scruples against capital punishment, 164 for while the 
 grand jury is usually not sworn in any particular cause, it 
 may be necessary for them to consider a bill charging a capital 
 offence. A similar ruling was made in the case of United 
 States v. Reynolds where a grand juror had conscientious 
 scruples against indicting persons charged with the crime of 
 polygamy. 165 In this case it was said : "A person who upon 
 his conscience could not find indictments under a law, would 
 not make a good juryman to enforce that law. And if all 
 members or a majority of a grand jury had like scruples, that 
 ancient and venerable body would not only become useless, 
 but also an absolute hindrance to the enforcement of the law. 
 A party having these conscientious scruples would, if sworn 
 upon the grand jury, have to commit moral perjury. He upon 
 oath, admits that his conscience forbids his aiding in the en- 
 forcement of a specific law, yet as a grand juryman he swears 
 to go counter thereto, and enforce the law." 
 
 A challenge may be made where a grand juror has formed 
 and expressed an opinion as to the guilt or innocence of the 
 accused 166 but this only applies where such grand juror is not 
 
 162 Collins v. State, 31 Fla. 574 ; and see State v. Perry, 29 S. E. 384. 
 
 163 State v. Wilcox, 104 N. C. 847. 
 
 164 Jones v. State, 2 Blackf. (Ind.) 475; Gross v. State, 2 Ind. 329. 
 
 165 U. S. v. Reynolds, I Utah 226. 
 
 166 Com. v. Clarke, 2 Browne (Pa.) 325; U. S. v. White, 28 Fed. Cas. 
 572; U. S. v. Aaron Burr, 25 Fed. Cas. 55 ; U. S. v. Jones, 31 Fed. Rep. 725 ; 
 U. S. v. Clune, 62 Fed. Rep. 798; State v. Hamlin, 47 Conn. 95; State v. 
 Hinkle, 6 Iowa 380 ; State v. Gillick, 7 Id. 287 ; State v . Osborne, 61 Id. 330 ; 
 State v. Shelton, 64 Id. 333; State v. Billings, 77 Id. 417; People v. Jewett, 3 
 Wend. (N. Y.) 314; In re Annexation to Borough of Plymouth, 167 Pa, 
 612. CONTRA State v. Clarissa, n Ala. 57; People v. District Court, 29 
 Colo. 83; Musick v. People, 40 111. 268; Com. v. Woodward, 157 Mass. 516. 
 
 In Betts v. State, 66 Ga. 508, in delivering the opinion of the court, Speer, 
 J., said: "To hold that a grand juror was subject to challenge propter
 
 ORGANIZATION AND QUALIFICATIONS. 77 
 
 the prosecutor; 167 or where he has any personal or financial 
 interest in the result of the finding of the grand jury; 108 or 
 that he is an alien; 168 or not a Qualified elector 170 or free- 
 holder 171 or householder. 172 But it has been held not to be a 
 ground for challenge that a grand juror belonged to a par- 
 ticular political party and was a strong partisan; 173 that he had 
 previously issued a warrant for the arrest of the defendant and 
 had expressed an opinion as to his guilt, 174 that a grand juror 
 was a tax payer and acted on a grand jury which found an in- 
 dictment against the township supervisors for neglecting to re- 
 
 affcctum would lead to endless embarrassments in criminal proceedings. 
 We presume it rarely occurs that a crime, especially of great magnitude, 
 does not elicit an expression of opinion from that class of citizens who 
 make up the grand jury; to allow this expression to disqualify and vacate 
 an indictment would entail endless delay and embarrassment in the prose- 
 cution of crime, and too often secure immunity to the criminal." 
 
 The Supreme Court of Georgia, however, appears to have weakened in 
 this view in the next year, since in the cases of Williams v. State, 69 Ga. II 
 and Lee v. State, Id. 705, the court intimated that if a defendant could ex- 
 cept to a grand juror at all on the ground that he had formed and ex- 
 pressed an opinion, it should be done before a true bill was found. 
 
 167 The prosecutor is disqualified by statute to act as a grand juror: 
 State v . Holcomb, 86 Mo. 371 ; State v. Williamson, 106 Mo. 162 ; State v. 
 Millain, 3 Nev. 409 ; People v. Smith, 76 N. W. 124. 
 
 168 Holland v. Com., 82 Pa. 306; Delaware River Road, 5 Dist. Rep. 
 (Pa.) 694; In re Bridge in Nescopeck, 3 Luz. Leg. Reg. (Pa.) 410; In re 
 County Bridge, 3 Luz. Leg. Reg. (Pa.) 196; Fisher v. State, 93 Ga. 309. But 
 see State v. Brainerd, 56 Vt. 532. 
 
 169 Supra. 63, 64, note 97. 
 
 170 Supra. 63. 
 
 171 State v. Bleekley, 18 Mo. 428. Supra. 6a. 
 
 172 Supra. 62. 
 
 173 U. S. v. Eagan, 30 Fed. Rep. 608. 
 
 174 U. S. v. Belvin, 46 Fed. Rep. 381 ; U. S. v. Williams, 28 Fed. Cas. 
 666; In re Tucker, 8 Mass. 286. CONTRA People v. Smith, 76 N. W. 124. 
 In i Whart. Cr. Law, Sec. 469, the ruling as set forth in the text is severely 
 criticised. But while it is true that if the accuser corruptly causes himself 
 to be placed upon the grand jury a challenge should be sustained and the 
 panel purged, yet if he was returned without his agency or instigation, the 
 challenge should not be sustained, for as a lawful member of that body a 
 presentment could be made upon knowledge which he might communicate 
 to them.
 
 78 THE GRAND JURY. 
 
 pair a township road ; 175 that he was the magistrate who com- 
 mitted the defendant; 178 that he was a civil officer 177 or special 
 police officer, 178 or that he was a member of an association the 
 object of which was to detect crime ; 179 that he has subscribed 
 funds for the suppression of crime; 180 or that his name was 
 absent from the last assessment roll of the county from which 
 he is summoned. 181 
 
 Where the prosecutor is returned upon the grand jury with- 
 out his agency or instigation the better opinion is that the 
 challenge for favor should not be sustained for as a lawful 
 member of that body a presentment could be made upon knowl- 
 edge which he might communicate to them as to this par- 
 ticular offence. 
 
 Where a grand juror admits that he has formed an opinion 
 as to the guilt or innocence of the accused but declares that his 
 opinion would not preclude him from passing on the question 
 impartially as presented by the evidence, 182 or where the evi- 
 dence of the alleged forming and expressing of opinion is not 
 clear, a challenge will not be sustained. 183 
 
 If a case be submitted to the grand jury which considered a 
 former bill against the same defendant, the question at once 
 arises whether or not they are competent to again pass upon 
 the question by reason of their expressed opinion as to the 
 guilt of the accused in finding the former indictment. There 
 are but few decisions upon this point and the better view seems 
 to be that the grand jurors may be challenged upon the ground 
 
 175 Com. -v. Bradney, 126 Pa. 199; Penna. Act April 16, 1840, Sec. 6, P. 
 L. 411 ; and see State -u. Newfane, 12 Vt. 422. 
 
 176 U. S. v. Palmer, 27 Fed. Cas. 410; State v. Chairs, 68 Tenn. 196. 
 
 177 Com. v. Rudd, 3 Ky. Law Rep. 328; Com. v. Pritchett, 74 Ky. 277; 
 Owens v. State, 25 Tex. App. 552; Com. v. Strother, i Va. Cas. 186. 
 
 178 Com. v. Hay den, 163 Mass. 453. 
 
 179 Musick v. People, 40 111. 268. See Com. v. Craig, 19 Pa. Superior 
 Ct. 81. 
 
 180 Koch v. State, 32 Ohio St. 353. 
 
 181 U. S. v. Benson, 31 Fed. Rep. 896; State v. Harris, 97 N. W. 1093. 
 
 182 State v. Hinkle, 6 Iowa 380; State v. Shelton, 64 Id. 333; State v. 
 Billings, 77 Id. 417. 
 
 183 State v. Billings, 77 Iowa 417.
 
 ORGANIZATION AND QUALIFICATIONS. 79 
 
 that they have formed and expressed an opinion upon the mat- 
 ter to come before them. 184 
 
 The reason for this is best expressed in the language used 
 by Stockton, J., in the case of State v. Gillick : 18B "The juror 
 challenged was as much disqualified from taking any part in 
 the consideration of the charge against the defendant, by rea- 
 son of the opinion formed by him from the evidence given un- 
 der oath in the grand jury room, and by his action thereon, 
 as if that opinion had been formed from rumor, or had been 
 induced by malice or ill-will. It is the preconceived opinion, 
 that renders a grand jury incompetent, and not the sources 
 from which that opinion is formed or derived. A juror who 
 has formed or expressed an opinion, is set aside, because he is 
 supposed not to be indifferent to the result of the matter to be 
 tried. Such an opinion, in the presumption of law, is not less 
 
 184 In State v. Osborne, 61 Iowa, 330, this question arose under Section 
 4261 of the Code and was considered at length by Beck, J., who says : "In 
 the absence of any statute so providing, the prisoner ought to be permitted 
 to exercise the right to challenge the jurors at any time before they con- 
 sider the case, upon information gained that they are lawfully subject to 
 challenge on account of matters arising after a prior challenge had been 
 made. A different rule would defeat the very purpose of the statute, name- 
 ly, to secure a fair and unprejudiced grand jury, to whom the charge shall 
 be submitted. In the case before us, after the first indictment was set 
 aside, the rights of the prisoner were no other or different from what they 
 were when the first challenge was made. He had a right to an unpreju- 
 diced grand jury. The proceedings resulting in the first indictment stood 
 for nothing.. The prisoner should have been permitted to fully exercise 
 his right to challenge the jurors. There was ground for believing, nay, for 
 knowing, that the jurors had formed and expressed an opinion of the pris- 
 oner's guilt, for they had heard the evidence, and upon their oaths re- 
 turned an indictment against him. But, it is said, they gained the know- 
 ledge of the facts, and expressed their opinion of his guilt, acting as grand 
 jurors. This does not change the case. Suppose one of the grand jurors 
 had been upon a coroner's jury, or had been upon a jury before whom an 
 accomplice had been tried and convicted. In each case the juror would 
 have gained knowledge of the facts, and expressed an opinion of the pris- 
 oner's guilt, under circumstances substantially the same as existed in this 
 case. It will not be claimed that he would not be the subject of challenge. 
 It is also said that no prejudice resulted from refusing defendant the right 
 to make the challenge, as he was convicted, and thus shown to be guilty ; 
 and that we must presume another grand jury would have found an in-
 
 8O THE GRAND JURY. 
 
 the effect of partiality and prejudice operating on the mind of 
 the juror, than it is the efficient agent to produce such parti- 
 ality and prejudice on his mind, perhaps without his conscious- 
 ness." 
 
 Upon this principle a plea in abatement has been sustained 
 where it was made to appear that one of the grand jurors who 
 found the indictment had served on a petit jury which form- 
 erly convicted the defendant of the same offence. 186 A pre- 
 cisely opposite view was taken in a case where one of the grand 
 jurors had been a member of the coroner's jury which found 
 that the deceased was murdered by the accused. 187 
 
 An indictment will not be set aside upon the ground that a 
 grand juror was related to the prosecutor by blood or mar- 
 riage, 188 although defendant could have availed himself of this 
 fact by challenge before indictment found. 189 
 
 dictment against him. The facts stated may all be admitted, but we can- 
 not exercise a presumption of a prisoner's guilt in order to sustain proceed- 
 ings resulting in his conviction. Such a rule would in effect declare that a 
 verdict cures all violations of law and irregularities in criminal trials. In 
 People v. Hansted, 135 Calif. 149. it was said by McFarland, J. : "It is 
 clear that grand jurors who have examined the charge against one accused 
 of a crime, and found and presented an indictment again?t him for such 
 crime, thus officially declaring their conviction upon the evidence before 
 them lhat he is probably guilty, are disqualified from again passing upon a 
 second charge against him for the same offence." But see People v. 
 Northey, 77 Calif. 618. 
 
 185 7 Iowa 287. Compare with the language of the court in People v. 
 Northey, 77 Calif. 618. 
 
 186 U. S. v. Jones, 31 Fed. Rep. 725. And see People v. Landis, 139 
 Calif. 426. The case of State v. Cole, 19 Wis. 129, raises this question and 
 presents a contrary ruling, but no reason is given for the ruling and the 
 judgment was reversed on other grounds. And see State v. Wilcox, 104 
 N. C. 847, where the court held that the grand juror was competent and 
 was bound by his oath to communicate to his fellow jurors the knowledge 
 he had acquired while serving upon the petit jury. 
 
 187 Betts v. State, 66 Ga. 508 ; Lee v. State, 69 Ga. 705. It is interesting 
 to note that the ruling in both of these cases is at variance with the illus- 
 tration used by Judge Beck in his opinion in the case of State v. Osborne, 
 61 Iowa 330. Supra, page 79. Note 184. 
 
 188 State v. Russell, 90 Iowa 569; State v. Sharp, no N. C. 604; State v. 
 Easter, 30 Ohio St. 542 ; Simpson v . State, 34 S. E. 204. And see State v. 
 McNinch, 12 S. C. 89 ; Shope v. State, 32 S. E. 140. 
 
 189 Lascelles v. State, 90 Ga. 347.
 
 ORGANIZATION AND QUALIFICATIONS. 8l 
 
 In Tennessee, 189 * Section 5085 of the Code, provides that if 
 any member of the grand jury is connected by blood or mar- 
 riage with the person charged, he shall not be present or take 
 part in the consideration of the charge. A defendant pleaded 
 in abatement that one of the grand jurors was related to him 
 within the prohibited degree by affinity and the plea was sus- 
 tained and the indictment quashed. The appellate court, 
 however, reversed the judgment of the court below and in its 
 opinion said : "But the provision is merely directory, as the 
 next section, which provides for supplying the vacancy during 
 the investigation, clearly shows. No doubt, either the state or 
 the defendant might make the objection, and it is the duty of 
 the juror to conform to the requirement. But if, through inad- 
 vertence, a relation or connection of the person charged does 
 actually participate in the finding, it is not seen how his rela- 
 tionship could have prejudiced such person." 
 
 That one of the grand jurors making presentment of an in- 
 dictment for not making and opening a road through a town 
 was a taxable inhabitant of the town, cannot be used as an ob- 
 jection to the validity of the indictment by the town as a defen- 
 dant, since his interest would be favorable to the defendant. 180 
 
 A person is not disqualified from serving as a grand juror 
 by reason of his absence from his domicile, there being no in- 
 tention to change the domicile; 101 but should he remove after 
 being summoned but before serving as a grand juror, he 
 thereby becomes incompetent to act. 192 
 
 A grand juror is not disqualified because of his religious be- 
 lief. 193 
 
 When a challenge was made for favor it has been held to 
 be against public policy to permit the grand juror to be ex- 
 amined upon his voir dire to establish the favor, but the court 
 
 189* State v. Maddox, i Lea (Tenn.) 671. 
 
 190 State v. Newfane, 12 Vt. 422. See Com. v. Ryan, 5 Mass. 90; Com. 
 v. Brown, 147 Mass. 585. 
 
 191 State v. Alexander, 35 La. Ann. noo; Harless v. U. S., I Morris 
 (Iowa) 169; State v. Carlson, 62 Pac. 1016. 
 
 192 State v. Wilcox, 104 N. C. 847; and see State v. Kouhns, 103 Iowa 
 720. 
 
 193 Com. v. Smith, 9 Mass. 107; State v. Wilson, 2 McCord, (S. C.) 393- 
 
 6
 
 82 THE GRAND JURY. 
 
 was willing that it should be proved by other evidence. 194 "A 
 due regard for public policy as well as for the interests of jus- 
 tice and the nature of the inquiry, forbids that grand jurors 
 should be polled and tried in this manner. If the prisoner 
 have evidence to purge the panel, let him produce it." 195 
 
 That this was the law was recognized by Colonel Burr 196 
 upon his trial, who, after announcing his intention to challenge 
 for favor said to the Chief Justice (Marshall) : "It would, of 
 course, be necessary to appoint triers to decide, and before 
 whom the party and the witnesses to prove or disprove the 
 favor must appear." The same method of determining a chal- 
 lenge for favor was pursued in Pennsylvania. 197 
 
 While peremptory challenges to grand jurors are not al- 
 lowed, 199 a practice bordering closely upon this was permitted 
 
 194 Brown v. Com., 76 Pa. 319. And see Territory v. Hart, 14 Pac. 768. 
 The Act of Congress of March 22, 1882, relating to the Territory of Utah 
 provided that in prosecutions for bigamy, polygamy or unlawful cohabita- 
 tion under any statute of the United States it should be cause for challenge 
 that a proposed juror was himself living in the practice of bigamy, poly- 
 gamy or unlawful cohabitation with more than one woman, and allowing 
 the juror to be examined upon his oath as to such matters. This was held 
 to apply to grand jurors in Clawson v. U. S., 114 U. S. 477. In the case 
 of State v. Hughes, i Ala. 655, the court refused to allow counsel for de- 
 fendant to ask grand jurors before they were sworn "whether they had 
 formed and expressed an opinion as to the guilt or innocence of the pris- 
 oner" 
 
 195 Brown v. Com. 76 Pa. 319. In Com. v. Craig, 19 Pa. Superior Ct. 
 81, upon motion to quash upon the ground of favor, the court permitted 
 the examination of the grand juror whom it was alleged did not stand in- 
 different. The grand jurors were examined on their voir dire: State v. 
 Billings, 77 Iowa 417; Jones v. State, 2 Blackf. (Ind.) 475. 
 
 196 U. S. v. Aaron Burr, 25 Fed. Cas. 56. 
 
 197 Com. v. Clarke, 2 Browne (Pa.) 323. 
 
 199 Jones v. State, 2 Blackf. (Ind.) 475. In this case Stevens, J. said: 
 "There is no statute or sanctioned practice in this state, authorizing 
 a prisoner to peremptorily challenge grand jurors; and it is believed that 
 no such practice exists in England. The common law requires grand 
 jurors to be good and lawful freeholders, and the English statutes require 
 several additional qualifications ; and Chitty in his treatise on criminal law, 
 when speaking of these qualifications of grand jurors, says that a prisoner, 
 who is at the time under a prosecution for an offence about to be sub- 
 mitted to the consideration of a grand jury, may challenge any of the
 
 ORGANIZATION AND QUALIFICATIONS. 83 
 
 upon Lewis' trial 200 where the attorney for the Crown took ex- 
 ception to some of the grand jurors and stood them aside, the 
 court permitting it, although it had previously in another 
 case refused to permit such a proceeding. A somewhat simi- 
 lar proceeding was taken in a case in a United States court, 201 
 the court of its own motion excusing certain of the grand 
 jurors and substituting other qualified persons in their stead. 
 No objection was made to this procedure by counsel for de- 
 fendant although they were then present, but the question be- 
 ing afterward raised the court sustained its action. 
 
 This action, however, is open to severe criticism and such 
 a practice should not be permitted to continue. If upheld, it 
 places within the power of the court the ability to so mold 
 the grand jury that it may be deprived of its independence of 
 action. 202 The statutes and the common law prescribe the 
 way in which a grand jury shall be constituted and what shall 
 disqualify any person from acting as a grand juror, and it 
 would seem that where there is no statute giving the court 
 the power on its own motion to remove persons who are duly 
 qualified in order to substitute others, such an act is done with- 
 out warrant of law, and a grand jury thus made up is ille- 
 gally constituted. 
 
 The general tendency, however, is to preserve to grand 
 
 grand jurors, who lacks any of these qualifications required by the com- 
 mon and statute laws. Chitty refers to Hawkins' Pleas of the Crown, 
 where it is said that a challenge to grand jurors is very properly limited 
 to persons who are, at the time, under a prosecution for an offence about 
 to be submitted to a grand jury. By these authorities it is clear, that in 
 England, these challenges are limited to one certain class of cases, and 
 then only for cause." 
 
 200 7 How. St. Tr. 249. 
 
 201 U. S. v. Jones, 69 Fed Rep. 973. And see also Territory v. Earth, 
 15 Pac. 673; People v. Hidden, 32 Calif. 445; State v. Drogmond, 55 Mo. 
 87. In State v. Bowman, 73 Iowa no, where the grand jury was empaneled 
 in the absence of several persons drawn to serve as jurors, they failing to 
 be present by reason of the judge stating to them that they would not be 
 wanted and an indictment was found in their absence, the court held that 
 the grand jury was illegally constituted and the indictment was quashed. 
 And see Baker v. State, 23 Miss. 243. 
 
 202 O'Byrne v. State, 51 Ala. 25; Finley v. State, 61 Ala. 201 ; Keitler v. 
 State, 4 G. Greene (Iowa) 291 ; Portis v. State, 23 Miss. 578.
 
 84 THE GRAND JURY. 
 
 jurors the right to act unless in some manner they are not com- 
 petent. Thus where a district attorney in good faith but 
 through a misunderstanding excluded a legally competent 
 grand juror, who had been duly sworn, from the grand jury 
 room during the consideration of a certain case by the grand 
 jury, the court sharply criticised the action of the district at- 
 torney. 203 
 
 In England the rule is now firmly established that the court 
 cannot lawfully order a grand juror to withdraw himself 
 from the panel in a particular case, 204 and inasmuch as all ob- 
 jections to the qualifications of a grand juror must be taken 
 by plea in abatement 205 this rule would seem to apply even 
 although the juror was not competent. 
 
 It is ordinarily within the province of the court to excuse 
 a grand juror upon application and showing sufficient rea- 
 son why he should not serve. 206 And where the record does 
 not show the reason for excusing such person, it will be pre- 
 sumed that the excuse was sufficient. 207 The court may of its 
 own motion dismiss a grand juror for cause 208 and may fill 
 the vacancy with a qualified juror 209 or a talesman. 210 The 
 
 203 Com. v. Bradney, 126 Pa. 199. 
 
 204 Bac. Abr. Indict. C. In Vermont, in the case of In re Baldwin, 2 
 Tyler 473, the Supreme Court held that they had no power to order a 
 grand juror to withdraw from the panel in any particular case, although 
 it was one of a complaint against himself. 
 
 205 Supra. 75. 
 
 206 Denning v. State, 22 Ark. 131 ; People v. Hidden, 32 Calif. 445 ; Mills 
 v. State, 76 Md. 274; Portis v. State, 23 Miss. 578; State v. Bradford, 57 
 N. H. 188; State v. Ward, 60 Vt. 142; State v. Schieler, 37 Pac. 272. But 
 see CONTRA Smith v. State, 19 Tex. App. 95; Watts v. State, 22 Id. 572; 
 Drake v. State, 25 Id. 293 ; Trevinio v. State, 27 Id. 372. 
 
 207 Burrell v. State, 129 Ind. 290; Cotton v. State, 31 Miss. 504, and see 
 Wallis v. State, 54 Ark. 6n. 
 
 208 In re Ellis, 8 Fed Cas. 548; People v. Leonard, 106 Calif. 302; 
 State v. Bradford, 57 N. H. 188 ; State v . Jacobs, 6 Tex. 99 ; Com. v. Bur- 
 ton, 4 Leigh. (Va.) 645; State v. Brooks, 48 La. Ann. 1519; Territory v. 
 Barth, 15 Pac. 673. CONTRA Keitler v. State, 4 G. Greene (Iowa) 291. 
 
 209 Denning v. State, 22 Ark. 131 ; State v. Reisz, 48 La. Ann. 1446; Mill 
 v. State, 76 Md. 274 ; State v .Wilson, 85 Mo. 134 ; State v. Thomas, 61 Ohio 
 St. 444 ; Jetton v. State, 19 Tenn. 192 ; People v. Lee, 2 Utah 441 ; Com. v. 
 Burton, 4 Leigh (Va.) 645. In Peters v. State, 08 Ala. 38; the court directed
 
 ORGANIZATION AND QUALIFICATIONS. 85 
 
 grand jury as thus constituted is a legal body, although the 
 foreman be not again appointed nor the oath re-administered 
 to him or to the other members as a body. 211 
 
 In Arkansas where more than sixteen persons were se- 
 lected and summoned and the record showed that only six- 
 teen were empaneled, it was held that it would be presumed 
 that the grand jurors in excess of the legal number were ex- 
 cused from serving. 212 
 
 After the grand jury has been sworn, but before indictment 
 found, a defendant may still either challenge the array or the 
 polls 218 (except in states where the statute otherwise pro- 
 vides) for the same causes and with the same effect as if the 
 right of challenge had been exercised before the oath was ad- 
 ministered, 214 reasonable excuse being shown in the Federal 
 courts for failure to act before the grand jury was fully organ- 
 ized. 216 
 
 After the defendant has been indicted he may except to the 
 array or to the individual jurors for any cause which would 
 disqualify except for favor. 216 In the Federal courts this 
 
 the sheriff to add two new members to the jury without first making an 
 order discharging two who were incapacitated by illness from serving 
 and it was held that the grand jury was illegally constituted. And see 
 Ramsey v. State, 21 So. 209; Portis v. State, 23 Miss. 578. 
 
 210 Germolgez v. State, 99 Ala. 216; State v. Fowler, 52 Iowa 103; State 
 v. Ward, 60 Vt. 142. 
 
 211 State v. Thomas, 61 Ohio St 444. 
 
 212 Wallis v. State, 54 Ark. 611. 
 
 213 People v. Colmere, 23 Calif. 632; State v. Hamlin, 47 Conn. 95; U. 
 S. v. Blodgett, 35 Ga. 336; Hudson v. State, i Blackf. (Ind.) 317; Ross r. 
 State, Id. 390; Jones v. State, 2 Id. 475; Mershon v. State, 51 Ind. 14; 
 Com. v. Smith, 9 Mass. 107; Com. v. Clark, 2 Browne (Pa.) 323; Lacy r. 
 State, 31 Tex. Cr. Rep. 78; Territory v. Hart, 14 Pac. 768. See State v. 
 Clarissa, n Ala. 57. 
 
 214 State v. Hamlin, 47 Conn. 95. 
 
 215 U. S. v, Blodgett, 30 Fed. Cas. 1157; Agnew v. U. S., 165 U. S. 36. 
 
 216 Penalty v. State, 12 Ark. 630; Barney v. State, 12 Smedes & M. 
 (Miss.) 68; State v. Larkin, 11 Nev. 314; Rolland v. Com., 82 Pa. 306. 
 CONTRA Lee v. State, 45 Miss. 114. In Com. v. Smith, 9 Mass. 107, it was 
 held that after indictment filed, no objection of irregularity in the em- 
 paneling of the grand jury would be received as a plea to such indictment. 
 In Boyington v. State, 2 Port (Ala.) 100, it was held too late to except 
 to the qualifications of a grand juror after indictment filed and accepted 
 in court.
 
 86 THE GRAND JURY. 
 
 right is limited to those cases where the defendant shows good 
 cause why he could not raise the objection either before the 
 grand jury was sworn or before it found the indictment. 217 
 The objection, however, cannot be raised by challenge either to 
 the array or to the polls but must be raised by a motion to 
 quash the indictment, and in the Federal courts may also be 
 raised by a plea in abatement, 218 or by leave of court a de- 
 fendant may file two or more pleas in abatement. 219 It cannot 
 be raised by demurrer unless the defect appears upon the face 
 of the indictment. 220 
 
 The accused cannot afterward "plead in abatement the same 
 grounds or facts upon which he has challenged the array of the 
 grand jury. 221 
 
 The courts do not look with favor, at the present time, upon 
 objections to the grand jury which are based merely upon the 
 ground of irregularity in its organization, the defendant hav- 
 ing suffered no prejudice thereby, 222 and the Federal courts are 
 averse to quashing an indictment upon such a ground and will 
 not do so unless the defendant take advantage of such irregu- 
 larity at each stage of the proceedings. 223 
 
 217 Carter v. Texas, 177 U. S. 442; Wolfson v. U. S., 101 Fed. Rep. 430; 
 U. S. v. Reeves, 27 Fed. Cas. 750; U. S. v. Jones, 31 Fed. Rep. 725; Agnew 
 v. U. S., 165 U. S. 36. 
 
 218 Carter v. Texas, 177 U. S. 442; U. S. v. Reeves, 27 Fed. Cas. 750; 
 U. S. v. Gale, 109 U S. 65 ; Agnew v. U. S., 165 U. S. 36. And see Mer- 
 shon v. State, 51 Ind. 14 ; State v. Seaborn, 15 N. C. 305 ; State v. Ward, 
 60 Vt. 142. In Lee v. State, 45 Miss. 114, it was held that the compe- 
 tency or qualifications of the grand jury cannot be questioned by plea in 
 abatement, the empaneling being conclusive as to these facts. And see Dur- 
 rah v. State, 44 Miss. 789; Head v. State; Id. 731. See also Supra. 64. 
 Note loo. 
 
 219 U. S. v. Richardson, 28 Fed. Rep. 61. 
 
 220 State v. Brandon, 28 Ark. 410; Williams v. State, 60 Ga. 88; Jack- 
 son v. State, 64 Ga. 344 ; State v. Hart, 29 Iowa 268 ; State v. Vincent, 91 
 Md. 718; Com. v. Church, i Pa. 105; Com. v. Smith, 27 S. W. 810; Fisher 
 v. U. S., 31 Pac. 195. 
 
 221 Meiers v. State, 56 Ind. 336; McClary v. State, 75 Ind. 260. 
 
 222 Woodward v. State, 33 Fla. 508 ; State v. Glascow, 59 Md. 209 ; Cox 
 v. People, 80 N. Y. 500. 
 
 223 Wolfson v. U. S., 101 Fed. Rep. 430; U. S. v. Eagan, 30 Fed. Rep. 
 608.
 
 ORGANIZATION AND QUALIFICATIONS. 87 
 
 Where the defendant before pleading to the indictment does 
 not object to the array or to the polls of the grand jury, he 
 will be held to have waived his right and cannot afterward 
 raise the objection upon a motion in arrest of judgment, 224 
 and it is too late to move to quash the array after the defen- 
 dant has been arraigned, pleaded "not guilty" and four jury- 
 men have been selected. 225 
 
 It has been held that the presence of one disqualified per- 
 son upon the panel of grand jurors will vitiate the indictment 
 found by it, 226 but this is subject to the qualification that the 
 defendant had no opportunity to challenge the disqualified 
 juror before indictment found, and raises the objection either 
 by motion to quash or by plea in abatement before pleading to 
 the indictment. After a trial on the merits, the objection can- 
 not be raised on a motion in arrest of judgment. 227 
 
 224 State v. Clarissa, 11 Ala. 57; Horton v. State, 47 Id. 58; Sanders v. 
 State, 55 Id. 183; Shropshire v. State, 12 Ark. 190; Penalty v. State, Id. 630; 
 Stewart v. State, 13 Id. 720; Dixon v. State, 29 Id. 165; Wright v. State, 
 42 Id. 94; Carpenter v. State, 62 Id. 286; People v. Hidden, 32 Calif. 445; 
 Terrell v. State, 9 Ga. 58 ; Miller v. State, 69 Ind. 284 ; State v. Wash. 33 La. 
 Ann. 896 ; State v. Griffin, 38 Id. 502 ; McQuillen v. State, 8 Smedes & M. 
 (Miss.) 587; State v. Borroum, 25 Miss. 203; Green v. State, 28 Id. 687; 
 State v. Smallwood, 68 Mo. 192; State v. Clifton, 73 Mo. 430; State v. 
 Rand, 33 N. H. 216; People v. Robinson, 2 Parker Cr. Rep. (N. Y.) 235; 
 People v. Griffin, 2 Barb. (N. Y.) 427; State v. Martin, 2 Ired. (N. C.) 
 101 ; State v. Seaborn, 15 N. C. 305; Com. v. Chauncey, 2 Ashm. (Pa.) 
 90; State v. Motley, 7 S. C. 327; State v. Washington, 28 Tenn. 
 626; Ellis v. State, 92 Id. 85; Robinson v. Com. 88 Va. 900; Terri- 
 tory v. Armijo, 37 Pac. 1117; Territory v. Barrett, 42 Pac. 66; Barber v. 
 State, 46 S. W. 233. The same ruling was made in Dyer v. State, 79 
 Tenn. 509, even though a plea in abatement had been filed before general 
 issue pleaded and was not acted upon. 
 
 225 Com. v. Freeman, 166 Pa. 332. And see Com. v. Shew, 8 Pa. Dist. 
 Rep. 484. 
 
 226 U. S. v. Hammond, 26 Fed. Cas. 99; Com. v. Smith, 73 Ky. 476; 
 State v. Rowland, 36 La. Ann. 193; Barney r. State, 12 Smedes & M. 
 (Miss.) 68; State v. Duncan, 7 Yerg. (Tenn.) 271. 
 
 227 Johnson v. State, 62 Ga. 179; State v. Carver, 49 Me. 588; Clare v. 
 State, 30 Md. 163 ; Territory v . Romero, 2 N. Mex. 474 ; State v. Lamon, 10 
 N. C. 175 ; State v. Martin, 24 Id. 101 ; State v. Haywood, 94 N. C. 847 ; 
 State v. Vogel, 22 Wis. 471. But see State v. Parks, 21 La. Ann. 251 ; 
 State v. Rowland, 36 Id. 193.
 
 88 THE GRAND JURY. 
 
 While the right is thus reserved in general to a defendant to 
 take advantage of irregularities in the organization of the 
 grand jury, such irregularity cannot be availed of by a person 
 who attacks the grand jury in a collateral proceeding. 228 It 
 has therefore been held that in a proceeding to punish a wit- 
 ness for defying the authority of the grand jury, he cannot in 
 such collateral proceeding question its regularity; 229 and sim- 
 ilarly, a person cannot refuse to testify before a grand jury 
 upon the ground that it was not empaneled in accordance with 
 the law. 230 
 
 When the grand jurors have appeared in court in answer to 
 the summons, they are then empaneled. 231 This has been ju- 
 dicially determined to mean the final act of the court ascertain- 
 ing who should be sworn immediately preceding the adminis- 
 tration of the oath to the grand jurors. 232 In the absence of 
 any statutory provision prescribing the time when the grand 
 jury shall be organized, it would seem that it may be empan- 
 eled at any time during the term for which it was sum- 
 moned. 233 If, however, the grand jury is not formed in ac- 
 cordance with such statute then the indictments are void. 234 
 
 228 State v. Noyes, 87 Wis. 340. 
 
 229 In re Gannon, 69 Calif. 541. But see In re Lester, 77 Ga. 143. 
 
 230 Ex Parte Hammond, 91 Calif. 545. 
 
 231 In U. S. v. Wilson, 28 Fed. Cas. 725, it was held that although the Act 
 of Congress, July 20, 1840 (5 Stat. 394) provided for the adoption in the 
 Federal courts of the methods of the highest courts of the respective 
 states "in so far as such mode may be practicable," the Federal court sit- 
 ting in Ohio had authority in its discretion to adopt the mode of empan- 
 eling grand juries practiced in the inferior courts of the State. 
 
 232 State v. Ostrander, 18 Iowa 435. 
 
 233 Perkins v. State, 92 Ala. 66; Jackson v. State, 102 Ala. 167; Meiers 
 v. State, 56 Ind. 336. Where the statute provided that the grand jury should 
 be empaneled on the first day of the term, this provision was held to be mere- 
 ly directory and that if empaneled on a subsequent day it was legally consti- 
 tuted : State v. Davis, 14 La. Ann. 678 ; State v. Dillard, 35 Id. 1049. 
 
 234 Yelm Jim v. Territory, i Wash. T. 63 ; Stokes v. State, 24 Miss. 621. 
 The court has refused to quash where the formality of drawing the names as 
 provided by statute was disregarded: Workman v. State, 36 T'enn. 425. 
 Where a statute provided a method for the convening of grand jurors it 
 was held that the empaneling of a grand jury summoned prior to its pas- 
 sage was legal : Bell v. State, 42 Ind. 335. And see State v. Wiltsey, 103 
 Iowa 54-
 
 ORGANIZATION AND QUALIFICATIONS. 89 
 
 Where persons summoned as "trial jurors" were empaneled as 
 a grand jury the indictment was set aside. 235 
 
 The record must show the empaneling of the grand jury 
 otherwise the indictment may be set aside, 236 but this need not 
 be repeated in the record of each indictment found. 237 If the 
 indictment recites the empaneling and the record shows its 
 return into court, this will be sufficient, 238 but if the only evi- 
 dence of the empaneling be the endorsement on the indictment 
 "a true bill" and the foreman's signature, the indictment will 
 be quashed. 239 
 
 In the absence of statutory authority, the same judge can- 
 not organize two successive grand juries with general powers 
 at the same term. 240 If the first grand jury be illegally empan- 
 eled, the court may, during the term, discharge it and empanel 
 another according to law. 241 But the second grand jury can- 
 not be legally empaneled while the first grand jury continues 
 to be recognized as a legal body and before it is set aside. 242 
 
 Should a court without authority of law empanel a grand 
 jury, it has been held that all indictments found by the body so 
 constituted are void. 248 
 
 Where a statute is enacted changing the manner of draw- 
 ing and summoning grand jurors and repealing former stat- 
 utes, a grand jury drawn while the prior statutes are in force 
 may lawfully be empaneled and act after the repealing statute 
 becomes effective. 244 And where a territory is admitted as a 
 
 235 People v. Earnest, 45 Calif. 29. 
 
 236 Parker v. People, 13 Colo. 155; App v. State, 90 Ind. 73. But see 
 Turns v. Com., 47 Mass. 224. 
 
 237 Parker v. People, 13 Colo. 155. 
 
 238 Stout v. State, 93 Ind. 150. 
 
 239 Partner v. State, 41 Ala. 416. 
 
 240 O'Brien v. State, 91 Ala. 16. 
 
 241 Meiers v. State, 56 Ind. 336. 
 
 242 State v. Jacobs, 6 Tex. 99. The discharge of the former grand jury 
 will be presumed: State v. Dusenberry, 112 Mo. 277; State v. Overstreet, 
 128 Id. 470. 
 
 243 Ex Parte Farley, 40 Fed. Rep. 66; O'Brynes v. State, 51 Ala. 25; 
 State v. Doherty, 60 Me. 504; Stevens v. State, 3 Ohio St. 453. And see 
 Davis v. State, 46 Ala. 80 ; Finnegan v. State, 57 Ga. 427. 
 
 244 Bell v. State, 42 Ind. 335; State v. May, 50 Ind. 170; State v. Graff.
 
 90 THE GRAND JURY. 
 
 state, the territorial laws relating to the authority of the grand 
 jury to act and the powers conferred upon it which were in 
 force before its admission, remain in effect after its admission, 
 as to offences committed prior thereto. 245 
 
 After any challenges to the array or to the polls have been 
 disposed of, the foreman is then selected from the persons 
 summoned. 246 In no case should he be illiterate for his duties 
 are important and require knowledge and ability, but an in- 
 dictment will not be invalidated because the foreman could not 
 write his name. 247 
 
 In England, the United States Courts and in many of the 
 state courts, the foreman is appointed by the court. 248 In 
 some states he is selected by the grand jury from their num- 
 ber; 249 in others they are permitted to make selection subject 
 to the approval of the court, 250 or the court may direct them to 
 choose their foreman. 251 If he should afterward be excluded 
 from the grand jury by reason of disqualification or other 
 cause, the court may appoint his successor, 252 and if he is but 
 temporarily disqualified from serving by reason of sickness, 
 absence or the like, then a foreman pro tern, may be named, 253 
 who lawfully exercises all the powers, and must perform all the 
 duties, which devolve upon the regularly appointed foreman. 
 
 The appointment of the foreman should be noted upon the 
 minutes of the court and such entry is sufficient evidence of his 
 
 97 Iowa 568; State v. Wiltsey, 103 Iowa 54; In re Tillery, 43 Kans. 188; 
 Broyles v. State, 55 S. W. 966. CONTRA Clark v. U. S., 19 App. D. C 295. 
 
 245 State v. Rock, 57 Pac. 532. 
 
 246 In State v. Texada, 19 La. Ann. 436, it was held that the statute re- 
 lating to the drawing of grand jurors makes it essential that the foreman 
 should be selected from the whole venire. 
 
 247 State v. Tinney, 26 La. Ann. 460. 
 
 248 The court may appoint a talesman selected from the by-standers as 
 foreman of the grand jury: State v. Brandt, 41 Iowa 593. 
 
 249 i Whart. Cr. Law, Sec. 466; Revised Statutes Maine, Ch. 135; Sec. 4; 
 Revised Laws Massachusetts, Ch. 218, Sec. 7 ; Revised Statutes Florida, Sec. 
 2809. 
 
 250 Blackmore v. State, 8 S. W. 940. 
 
 251 Lung's Case, I Conn. 428. 
 
 252 U. S. v. Belvin, 46 Fed. Rep. 381. 
 
 253 Com. v. Noonan, 38 Leg. Int. (Pa.) 184.
 
 ORGANIZATION AND QUALIFICATIONS. 9 1 
 
 appointment ; 254 although this has been held not to be material 
 where the indictment was indorsed by the foreman and re- 
 turned into court. 255 
 
 If the record shows that one person has been appointed fore- 
 man and an indictment is returned signed by another as fore- 
 man, in the absence of proof to the contrary the court will 
 presume that the foreman named in the record has been regu- 
 larly discharged and the other appointed in his stead. 256 
 
 An indictment endorsed "a true bill" and returned upon the 
 authority of the whole grand jury was sustained although no 
 foreman had been appointed. 257 
 
 The clerk of the grand jury is usually one of that body, 
 who is selected by his fellow jurors after they have been sworn 
 and have retired to their room. In his absence or inability to 
 act, another juror may be named to act in his stead. 
 
 When the foreman of the grand jury has been appointed, 
 but one step more is required to complete its organization and 
 fit it to enter upon the performance of its duties, and that is the 
 administration of the oath. 258 The foreman is first sworn alone 
 and afterward the grand jurors, three at a time come forward 
 and take the oath, and such of them as will not take an oath are 
 allowed to affirm, 259 until all have either been sworn or af- 
 
 254 Byrd v. State, i How. (Miss.) 247; Woodsidcs v. State, 2 How. 
 (Miss.) 655- 
 
 255 People v. Roberts, 6 Calif. 214. And for a similar ruling see State 
 v. Gouge, 80 Tenn. 132, in the absence of plea in abatement and proof to 
 sustain the allegations thereof. 
 
 256 Mohler v. People, 24 111. 26; State v. Collins, 65 Tenn. 151. 
 
 257 Friar v. State, 3 How. (Miss.) 422; Peter v. State, Id. 433; And see 
 Yates v. People, 38 111. 527. 
 
 258 The grand jury is not complete and organized for business until 
 sworn: Ridling v. State, 56 Ga. 601. The oath may be administered 
 under the direction of the court by any officer authorized generally to ad- 
 minister oaths: Allen v. State, 77 111. 484. 
 
 259 Where an indictment is based on the affirmations of some cf the 
 grand jurors it will be quashed unless it appears they were legally en- 
 titled to serve on their mere affirmation: State r. Harris, 7 N. J. Law 
 361 ; and where found on the affirmation of Quakers it must appear that 
 they had conscientious scruples against taking an oath: State v. Fox, 9 
 N. J. Law 244.
 
 92 THE GRAND JURY. 
 
 firmed. 260 This was the common law method of administering 
 the oath and in some jurisdictions has now given place to the 
 custom of swearing the grand jurors as a body after the ad- 
 ministration of the oath to the foreman; in others, it is pro- 
 vided by statute that the full oath shall be administered to the 
 first two grand jurors whose names appear upon the list, and 
 then the balance of the panel shall be sworn with the short 
 form of oath. 260 * 
 
 The method of administering the oath has been discussed 
 by Chief Justice Johnson in the case of Brown vs. State 2 * 1 in 
 the following language : 
 
 "The form of oath required to be administered to the grand 
 jurors is of ancient origin, and it is necessary that it should be 
 observed, at least in substance; but the mode or order of ad- 
 ministering it is purely a matter of practice, and must of ne- 
 cessity be governed by circumstances It is con- 
 ceived to be entirely a matter of practice as to the number that 
 shall be sworn at a time, and that such practice is regulated 
 alone by considerations of convenience." 
 
 The panel need not be complete when the oath is adminis- 
 tered, but the full oath must be administered to those who are 
 added after part have been sworn. 262 
 
 If a form of oath be prescribed by statute, it should be sub- 
 stantially complied with. 263 
 
 The minutes of the court must show that the grand jury was 
 sworn ; 264 it is not sufficient that the indictment sets forth that 
 
 260 i Whart. Cr. Law, Sec. 466. 
 
 260* Revised Statutes Maine, Ch. 135, Sec. 2; Revised Laws Massachu- 
 setts, Ch. 218, Sec. 5; Wisconsin Statutes, Ch. 116, Sec 2547. 
 
 261 10 Ark. 613. 
 
 262 Brown v. State, 10 Ark. 607. And see State v. Furco, 51 La. Ann. 
 1082. 
 
 263 Ashburn v. State, 15 Ga. 246. CONTRA West v. State, 6 Tex. App. 
 
 485- 
 
 264 The minutes of the court are not the exclusive mode of proving 
 that the grand jury had been duly empanelled and sworn: State v. Stuart, 
 35 La. Ann. 1015.
 
 ORGANIZATION AND QUALIFICATIONS. 93 
 
 the grand jurors were duly sworn. 295 If regularly sworn 
 but this fact be inadvertently omitted from the record, the 
 defect may be cured and the record amended nunc pro tune. 299 
 The record must show that the foreman was sworn. 267 
 
 265 Abram v. State, 25 Miss. 589; Foster v. State, 31 Id. 421 ; Russell v. 
 State, 10 Tex. 288 ; Pierce v. State, 12 Id. 210. In People v. Rose, 52 Hun. 
 (N. Y.) 33, it appeared that the oath was informally administered, but it 
 was held that the facts thus shown did not impeach the recital of the in- 
 dictment that the oath was duly administered. 
 
 266 Baker v. State, 39 Ark. 180 ; State v. Folke, 2 La. Ann. 744. 
 
 267 Roe v. State, 2 So. 459.
 
 PART III 
 
 THE OATH POWERS AND DUTIES OF GRAND JURORS. 
 
 "The oath of a grand juryman," says Judge Wilson, 1 "is 
 the commission under which he acts." This statement, while 
 undoubtedly a correct exposition of the law as then understood, 
 is in our modern jurisprudence not sufficiently comprehensive, 
 and is subject to the qualification that, coupled with additional 
 statutory powers, and duties within the bounds prescribed by 
 statutes or as defined by the courts, it forms his commission. 
 
 The oath as administered to the foreman of the grand jury 1 * 
 is generally in the following language : "You, as foreman of 
 this inquest, for the body of the County of , do swear, 
 
 I Jas. Wilson's Works, Vol. II, p. 365. 
 
 i* No statutory form of oath has been adopted by the United States, 
 nor is any form of oath prescribed by statute in the states of New Jersey, 
 Pennsylvania, Maryland, Delaware, North Carolina, South Carolina, 
 Louisiana, and the Territory of Hawaii. 
 
 The oath adopted by statute in all other states and territories is given 
 as follows: 
 
 MAINE. Revised Statutes, Chapter 135, Sec. 2: "You, as grand jurors 
 
 of this county of , solemnly swear, that you will diligently inquire and 
 
 true presentment make of all matters and things given you in charge. The 
 state's counsel, your fellows and your own, you shall keep secret. You 
 shall present no man for envy, hatred or malice; nor leave any man un- 
 presented for love, fear, favor, affection or hope of reward; but you shall 
 present things truly as they come to your knowledge, according to the best 
 of your understanding. So help you God." 
 
 NEW HAMPSHIRE. Public Statutes, Chapter 253, Sec. 5, with slight 
 changes, prescribes the same oath as used in Maine. 
 
 VERMONT. Statutes, Chapter 233, Sec. 5418, prescribes with slight 
 changes the same oath as used in Maine, but concludes with the added 
 words, "According to the laws of this state.'' 
 
 MASSACHUSETTS. Revised Laws, Chapter 218, Sec. 5, prescribes with 
 slight changes the same oath as used in Maine. 
 
 RHODE ISLAND. General Laws, Chapter 227, Sec. 34, provides "diligently 
 
 94
 
 OATH POWERS AND DUTIES. 95 
 
 (or affirm) that you will diligently inquire, and true present- 
 ment make, of such articles, matters, and things as shall be 
 given you in charge or otherwise come to your knowledge, 
 touching the present service; the commonwealth's counsel, 
 
 inquire and true presentment make of all such crimes and misdemeanors 
 cognizable by this court as shall come to your knowledge," but other- 
 wise is the same as the oath used in Maine. 
 
 CONNECTICUT. General Statutes, Title 54, Chapter 281, Sec. 4795: "You 
 solemnly swear by the name of the ever living God, that you will diligently 
 inquire after, and due presentment make, of all breaches of law that shall 
 come to your knowledge, according to your charge ; the secrets of the cause, 
 your own, and your fellows', you will duly observe and keep ; you will pre- 
 sent no man from envy, hatred, or malice; neither will you leave any man 
 unpresented, from love, fear, or affection, or in hope of reward; but you 
 will present cases truly, as they come to your knowledge, according to the 
 best of your understanding, and according to law ; so help you God." 
 
 NEW YORK. Code Criminal Procedure, Sec. 245, with slight changes, 
 prescribes the same oath as used in Maine. 
 
 VIRGINIA. Code, Tit. 53, Chapter 195, Sec. 3980: "You shall diligently 
 inquire, and true presentment make, of all such matters as may be given 
 you in charge, or come to your knowledge, touching the present service. 
 You shall present no person through prejudice or ill will, nor leave any 
 unpresented through fear or favor, but in all your presentments you shall 
 present the truth, the whole truth, and nothing but the truth, so help you 
 God." 
 
 GEORGIA. Penal Code, 1895, Sec. 825, prescribes substantially the form 
 of oath contained in the text with this change, viz : "The state's counsel, 
 your fellows', and your own, you shall keep secret, unless called upon to 
 give evidence thereof in some court of law in this state." 
 
 FLORIDA. Revised Statutes, 1892, Sec. 2808, prescribe substantially the 
 same form of oath as used in Georgia. 
 
 TEXAS. Code Cr. Proc. 1897, Art. 404, substantially the same as the 
 Maine oath except in this, viz : "The state's counsel, your fellows', and 
 your own you shall keep secret, unless required to disclose the same in the 
 course of a judicial proceeding in which the truth or falsity of evidence 
 given in the grand jury room, in a criminal case, shall be under investiga- 
 tion.*' 
 
 ALABAMA. Code 1896, Sec. 5024, prescribes a form of oath similar to 
 the oath in the text, but makes particular reference to offences "committed 
 or triable within the county." 
 
 TENNESSEE. Code, Sec. 5833, prescribes substantially the same oath as 
 used in Alabama. 
 
 KENTUCKY. Statutes, Chapter 74, Sec. 2250: "Saving yourselves, you 
 do swear that you will diligently inquire of, and present all treasons, felon-
 
 96 THE GRAND JURY. 
 
 your fellows' and your own you shall keep secret; you shall 
 present no one for envy, hatred or malice; neither shall you 
 leave any one unpresented for fear, favor or affection, hope of 
 reward or gain, but shall present all things truly as they come 
 
 ies, misdemeanors, and breaches of the penal laws which shall have been 
 committed or done within the limits of the jurisdiction of this county, of 
 which you have knowledge or may receive information." 
 
 MISSISSIPPI. Code, Sec. 2372, prescribes substantially the form given 
 in the text. 
 
 WEST VIRGINIA. Code, Chapter, 157, Sec. 5, prescribes substantially 
 the same form of oath as used in Virginia. 
 
 OHIO. Revised Statutes, Sec. 7191, prescribes the form given in the 
 text, but beginning, "Saving yourself and fellow jurors;" preserving 
 secrecy "unless called on in a court of justice to make disclosures;" and 
 concluding, "you shall present the truth, the whole truth and nothing but 
 the truth, according to the best of your skill and understanding." 
 
 INDIANA. Code Crim. Proc., Sec. 1721 : "You and each of you, do 
 solemnly swear that you will diligently inquire, and true presentment make, 
 of all felonies and misdemeanors, committed or triable, within this county, 
 of which you shall have or can obtain legal evidence ; that you will present 
 no person through malice, hatred or ill-will, nor leave any unpresented 
 through fear, favor or affection, or for any reward, or the promise or hope 
 thereof, but in all your indictments you will present the truth, the whole 
 truth, and nothing but the truth ; and that you will not disclose any evi- 
 dence given or proceeding had before the grand jury, so help you God." 
 
 ILLINOIS. Statutes, Chapter 78, Sec. 18, prescribes substantially the form 
 set forth in the text. 
 
 MICHIGAN. Howell's Ann. Stat., Sec. 9491, prescribes substantially the 
 same form as used in Maine. 
 
 WISCONSIN. Statutes, Chapter 116, Sec. 2547, prescribes substantially 
 the same oath as used in Maine. 
 
 MISSOURI. Revised statutes 1899, Sec. 2489, prescribes a form substan- 
 tially the same as used in Indiana. 
 
 NEBRASKA. Compiled statutes, Sec. 8139, prescribes the same oath as 
 used in Ohio. 
 
 KANSAS. General Statutes 1897, Chapter 102; Sec. 97, prescribes sub- 
 stantially the same oath as used in Indiana. 
 
 MINNESOTA. General Statutes, Sec. 5641, prescribes substantially the 
 same oath as used in Indiana. 
 
 ARKANSAS. Statutes, Chapter 49, Sec. 2041, prescribes substantially the 
 same oath as used in Kentucky. 
 
 IDAHO. Penal Code, Sec. 5293: "You, as foreman of the grand jury, 
 will diligently inquire and true presentment make, of all public offences 
 against the State of Idaho, committed or triable, within this county, of
 
 OATH POWERS AND DUTIES. 97 
 
 to your knowledge, according to the best of your understand- 
 ing (so help you God.)" 
 
 This oath the balance of the grand jurors pledge themselves 
 to observe in these words: "The same oath (or affirmation) 
 which your foreman hath taken, on his part, you and every of 
 
 which you shall have or can obtain legal evidence. You will keep your 
 own counsel, and that of your fellows, and of the government, and will not, 
 except when required in the course of judicial proceedings, disclose the tes- 
 timony of any witness examined before you, nor anything which you or any 
 other grand juror may have said, nor the manner in which you or any 
 other grand juror may have voted on any matter before you. You will 
 present no person through malice, hatred, or ill will, nor leave any unpre- 
 sented through fear, favor or affection, or for any reward or the promise 
 or hope thereof; but in all your presentments you will present the truth, 
 the whole truth, and nothing but the truth, according to the best of your 
 skill and understanding, so help you God.'' 
 
 NEVADA. Compiled Statutes, Sec. 4158, prescribes a form of oath sub- 
 stantially the same as the oath used in Indiana. 
 
 COLORADO. Ann. Statutes, 1891, Chapter 73, Sec. 2617, prescribes substan- 
 tially the same oath as given in the text. 
 
 UTAH. Revised Statutes 1898, Sec. 4708, prescribes substantially the 
 same oath as used in Idaho. 
 
 CALIFORNIA. Penal Code, Sec. 903, prescribes substantially the same oath 
 as used in Idaho. 
 
 OREGON. Code, Section 1271, prescribes the following form of oath: 
 
 "You and each of you, as grand jurors for the county of , do solemnly 
 
 swear that you will diligently inquire into, and true presentment or indict- 
 ment make, of all crimes against this state, committed or triable within 
 this county, that shall come to your knowledge ; that the proceedings before 
 you, the counsel of the state, your own counsel, and that of your fellows, 
 you will keep secret ; that you will indict no person through envy, hatred, or 
 malice, nor leave any person not indicted through fear, favor, affection, or 
 hope of reward, but that you will indict, according to the truth, upon the 
 evidence before you, and the laws of this state ; so help you God." 
 
 WASHINGTON. Code, Section 6809 prescribes substantially the same oath 
 as used in Vermont. 
 
 WYOMING. Revised Statutes, Sect 5282: "You, as foreman of this 
 grand inquest, do solemnly swear (or affirm) that you will diligently in- 
 quire and true presentment make of all such matters and things as shall 
 be given you in charge, or otherwise come to your knowledge touching the 
 present service. The counsel of the state, your own and your fellows, you 
 shall keep secret unless called on in a court of justice to make disclosures. 
 You shall present no person through malice, hatred or ill will, nor shall 
 you leave any person unpresented through fear, favor or affection, or for
 
 98 THE GRAND JURY. 
 
 you, shall well and truly observe, on your part (so help you 
 God)." 
 
 The grand juror's oath is of great antiquity. When in the 
 time of Ethelred II. the twelve Thanes went out, they "swore 
 upon the relic that was given them in hand that they would 
 accuse no innocent man nor conceal any guilty one." 2 In 
 Bracton's time the oath and pledge bound the grand jurors to 
 
 any reward or hope thereof; but in all your presentments you shall present 
 the truth, the whole truth and nothing but the truth, according to the best 
 of your skill and understanding." 
 
 MONTANA. Penal Code, Sec. 1761 : "You, and each of you, do solemn- 
 ly swear (or affirm) that you will diligently inquire into and true present- 
 ment make, of all public offences against the laws of this state, committed or 
 triable by indictment in this county, of which you have or can obtain legal 
 evidence, you will present no one through hatred, malice or ill will, nor 
 leave any unpresented through fear, favor or affection, or for any reward, 
 or the promise or hope thereof; but in all your presentments you will pre- 
 sent the truth, the whole truth and nothing but the truth, according to 
 the best of your skill and understanding, so help you God." 
 
 NORTH DAKOTA. Revised Code 1895, Sec. 8004, prescribes substantially 
 the same oath as used in Idaho. 
 
 SOUTH DAKOTA. Revised Code Criminal Proc., Sec. 177, prescribes the 
 same oath as used in North Dakota. 
 
 IOWA. Code 1897, Sect. 5249: "You, as foreman of the grand jury, 
 shall diligently inquire and true presentment make of all public offences 
 against the people of this state, triable on indictment within this county, 
 of which you have or can obtain legal evidence ; you shall present no person 
 through malice, hatred or ill will, nor leave any unpresented through fear, 
 favor or affection, or for any reward or the promise or hope thereof, but 
 in all your presentments you shall present the truth, the whole truth and 
 nothing but the truth, according to the best of your skill and understand- 
 ing." 
 
 ARIZONA. Code Crim. Proc. Sec. 800, prescribes substantially the same 
 oath as used in Idaho. 
 
 NEW MEXICO. Compiled Laws 1897, Sec. 967, prescribes substantially 
 the same oath as used in Iowa. 
 
 INDIAN TERRITORY. Statutes Cr. Proc., Chapter 20, Sec. 1418: "Saving 
 yourselves and fellow jurors, you do swear that you will diligently inquire 
 of and present all treasons, felonies, misdemeanors and breaches of the 
 penal laws over which you have jurisdicton, of which you have knowledge 
 or may receive information." 
 
 OKLAHOMA. Revised Statutes 1903, Sec. 5329, prescribes substantially 
 the same oath as used in Idaho. 
 
 2 Wilkin's Leges Angliae Saxonicse 117.
 
 OATH POWERS AND DUTIES. 99 
 
 similar action. 3 But while the powers of the grand jury were 
 much broader than they are today, the oath of the grand juror 
 was narrower in its scope. "I will speak the truth concerning 
 this which ye shall ask me," 4 the grand juror swore, and if the 
 oath was his commission, then the limits of his powers were 
 defined by those things concerning which the king's justice 
 should ask. The oath proper, as usually referred to, in no 
 wise resembles the present day oath, but at the conclusion of 
 the reading of the capitula by the justices as to which the 
 grand jurors had sworn to speak the truth, they pledged them- 
 selves to do faithfully those things which the justices required 
 of them, to aggrieve no one through enmity, nor defer to any 
 one through love, and to conceal what they had heard. 5 This 
 was undoubtedly, in the nature of a supplemental oath and con- 
 tains the elements of the oath of the present day. 
 
 In the time of Britton 6 but one oath was taken, containing 
 all the elements of the two oaths taken in Bracton's time, and 
 more generally conforming to the oath now administered. In 
 a book printed in the time of Oliver Cromwell, 7 the oath taken 
 by the foreman of the grand jury is given as follows: "Ye 
 shall truly inquire, and due presentment make of all such 
 things as you are charged withall on the Queen's behalf, the 
 Queen's councell, your owne, and your fellowes, you shall 
 well and truly keepe ; and in all other things the truth present, 
 so help you God, and by the contents of this Booke." 
 
 It will be noted that this oath, like the one taken by the 
 grand jurors in Bracton's time, places a limitation upon the 
 power of the grand jury. They are charged to present "all 
 such things as you are charged withall on the Queen's behalf," 
 so that if their oath be regarded as their commission and de- 
 fining the bounds within which they could lawfully act, they 
 were prevented from making presentment of anything with 
 which they had not been charged. But in practice no such re- 
 
 3 Bracton-de legibus, (Sir Travers Twiss ed.) Vol. II, pp. 237-243. 
 
 4 Id. 
 
 5 Supra. 20, 21. 
 
 7 Book of Oaths (London, 1649) 206. 
 
 6 Britton (Legal Classic Series) p. 17.
 
 IOO THE GRAND JURY. 
 
 striction was placed upon them. They were regarded as an 
 arm of the government to bring wrong-doers to justice, and 
 in this respect they exercised the broadest and most unlimited 
 powers. 
 
 The view was taken in the early history of the Federal courts 
 that grand juries, on their own motion, institute all proceedings 
 whatsoever. 8 This view received strong support from Judge 
 Wilson, 9 at that time one of the justices of the United States 
 Supreme Court, who remarks that the grand jurors' oath "as- 
 signs no limits, except those marked by diligence itself, to the 
 course of his inquiries : why, then, should it be circumscribed 
 by more contracted boundaries? Shall diligent inquiry be 
 enjoined? And shall the means and opportunities of inquiry 
 be prohibited or restrained ?" 
 
 The same broad view of the right of the grand jury to act 
 was taken by Mr. Bradford, Attorney General of the United 
 States in 1794, in a letter to the secretary of state. 10 In this 
 he recognized the right of a prosecutor to personally appear 
 before the grand jury with his witnesses and make his com- 
 plaint directly to them without the necessity of it passing 
 through any intermediate tribunal. 11 This, however, is not 
 now the law in the Federal courts. 12 
 
 8 i Whart. Cr. Law, Sec. 453 (7th ed.). 
 
 9 Jas. Wilson's Works, Vol. II, p. 365. 
 
 10 Opinions of Attorneys General 22. And see i Whart. Cr. Law, Sec. 
 453 (7th ed.). 
 
 11 In State v. Stewart, 45 La. Ann. 1164, decided in 1893, the grand jury 
 were considering a bill against the defendant when a person, without be- 
 ing summoned appeared before the grand jury and gave his version of the 
 case. A true bill was returned and the defendant sought to quash the in- 
 dictment upon the ground that the indictment had been found at the in- 
 stance of this witness. The court overruled the motion. In his opinion on 
 appeal by the state on other grounds it was said by McEnery, J. : "It is 
 complained by the defendant that one S. A. Morgan, the leading state wit- 
 ness, went without summons or request before the grand jury and gave his 
 own version of the case against defendant, and instituted this prosecution. 
 The witness had the undoubted right to go before the grand jury volun- 
 tarily and disclose his knowledge of facts in the case. As a good citizen it 
 was his duty to do so. No one can be excused for withholding knowledge 
 of a crime from the public until he is summoned to give his testimony of
 
 OATH POWERS AND DUTIES. IOI 
 
 In Pennsylvania, a somewhat narrower view of the power 
 of the grand jury was taken. Judge Addison in his very 
 learned charges to grand juries says: "The matters which, 
 whether given in charge or of their own knowledge, are to be 
 presented by the grand jury, are all offences within the county. 
 To grand juries is committed the preservation of the peace of 
 the county, the care of bringing to light for examination, trial 
 and punishment, all violence, outrage, indecency and terror, 
 everything that may occasion danger, disturbance or dismay to 
 the citizens. Grand juries are watchmen, stationed by the laws 
 to survey the conduct of their fellow-citizens, and inquire 
 where and by whom public authority has been violated, or our 
 constitution or laws infringed." But the grand jury is not to 
 summon witnesses except under the supervision of the court. 13 
 This effectually limits them to such matters as are within their 
 own knowledge or may be given them in charge by the court 
 or by the district attorney. 
 
 The first duty imposed upon the grand jurors by their oath is 
 that they will "diligently inquire and true presentment make." 
 Judge Addison, in his charge to the grand jury at September 
 Sessions, 1792, said, "the accurate interpretation, in its true 
 extent, of the diligent inquiry and true presentment which the 
 grand jury is sworn to make, has not been precisely agreed on 
 by learned men." 14 Four years earlier, however, these words 
 had received a judicial interpretation in Pennsylvania, 15 in a 
 case pending before the grand jury. A grand juror asked 
 what was meant by the words "diligently inquire," to which 
 Chief Justice McKean replied, "The expression meant, dili- 
 gently to inquire into the circumstances of the charge, the 
 credibility of the witnesses who support it, and from the 
 
 its commission." As to this decision it is sufficient to say that it is con- 
 trary to the law as laid down by the courts of every other state. 
 
 12 Mr. Justice Field's Charge to Grand Jury, 30 Fed. Cas. 992. And see 
 Welch v. State, 68 Miss. 341 ; Wilson v. State, 70 Miss. 595 ; McCullough v. 
 Com. 67 Pa. 30. 
 
 13 Addison App. 47 ; Mr. Justice Field's Charge to Grand Jury, 30 Fed. 
 Cas. 992. 
 
 14 Addison, App. 38. 
 
 15 Res. v. Shaffer, I Dall. 236.
 
 IO2 THE GRAND JURY. 
 
 whole, to judge whether the person accused ought to be put 
 upon his trial. For (he added) though it would be improper 
 to determine the merits of the cause, it is incumbent upon the 
 grand jury to satisfy their minds, by a diligent inquiry, that 
 there is a probable ground for the accusation, before they give 
 it their authority, and call upon the defendant to make a pub- 
 lic defense." 
 
 In his charge to the grand jury in the Circuit Court for the 
 District of Maryland in 1836, Chief Justice Taney, of the 
 United States Supreme Court, said, 16 "But in our desire to 
 bring the guilty to punishment, we must still take care to 
 guard the innocent from injury; and every one is deemed to 
 be innocent until the contrary appears by sufficient legal proof. 
 You will, therefore, in every case that may come before you, 
 carefully weigh the testimony, and present no one, unless in 
 your deliberate judgment, the evidence before you is sufficient 
 in the absence of any other proof, to justify the conviction of 
 the party accused." 
 
 The difference in the extent of the powers of grand jurors 
 in the Federal courts and in the courts of Pennsylvania and 
 other states is reflected in the wider range which the Federal 
 judges give to this clause of the oath. The construction placed 
 upon these words in the Federal courts is probably most fully 
 and clearly expressed by Chief Justice Chase 17 in the follow- 
 ing language: "You must not be satisfied by acting upon 
 such cases only as may be brought before you by the district 
 attorney, or by members of your body to whom knowledge of 
 particular offences may have come. Your authority and your 
 duty go much further. You may and you should, summon 
 before you, officers of the government, and others whom you 
 may have reason to believe possess information proper for your 
 action, and examine them fully." 
 
 But in making diligent inquiry neither the Federal nor the 
 state grand jury is wholly unrestrained. They may only in- 
 quire and present within the extent of their powers as will be 
 
 16 30 Fed. Cas. 998. 
 
 17 Charge to Grand Jury, 30 Fed. Cas. 980.
 
 OATH POWERS AND DUTIES. IOJ 
 
 hereafter treated of, 18 and according to the well established 
 principles of law. A grand jury may only inquire into 
 offences occurring within its territorial jurisdiction, 18 and not 
 barred by the statute of limitations ; 20 but within such jurisdic- 
 tion they may investigate into every crime known to the law, 21 
 and which comes before them in one of the methods provided 
 by law. They may investigate a crime committed after they 
 are empaneled. 22 
 
 In making their inquiries, the grand jurors are not per- 
 mitted to summon witnesses for the defence either upon their 
 own motion 23 or at the request of the defendant or his coun- 
 sel, 24 nor will the court allow the defendant's witnesses to go 
 before the grand jury, 25 either with or without the consent of 
 the district attorney; 26 nor may any witnesses appear before 
 or send any communication to them, pertaining to a matter 
 then pending before the grand jury, except upon the previous 
 order of the court. 27 In Connecticut, the extraordinary 
 method is in force of allowing the defendant to be present dur- 
 ing the examination of witnesses before the grand jury, 28 but 
 his counsel will not be admitted to their deliberations. 29 
 
 If the grand jurors are not satisfied with the evidence pre- 
 
 18 Post 106 et. seq. 
 
 19 People v. Beatty, 14 Calif. 566; Ward v. State, 2 Mo. 120; State v. 
 Overstreet, 128 Mo. 470; People v. Green, i Utah n ; Beal v. State, 15 Ind. 
 378; Rutzell v. State, 15 Ark. 67. 
 
 20 People v. Beatty, 14 Calif. 566; State v. Overstreet, 128 Mo. 470. 
 
 21 Territory v. Corbett, 3 Mont. 50. 
 
 22 People v. Beatty, 14 Calif. 566; Com. v. Gee, 60 Mass. 174; Allen r. 
 State, 5 Wis. 329. But see Stark v. Bindley, 52 N. E. 804. 
 
 23 i Chitty Cr. Law 317; U. S. v. Terry, 39 Fed. Rep. 355. 
 
 24 Res. v. Shaffer, i Dall. 236 ; U. S. v. Lawrence, 26 Fed. Cas. 886. 
 
 25 U. S. v. Palmer, 27 Fed. Cas. 410; People v. Goldenson, 76 Calif. 328. 
 But see Lung's Case, i Conn. 428; In re Morse, 87 N. Y. Sup. 721. 
 
 26 U. S. v. Blodgett, 30 Fed. Cas. 1157. In U. S. v. White, 28 Fed. Cas. 
 588, the court intimated that witnesses for the defence may be sent to th 
 grand jury with the consent of the district attorney. 
 
 27 Mr. Justice Field's Charge to the Grand Jury, 30 Fed. Cas. 992. 
 
 28 State v. Fasset, 16 Conn. 457. And see State v. Walcott, 21 Conn. 272 ; 
 State v. Hamlin, 47 Conn. 95. 
 
 29 Lung's Case, i Conn. 428.
 
 IO4 THE GRAND JURY. 
 
 sented by such witnesses as they have heard, they may ask 
 that additional testimony be submitted to them. 30 This re- 
 quest should be made to the court, who has the sole power of 
 ordering that process issue to produce any additional evidence 
 before the grand jury; 31 but in the United States courts it is 
 sufficient if application be made to the district attorney, who 
 may direct that process issue. 32 Ordinarily the grand jury 
 cannot on their own motion summon witnesses to appear be- 
 fore them, 33 for they usually have neither the right to issue 
 the necessary process to command their attendance nor the 
 power to punish if witnesses refuse to appear. 
 
 In Tennessee the grand jury is vested by statute with broad 
 inquisitorial powers in certain cases, and in such instances they 
 may send for witnesses without an order of court. 34 
 
 In Missouri 35 and Maryland 36 a grand jury is vested with 
 similar authority. But the powers conferred on grand juries 
 by such statutes being in derogation of the common law, can- 
 not be extended beyond the express provisions of the statute 
 itself. 37 
 
 30 i Chitty Cr. Law 317; Dickinson's Quarter Sessions, (5th ed.) 156- 
 158. 
 
 31 The process is issued by the clerk of the court: O'Hair v. People, 
 32 111. App. 277; Baldwin v.. State, 126 Ind. 24. 
 
 32 And see O'Hair v. People, 32 111. App. 277; I Whart Cr. Law Sec. 
 490. But see contra Warner v. State 81 Tenn. 52. 
 
 33 In re Lester, 77 Ga. 143. 
 
 34 State v. Smith, 19 Tenn. 99 ; Deshazo v. State, 23 Tenn. 275 ; State v. 
 Parrish, 27 Tenn. 80; Doebler v. State, 31 Tenn. 473; Robeson v. State, 50 
 Tenn. 266; State v. Adams, 70 Tenn. 647; State v. Estes, 71 Tenn. 168; 
 State v. Barnes, 73 Tenn, 398; State v. Staley, 71 Tenn. 565; Glenn v. State, 
 31 Tenn. 19; Garret v. State, 17 Tenn. 389. But see State v. Lee, 87 Tenn. 
 114; State v. Lewis, Id. 119, for instances, where the inquisitorial power was 
 illegally exercised. Where the grand jury is not specially vested with this 
 authority, the general rule in Tennessee appears to be that the witness 
 should be summoned to appear before the court to give evidence to the 
 grand jury: State v. Butler, 16 Tenn. 83. 
 
 35 Ward v. State, 2 Mo. 120. 
 
 36 Blaney v. State, 74 Md. 153. This authority is not based upon any 
 statute of Maryland. 
 
 37 Deshazo v. State, 23 Tenn. 275 ; Harrison v. State, 44 Tenn. 195 ; 
 Robeson v. State. 50 Tenn. 266 ; State v. Adams, 70 Tenn. 647.
 
 OATH POWERS AND DUTIES. 1 05 
 
 When they have heard all the evidence which can be pro- 
 duced, they are then prepared to make their presentment. It 
 was formerly thought in England that the grand jury should 
 present "in case there be probable evidence," 38 but this rule is 
 now altered. 39 In the Federal courts 40 the rule there prevail- 
 ing is thus stated by Mr. Justice Field, 41 "To justify the finding 
 of an indictment the grand jury must believe that the accused 
 is guilty. They should be convinced that the evidence before 
 them, unexplained and uncontradicted, would warrant a con- 
 viction by a petit jury." 42 This is now the law in Pennsyl- 
 vania, 43 although formerly the English rule obtained. 44 The 
 same rule is recognized in New York, 45 Massachusetts 48 and 
 Virginia, 47 and has been adopted in California by statute. 48 
 
 In making diligent inquiry and true presentment, the grand 
 jury is restricted to "such articles, matters and things as shall 
 be given you in charge or otherwise come to your knowledge, 
 touching the present service." 49 This clause of the oath is the 
 
 38 i Chitty Cr. Law 317; 2 Hale PI. C. 157; i Whart. Cr. Law, Sec. 492. 
 And see Co. Inst. Vol. II, p. 384. 
 
 39 i Chitty Cr. Law 317. 
 
 40 In re Grand Jury, 62 Fed. Rep. 840. 
 
 41 Charge to Grand Jury, 30 Fed. Cas. 992; and see Chief Justice 
 Shaw's Charge to Grand Jury, 8 Am. Jurist 218. 
 
 42 In re Grand Jury, 62 Fed. Rep. 840; People v. Hyler, 2 Parker Cr. 
 R. (N. Y.) 570. And see 4 Bl. Com. 303; Sir John Hawles, 4 State Trials 
 183 ; Lord Somers on Grand Juries, etc. In People v. Lindenborn, 52 N. 
 Y. Sup. 101, it was held that the presumption of innocence must be over- 
 come before an indictment can legally be found. In Com. v. Dittus, 17 
 Lane. Law Rev. (Pa.) 127, although three respectable witnesses testified to 
 the facts, the grand jury ignored the bill. Judge Landis criticised their 
 action as being equivalent to the trial of the cause. As they, however, 
 are the exclusive judges of the credibility of the witnesses, this criticism 
 would seem unwarranted. 
 
 43 i Whart. Cr. Law Sec. 491 ; 7 Smith's Laws 687 ; I Hopkinson's 
 Works, 194; James Wilson's Works, Vol. II, p. 365. 
 
 44 Res. v. Shaffer, i Dall. 236; Add. App. 39. 
 
 45 People v. Hyler, 2 Parker, Cr. R. (N. Y.) 570. 
 
 46 Davis Precedents of Indictments, 25. 
 
 47 Davis Criminal Law in Va. 426. 
 
 48 Penal Code, Sec. 921, People v. Tinder, 19 Calif. 539. 
 
 49 Supra. 95.
 
 106 THE GRAND JURY. 
 
 grant of power to the grand jury, but the extent of the powers 
 under this grant have not received a like construction in the 
 various jurisdictions. It has been the tendency in Pennsyl- 
 vania 50 to restrict this power within the narrowest lines, while 
 the Federal courts, like the English courts, permit a very wide 
 exercise of it. The first view is set forth in a celebrated opin- 
 ion rendered by Judge King 51 in 1845. After describing how 
 the ordinary mode of instituting prosecutions is by arrest on a 
 warrant based upon an affidavit, with a subsequent binding 
 over of the defendant or holding him in bail to answer at court, 
 and detailing the subsequent steps whereby a bill charging the 
 offence is submitted by the district attorney to the grand jury, 
 and which is either returned a true bill or ignored, he then de- 
 scribes the extraordinary modes of criminal procedure which 
 may be pursued, in the following words : 
 
 "The first of these is, where criminal courts of their own 
 motion call the attention of grand juries to and direct the in- 
 vestigation of matters of general public import, which, from 
 their nature and operation in the entire community, justify 
 such intervention. The action of the court on such occasions, 
 rather bear on things than persons; the object being the sup- 
 pression of general and public evils, affecting in their in- 
 fluence and operation communities rather than individuals 
 and therefore, more properly the subject of general than spec- 
 ial complaint. Such as great riots that shake the social fabric, 
 carrying terror and dismay among the citizens; general pub- 
 lic nuisances affecting the public health and comfort; multi- 
 plied and flagrant vices tending to debauch and corrupt the 
 public morals, and the like. In such cases the courts may prop- 
 erly in aid of inquiries directed by them, summon, swear, and 
 send before the grand jury, such witnesses as they may deem 
 necessary to a full investigation of the evils intimated, in order 
 to enable the grand jury to present the offence and the offend- 
 ers. But this course is never adopted in case of ordinary 
 crimes, charged against individuals. Because it would in- 
 volve, to a certain extent, the expression of opinion by antici- 
 
 50 McCullough v. Com. 67 Pa. 30. 
 
 51 Case of Lloyd and Carpenter, 3 Clark (Pa.) 188.
 
 OATH POWERS AND DUTIES. 
 
 pation, on facts subsequently to come before the courts for di- 
 rect judgment; and because such cases present none of those 
 urgent necessities which authorize a departure from the ordin- 
 ary course of justice. In directing any of these investiga- 
 tions, the court act under their official responsibilities, and 
 must answer for any step taken, not justified by the proper 
 exercise of a sound judicial discretion. 
 
 "Another instance of extraordinary proceedings, is where 
 the attorney general ex-officio prefers an indictment before a 
 grand jury, without a previous binding over or commitment 
 of the accused. That this can be lawfully done is undoubted. 
 And there are occasions where such an exercise of official au- 
 thority would be just and necessary, such as where the accused 
 has fled the justice of the state, and an indictment found, may 
 be required previous to demanding him from a neighboring 
 state, or where a less prompt mode of proceeding might lead 
 to the escape of a public offender. In these, however, and in 
 all other cases, where this extraordinary authority is exercised 
 by an attorney general, the citizen affected by it is not with- 
 out his guarantees. Besides, the intelligence, integrity, and 
 independence, which always must be presumed to accompany 
 high public trust, the accused unjustly grieved by such a pro- 
 cedure, has the official responsibility of the officer to look to. If 
 an attorney general should employ oppressively, this high 
 power, given to him only to be used when positive emergencies 
 or the special nature of the case requires its exercise, he might 
 be impeached and removed from office for such an abuse. The 
 court, too, whose process and power is so misapplied, should 
 certainly vindicate itself, by protecting the citizen. In prac- 
 tice, however, the law officer of the commonwealth always 
 exercises this power cautiously; generally under the direc- 
 tion of the court, and never unless convinced that the general 
 public good demands it. 
 
 "The third and last of the extraordinary modes of criminal 
 procedure known to our penal code, is that which is origin- 
 ated by the presentment of a grand jury. A presentment, 
 properly speaking, is the notice taken by a grand jury of any 
 offence from their own knowledge or observation, without a
 
 108 THE GRAND JURY. 
 
 bill of indictment being laid before them at the suit of the 
 commonwealth. Like an indictment, however, it must be the 
 act of the whole jury, not less than twelve concurring on it. 
 It is, in fact, as much a criminal accusation as an indictment, 
 except that it emanates from their own knowledge, and not 
 from the public accuser, and except that it wants technical 
 form. It is regarded as instructions for an indictment. That 
 a grand jury may adopt such a course of procedure, without a 
 previous preliminary hearing of the accused, is not to be ques- 
 tioned by this court." 
 
 The other view was expressed in an equally able manner by 
 Mr. Justice Field 52 in 1872. "Your oath requires you to 
 diligently inquire and true presentment make, 'of such arti- 
 cles, matters and things as shall be given you in charge, or 
 otherwise come to your knowledge touching the present ser- 
 vice.' 
 
 "The first designation of subjects of inquiry are those which 
 shall be given you in charge; this means those matters which 
 shall be called to your attention by the court, or submitted to 
 your consideration by the district attorney. The second desig- 
 nation of subjects of inquiry are those which shall otherwise 
 come to your knowledge touching the present service; this 
 means those matters within the sphere of and relating to your 
 duties which shall come to your knowledge, other than those 
 to which your attention has been called by the court or sub- 
 mitted to your consideration by the district attorney. 
 
 "But how come to your knowledge? 
 
 "Not by rumors and reports, 53 but by knowledge acquired 
 from the evidence before you, or from your own observations. 
 Whilst you are inquiring as to one offence, another and differ- 
 ent offence may be proved, or witnesses before you may, in tes- 
 tifying, commit the crime of perjury. 
 
 "Some of you, also, may have personal knowledge of the 
 
 52 Charge to Grand Jury, 30 Fed. Cas. 992. 
 
 53 It is of interest to note the change in the law as thus laid down by 
 Mr. Justice Field from that prevailing in the time of Glanville and Brae- 
 ton. Then the accusing body was generally obliged to present upon rumo* 
 alone. See Supra, part i, generally.
 
 OATH POWERS AND DUTIES. ICQ 
 
 commission of a public offence against the laws of the United 
 States, or of facts which tend to show that such an offence has 
 been committed, or possibly attempts may be made to influence 
 corruptly or improperly your action as grand jurors. If you 
 are personally possessed of such knowledge, you should dis- 
 close it to your associates ; and if any attempts to influence your 
 action corruptly or improperly are made, you should inform 
 them of it also, and they will act upon the information thus 
 communicated as if presented to them in the first instance by 
 the district attorney. 
 
 "But unless knowledge is acquired in one of these ways, it 
 cannot be considered as the basis for any action on your part. 
 
 "We, therefore, instruct you that your investigations are to 
 be limited : 
 
 "First. To such matters as may be called to your attention 
 by the court : or 
 
 "Second. May be submitted to your consideration by the 
 district attorney : or 
 
 "Third. May come to your knowledge in the course of 
 your investigations into the matters brought before you, or 
 from your own observations: or 
 
 "Fourth. May come to your knowledge from the dis- 
 closures of your associates. 
 
 "You will not allow private prosecutors to intrude them- 
 selves into your presence, and present accusations. Generally 
 such parties are actuated by private enmity, and seek merely 
 the gratification of their personal malice. 
 
 "If they possess any information justifying the accusation 
 of the person against whom they complain, they should impart 
 it to the district attorney, who will seldom fail to act in a 
 proper case. But if the district attorney should refuse to act, 
 they can make their complaint to a committing magistrate, be- 
 fore whom the matter can be investigated, and if sufficient evi- 
 dence be produced of the commission of a public offence by 
 the accused, he can be held to bail to answer to the action of 
 the grand jury." 
 
 It will consequently be seen from the opinions of Judge 
 King and Mr. Justice Field that the powers of the grand jury
 
 110 THE GRAND JURY. 
 
 in Pennsylvania and the Federal courts coincide in these par- 
 ticulars : 
 
 1. That they may present such matters as are given them 
 in charge by the district attorney, by means of bills submitted 
 to them based upon the return of the committing magistrate, 
 or with the investigation of which they are specially charged 
 by the court. 54 
 
 2. That they may present such matters as are within the 
 actual knowledge of one of the grand jurors, the facts of 
 which are communicated by him to his fellow jurors. 
 
 3. That they may present where the district attorney, upon 
 his official responsibility, submits a bill to the grand jury with- 
 out a previous commitment or binding over, in cases where 
 the defendant is a fugitive from justice, and when emergencies 
 may require that he should act promptly. 
 
 But the Federal grand juries have the additional power of 
 presenting such offences as come to their knowledge while 
 they are investigating other matters, through the testimony of 
 the witnesses appearing before them. 55 This method of pro- 
 cedure has been held to be unlawful by the Supreme Court of 
 Pennsylvania. 56 
 
 The right of the district attorney to prefer a bill of indict- 
 ment to the grand jury upon his official responsibility and 
 without leave of court is now firmly established both in the 
 Federal courts 57 and in the courts of Pennsylvania, 58 but this 
 
 54 For instances where the grand jury has been directed to investigate 
 into matters specially submitted to them by the court, see Hartranft's Ap- 
 peal, 85 Pa. 433 ; Com. v. Green, 126 Pa. 531 ; Com. z>. Kurd, 177 Pa. 481 ; 
 Charge to Grand Jury, 5 Dist. Rep. (Pa.) 130; Com. v. Kulp, 17 Pa. C. C. 
 Rep. 561 ; Bucks County Grand Jury, 24 Pa. C. C. Rep. 162 ; Com. v. Wil- 
 son, 2 Chester Co. Rep. (Pa.) 164. 
 
 55 Supra. 108, 109. 
 
 56 Com. v. Green, 126 Pa. 531; Com. v. McComb, 157 Pa. 611. And see 
 State v. Love, 4 Humph. (Tenn.) 255; Harrison v. State, 4 Cold (Tenn.) 
 195- 
 
 57 U. S. v. Fuers, 25 Fed. Cas. 1223; U. S. v. Thompkins, 28 Fed. Cas. 
 89. 
 
 58 Rowand v. Com. 82 Pa. 405; Com. v. Clemmer, 190 Pa. 202; 
 Com. v. Beldham, 15 Pa. Superior Ct. 33; Com. v. Brown, 23 
 Pa. Superior Ct. 470; Com. v. Delemater, 2 Dist. Rep. (Pa.) 562; Com. 
 v. Whitaker, 25 Pa. C. C. 42; Com. v. Reynolds, 2 Kulp (Pa.) 345;
 
 OATH POWERS AND DUTIES. Ill 
 
 right has invariably been stoutly opposed by defendants, and 
 the exercise of it may well be the subject of criticism in view 
 of the very weak foundation upon which the decisions have 
 been made to rest. The inherent weakness of it is perhaps 
 best observed in the fact that the district attorney rarely exer- 
 cises the right without first obtaining leave of court, 69 and 
 those decisions which are most frequently quoted as sustain- 
 ing the right invariably contain the proviso, "with leave of 
 court" 
 
 Treating of the right of the attorney general to thus act 
 upon his official responsibility without leave of court, Judge 
 King says, 60 "that this can be lawfully done is undoubted," and 
 his ability and learning make his opinion of great weight. 
 But he cites no authority in support of the doctrine which he 
 states so positively, and in the case of Commonwealth v. 
 English, 61 Judge Pratt, while he cites and follows the doctrine 
 thus laid down, admits that the opinion of Judge King upon 
 this point may be considered obiter dictum." In the cases of 
 McCullough v. Commonwealth, 62 and Brown v. Common- 
 wealth, 63 while the right of the district attorney, with the leave 
 of court, to send in bills of indictment to the grand jury with- 
 out any prior prosecution has been distinctly affirmed, the right 
 
 Com. v. Shupp, 6 Kulp (Pa.) 430; Com. v. Schall, 6 York Leg. Rec. 24; 
 Com. v. English n Phila. (Pa.) 439; Com. v. Simons, 6 Phila. (Pa.) 167; 
 Com. v. Wetherold, 2 Clark (Pa.) 476. Case of Lloyd and Carpenter, 3 
 Clark (Pa.) 188; Com. v. Green, 126 Pa. 531 : In this latter case the court 
 granted leave to the district attorney to lay an indictment before the grand 
 jury. In Com. v. Jadwin, 2 Law T. (N. S.) 13, a defendant was discharged 
 at the preliminary hearing by the magistrate and the district attorney 
 subsequently laid a bill before the grand jury upon his official responsibil- 
 ity which was returned a true bill. The court quashed the indictment. 
 See also Com. v. Moister, 3 Pa. C. C. 539; Com. v. Shubel, 4 Pa. C. C. 12. 
 
 59 Com. v. Sheppard, 20 Pa. Superior Ct. 417. 
 
 60 Case of Lloyd and Carpenter, 3 Clark (Pa.) 188 . 
 
 61 ii Phila. (Pa.) 439. 
 
 62 67 Pa. 30. In this case the indictment was based upon the return of 
 a constable. In Com. v. Pfaff, 5 Pa. Dist Rep. 59, it was held that an in- 
 dictment based on a constable's return should not be sent to the grand 
 jury without special leave of court. 
 
 63 76 Pa. 319.
 
 112 THE GRAND JURY. 
 
 of this officer to do so without leave of court is nowhere 
 shown. 
 
 In the case of Rowand v. Commonwealth, 64 the assignments 
 of error unfortunately failed to raise this point, and raised 
 only questions which were then well settled. The grand jury 
 in this case ignored the bill and the district attorney without 
 leave of court sent a new bill to a subsequent grand jury, which 
 returned a true bill. Judge White in his opinion in the court 
 below upon a motion to quash the indictment said, "I doubt 
 not the power of the court, on cause shown upon affidavit, to 
 direct a bill to be sent back to be reconsidered by the same or 
 a subsequent grand jury. But in the absence of such direc- 
 tion by the court, I doubt the legality, and very much condemn 
 the practice of sending up the same bill (or one just like it, 
 based on the same information) to a subsequent grand jury, 
 after it has been ignored by one grand jury. Ordinarily an 
 ignoramus should be the end of the case. If I were acting 
 on my own judgment I would quash these, but as I have been 
 informed that the course pursued in these cases has been al- 
 ways sustained by this court, I shall conform to that practice 
 and refuse these motions" 
 
 Mr. Justice Woodward, who delivered the opinion of the 
 Supreme Court, said, "But principles have been long settled 
 which require that the action of the district attorney in these 
 cases shall be sustained," and he rests this statement upon the 
 dictum of Judge King. He further says, "While, however, 
 the possession of this exceptional power by prosecuting officers 
 cannot be denied, its employment can only be justified by some 
 pressing and adequate necessity, when exercised without such 
 necessity it is the duty of the Quarter Sessions to set the offi- 
 cer's act aside." 
 
 If, as the learned judge says, the possession of this excep- 
 tional power by prosecuting officers cannot be denied, then 
 surely it must rest upon some clearly defined authority. But 
 he relies upon a statement for which the author thereof, cites 
 
 64 82 Pa. 405. In New York under Code Cr. Proc., Sec. 270, a bill once 
 ignored by the grand jury cannot again be resubmitted without leave of 
 court: People v. Warren, 109 N. Y. 615.
 
 OATH POWERS AND DUTIES. 113 
 
 no authority. This question not having been raised by the as- 
 signments of error, the opinion of the court upon this point 
 must consequently be regarded as obiter dictum. 
 
 This question was directly involved in a case before Judge 
 Pratt, 85 who states, "After the most careful examination of 
 the text books and reports, I have been able to find but few ad- 
 judicated cases on the subject, and no one case reported where 
 this authority has been conceded to the attorney general or to 
 the district attorney, without some qualification; only, per- 
 haps in the case of Brown v. Commonwealth, 26 P. F. Smith, 
 319." He, however, attempts to show that the powers now 
 claimed for the district attorney are those which were former- 
 ly possessed by the attorney general and were the same as 
 those which Blackstone states 66 were possessed by the attorney 
 general for the crown. 
 
 An examination of the authority cited shows that the attor- 
 ney general only exercised this authority by informations filed 
 in the Court of King's Bench for "such enormous misdemean- 
 ors as peculiarly tend to disturb or endanger his government, 
 or to molest or affront him in the regular discharge of his (the 
 king's) royal functions." 87 But neither Blackstone nor any 
 of the other English authorities concede the right of the at- 
 torney general, ex-officio, to lay before the grand jury an in- 
 dictment. The right of the attorney general or the district 
 attorney to exercise this power of proceeding by information 
 is swept away by the Constitution of Pennsylvania, which pro- 
 vides that no information shall be filed for an indictable of- 
 fence. 88 
 
 That he may exercise the same power over indictments that 
 at common law he exercised with regard to informations can- 
 not be conceded, when by constitutional provisions he can no 
 longer exercise such power in filing informations and it never 
 existed in connection with indictments and has not been ex- 
 tended to them by statute. In the absence of clear evidence of 
 
 65 Com. v. English, n Phila. (Pa.) 439. 
 
 66 4 Bl. Com. 309. 
 
 67 U. S. v. Shepard, 27 Fed. Cas. 1056. 
 
 68 Art. I, Sec. 10. 
 
 8
 
 114 THE GRAND JURY. 
 
 this authority to so act, it would appear improper to permit the 
 exercise of this high power except by leave of court. 
 
 In Commonwealth v. Sheppard, 69 Rice, P. J., said: "In 
 such cases, that is, where the indictment is sent up by the dis- 
 trict attorney without first obtaining the leave of the court, the 
 discretion of the court may be invoked, and is exercisable upon 
 motion to quash. If the court refuses to quash, this, ordin- 
 arily, is equivalent to giving its sanction. If the court sus- 
 tains the motion to quash, this is tantamount to refusing its 
 approval of the action of the district attorney." 
 
 Where the district attorney first obtains leave of court to 
 send a bill of indictment to the grand jury without previous 
 arrest and binding over, the court will overrule a motion to 
 quash the indictment. 70 When, however, the initial step in 
 the prosecution is the laying of the district attorney's bill be- 
 fore the grand jury, it is necessary that it should possess some 
 special earmark by which it is to be known as his official act 
 other than merely affixing his signature thereto. 71 
 
 The courts, having thus sustained the right of the district 
 attorney to send a bill of indictment to the grand jury on his 
 official responsibility alone, have had no hesitation in support- 
 ing the right of the district attorney to send to the grand jury 
 indictments charging offences which were not included in the 
 original informations made before the magistrate, and his 
 right to so do may now be regarded as settled. 72 
 
 69 20 Pa. Superior Ct. 417. And see Com. v. Brown, 23 Pa. Superior 
 Ct. 470. 
 
 70 Com. v. Leigh, 38 L. I. (Pa.) 184; Com. v. Taylor, 12 Pa. C. C. Rep. 
 326 ; Com. v. Fehr, 2 Northampton Co. Rep. 275 ; Davidson v. Com. 5 Cen. 
 Rep. 484; Com. v. Bredin, 165 Pa. 224. In Com. v. New Bethlehem Bor- 
 ough, 15 Pa. Superior Ct. 158, Rice, P. J., says: "It is undoubtedly true 
 that the court has discretionary and revisory powers over what are called 
 district attorney bills, and where the sanction of the court to sending up 
 such a bill has been obtained by deception, whether wilful or unintentional, 
 it may revise its action even after the return of an indictment." 
 
 71 Com. v. Griscom, 36 Pitts. L. J. (Pa.) 332. But see Com. v. Brown, 
 23 Pa. Superior Ct. 470. 
 
 72 Com. v. Simons, 6 Phila. (Pa.) 167; Harrison v. Com. 123 Pa. 508. 
 See Com. v. Hughes, 11 Pa. Co. Ct. Rep. 470, where an indictment was
 
 OATH POWERS AND DUTIES. 115 
 
 In the Federal courts a defendant may be proceeded against 
 by information in cases where the offence is not "a capital or 
 otherwise infamous crime," 73 but it has been held that the right 
 to file an information is not a prerogative of the prosecutor's 
 office and the district attorney must first obtain leave of 
 court. 74 The court may direct before granting leave that the 
 accused be brought into court to show cause why the informa- 
 tion should not be filed against him. 76 This right to proceed 
 by information is in addition to the right to lay an indictment 
 before the grand jury and may be and sometimes is used when 
 the grand jury has ignored a bill. 78 The provisions of the 
 United States Revised Statutes 77 authorizing the prosecution 
 of certain offences either by indictment or by information do 
 not preclude the prosecution by information of such other 
 offences as may be so prosecuted without violating the consti- 
 tution and United States statutes. 78 
 
 In some of the states provision has likewise been made for 
 the prosecution of offences other than capital or other infa- 
 mous crimes by information, while in other states even capi- 
 tal crimes may be prosecuted by information. 
 
 In the exercise of their power, the grand jury has frequently 
 acted as the defender of the liberty of the press in attempted 
 prosecutions for libel ; and have stood as a shield between cour- 
 ageous editors who have boldly endeavored to expose official 
 wrong doing, and the persons who have been stung into action 
 by the exposures thus made. Two instances, however, have 
 occurred in Pennsylvania where the public press has made 
 
 quashed upon the ground that it was for a different offense than that set 
 out in the affidavit upon which the prosecution was based. 
 
 73 Cons. U. S. Amend. V. 
 
 74 U. S. v. Smith, 40 Fed. Rep. 755 ; and see Walker v. People, 22 Colo. 
 415 ; State v. De Serrant, 33 La. Ann. 979. 
 
 75 U. S. v. Smith, 40 Fed. Rep. 755 ; U. S. r. Shepard, 27 Fed. Cas. 1056. 
 
 76 Ex Parte Moan, 65 Calif. 216; State v. Ross, 14 La. Ann. 364; State v. 
 Vincent, 36 La. Ann. 770; State v. Whipple, 57 Vt 637. CONTRA State v. 
 Boswell, 104 Ind. 541 ; Richards v. State, 22 Neb. 145. A defendant may be 
 prosecuted by information after a nolle pros, is entered on a bill of indict- 
 ment: Dye v. State, 130 Ind. 87. 
 
 77 Sec. 1022. 
 
 78 Ex Parte Wilson, 114 U. S. 417.
 
 Il6 THE GRAND JURY. 
 
 sharp attacks upon the grand jury. The grand jurors made 
 inquiry of the court as to what redress they had or what ac- 
 tion could be taken. Judge Ludlow advised them that as an 
 official body they had no redress and could take no action 
 against the persons responsible for the publication. 79 
 
 The grand juror's oath enjoins upon him "the common- 
 wealth's counsel, your fellows and your own you shall keep 
 secret." We have seen how the pledge of secrecy was en- 
 joined upon the grand jury in the time of Bracton, and how it 
 became a part of their oath prior to the time of Britton. The 
 purpose of enjoining secrecy upon the inquest has been a theme 
 for much discussion and has produced many diverse views. Mr. 
 Christian considers that its purpose was to prevent a defendant 
 from contradicting the testimony produced before the grand 
 jury by subornation of perjury; 80 while others hold that its 
 purpose was to prevent the grand jurors from being overawed 
 by the power and high connections of those whom they should 
 present. 81 Both of these views are attacked vigorously by 
 Mr. Bentham 82 and Mr. Ingersoll, 83 the latter of whom con- 
 cedes the propriety of the secrecy in the time of Bracton that 
 the offender might not escape, while contending that in the 
 present day aspect of the institution it no longer has any pur- 
 pose to serve and should be abolished. 
 
 While it would seem, without doubt, that its original pur- 
 pose was that no offender should escape, it could not be in- 
 sisted upon by the grand jurors as a matter of right. They 
 were originally bound to disclose to the court the grounds 
 upon which the inquest had acted and the part each juror had 
 taken in it. When the right to deliberate and keep the man- 
 ner in which each juror had voted secret, first became a pre- 
 rogative of the grand jury, cannot be determined. In Scar- 
 
 79 Grand Jury v. Public Press, 4 Brews. (Pa.) 313; and see Act June 
 16, 1836, P. L. 23. 
 
 80 4 Bl. Com. 126, Christian's Note. The same reason for the require- 
 ment of secrecy is given in the case of Crocker v. State, Meigs (19 Tenn.) 
 127. 
 
 81 Huidekoper v. Cotton, 3 Watts (Pa.) 56. 
 
 82 Rationale of Judicial Evidence, Vol. n, p. 312. 
 
 83 An Essay on the Law of Grand Juries (Phila. 1849).
 
 OATH POWERS AND DUTIES. 117 
 
 let's case 84 we have what is perhaps the last recorded instance 
 of the court being informed by the grand jurors how any mat- 
 ter had come to their knowledge. Subsequent to this, we see 
 the crown exercising its alleged right to compel the grand 
 jury to hear the evidence in open court, although it did not at- 
 tempt to deny them the right to deliberate in the privacy of 
 their own room, nor when they refused to divulge why they 
 had ignored a bill did the court take any steps to compel them 
 to do so. And the last instance where the grand jury were 
 even obliged to hear the evidence in public seems to have been 
 in Lord Shaftesbury's case, 88 where the grand jury so stoutly 
 asserted their right to hear the evidence only within their own 
 room. 
 
 A very remarkable case, savoring of the methods pursued 
 in England in Lord Shaftesbury's case arose in North Caro- 
 lina 88 in 1872. One Joseph R. Branch was charged with hav- 
 ing committed an affray and with assault on one, Spier Whit- 
 aker. The case was heard by the grand jury, the witnesses be- 
 ing Whitaker and one Hardy, and the grand jury offered to 
 return the bill "not a true bill" which the court refused to re- 
 ceive. The court thereupon directed the grand jurors to be 
 seated in the jury box and in open court examined the same 
 witnesses before them. The judge then charged that if the tes- 
 timony was believed, a true bill should be returned. The 
 grand jury accordingly returned a true bill. The defendant 
 moved to quash the indictment, which motion was refused and 
 an appeal was then taken to the Supreme Court which reversed 
 the ruling of the lower court. In his opinion Pearson, C. J., 
 says: 
 
 "There is nothing in our law books, and no tradition of the 
 profession to show that such has ever been the practice or the 
 course of the courts in this state; and we are of opinion that 
 the ruling of his honor is an innovation not warranted by the 
 law of the land. 
 
 84 12 Co. 98. 
 
 85 8 How. St. Tr. 774. Another instance of the grand jury hearing the 
 evidence in public will be found in The Poulterer's Case, 9 Coke 556. 
 
 86 State v. Branch, 68 N. C. 186.
 
 Il8 THE GRAND JURY. 
 
 "The power of the judge to require a grand jury to come 
 into open court and have the witnesses for the state examined, 
 is not only opposed to immemorial usage, but is not sustained 
 either by principle or authority." 
 
 It was by reason of this requirement of secrecy that in 
 England the view obtained that a grand juror not only could 
 not be compelled to reveal in evidence what had transpired in 
 the grand jury room, but under no circumstances would be al- 
 lowed to voluntarily do so. 87 This doctrine, however, re- 
 ceived its first test in a case mentioned by Mr. Christian, 88 
 where a member of a grand jury heard a witness testify before 
 a petit jury contrary to what he had testified before the grand 
 inquest. "He immediately communicated the circumstances 
 to the judge, who upon consulting the judge in the other court, 
 was of opinion that public justice in this case required that the 
 evidence which the witness had given before the grand jury 
 should be disclosed; and the witness was committed for per- 
 jury to be tried upon the testimony of the gentlemen of the 
 grand jury." 89 
 
 The same view was taken by Mr. Justice Huston in a Penn- 
 sylvania case. 90 "That part of the oath," he says, "as well as 
 the whole of the proceeding, was intended to punish the guilty, 
 without risk to those who, in performance of their duty, took 
 a part in the proceeding; but it never was intended to punish 
 the innocent or obstruct the course of justice." 
 
 The tendency is to permit grand jurors to testify where it 
 will not be revealed how any member of the jury voted. 91 
 
 87 Grand Jurors as Witnesses (M. W. Hopkins) 21 Cen. L. J. 104. 
 
 88 4 Bl. Com. 126, Christian's Note. 
 
 89 That a witness who testifies falsely before the grand jury may be in- 
 dicted for perjury upon the testimony of the grand jurors or by them of 
 their own knowledge, see i Chitty Cr. Law 322; U. S. v. Charles, 25 Fed. 
 Cas. 409; R. v. Hughes, i Car. & K. 519; People v. Young, 31 Calif. 563; 
 State v. Fassett, 16 Conn. 457; State v. Offutt, 4 Blackf. (Ind.) 
 355; Com. v. Hill, n Cush. (Mass.) 137; Huidekoper v. Cotton, 3 Watts 
 (Pa.) 56; State v. Terry, 30 Mo. 368; Crocker v. State, Meigs (Tenn.) 127; 
 Thomas v. Com. 2 Robinson (Va.) 795. 
 
 90 Huidekoper v. Cotton, 3 Watts (Pa.) 56. 
 
 91 Grand Jurors as Witnesses (M. W. Hopkins) 21 Cen. L. J. 104.
 
 OATH POWERS AND DUTIES. I IQ 
 
 Thus it has been held that a grand juror may testify as to who 
 was the prosecutor upon a certain bill of indictment; 92 that 
 twelve jurors concurred in the finding; 93 that a witness had 
 testified to a different state of facts when before the grand 
 jury; 94 that the presentment was made upon facts not within 
 the personal knowledge of any of the grand jurors ; 95 that for 
 the protection of public or private rights, any person may dis- 
 close in evidence what transpired before a grand jury. 98 
 
 In Iowa 97 affidavits of the grand jurors were received on 
 motion to quash the indictment to show that the judge visited 
 the grand jury during its deliberation and directed that an in- 
 dictment should be returned against a certain person for a 
 certain offence and an indictment was so found under the ex- 
 press instructions of the court. 
 
 The court has permitted the record to go in evidence to the 
 jury to prove the time when a witness testified before the 
 grand jury. 98 But a grand juror cannot testify to facts that 
 would impeach the finding of the grand jury 99 or disclose how 
 
 92 Huidekoper v. Cotton, 3 Watts (Pa.) 56. 
 
 93 i Greenleaf on Evidence Sec. 252; Low's Case, 4 Greenl. (Me.) 439; 
 Territory v. Hart, 7 Mont 489; State v. Logan, i Nev. 509; People v. 
 Shattuck, 6 Abb. (N. Y.) 33; State v. Horton, 63 N. C 595. But see 
 Gitchell v. People, 146 111. 175; Shoop v. People, 45 111. App. no; Hooker v. 
 State, 56 Atl. 390; State v. Baker, 20 Mo. 338. 
 
 94 U. S. v. Porter, 27 Fed. Cas. 595. Fotheringham v. Adams Ex. Co., 
 34 Fed. Rep. 646; Burnham v. Hatfield, 5 Blackf. (Ind.) 21; Perkins v. 
 State, 4 Ind. 222; Kirk v. Garrett, 84 Md. 383; Com. v. Mead, 12 Gray 
 (Mass.) 167; Com. v. Hill, 11 Cush. (Mass.) 137; State v. Broughton, 7 
 Ired. (N. C.) 96; Gordon v. Com. 92 Pa. 216. And see Rocco v. State, 37 
 Miss. 357. CONTRA. I Greenleaf on Evidence, Sec. 252; Imlay v. Rogers. 
 2 Halst. (N. J.) 347- 
 
 95 Com. v. Green, 126 Pa. 531 ; Com. v. McComb, 157 Pa. 611 ; Com. v. 
 Kulp. 5 Pa. Dist. Rep. 468. But see State v. Davis, 41 Iowa, 311. 
 
 96 U. S. v. Farrington, 5 Fed. Rep. 343 ; Burdick v. Hunt, 43 Ind. 381 ; 
 Hunter v. Randall, 69 Me. 183; Jones v. Turpin, 6 Heisk. (Tenn.) 181. 
 
 97 State v. Will, 97 Iowa 58. And see Contra. Hall v. State, 32 So. 750. 
 
 98 Virginia v. Gordon, 28 Fed. Cas. 1224. 
 
 99 U. S. v. Terry, 39 Fed. Rep. 355 ; U. S. v. Reed, 27 Fed Cas, 727 ; 
 R. v. Marsh, 6 Ad. & El. 236; Spigcner v. State, 62 Ala. 383; Ex Parte 
 Sontag, 64 Calif. 525; State v. Hamlin, 47 Conn. 95; Simms v. State, 60 
 Ga. 145; Gilmore v. People, 87 111. App. 128; State v. Gibbs, 39 Iowa 318;
 
 I2O THE GRAND JURY. 
 
 any juror voted or what they said during their investiga- 
 tions. 100 
 
 Where a statute provided "no grand juror shall disclose any 
 evidence given before the grand jury," it was held not a vio- 
 lation of the act to state that a certain person, naming him. 
 had testified before the grand jury, and the subject matter upon 
 which he testified. 101 Nor is it a violation of the grand juror's 
 oath of secrecy to report to the court the fact that a witness re- 
 fuses to testify. 102 If the grand jurors are not required to take 
 an oath of secrecy, they may be examined as witnesses touching 
 matters which came to their knowledge while acting as grand 
 jurors. 103 
 
 This provision of secrecy not only surrounds the grand 
 jurors, but also includes their clerk if he be not one of their 
 number, 104 and the district attorney. 105 They may or may 
 not be permitted to testify accordingly as a grand juror may 
 or may not testify. 106 But it does not include witnesses who 
 
 State v. Davis, 41 Iowa 311; State v. Mewherter, 46 Iowa 88; Com. v. 
 Skeggs, 66 Ky. 19; State v. Beebe, 17 Minn, 241; State v. Baker, 20 Mo. 
 338; State v. Hamilton, 13 Nev. 386; People v. Hulbut, 4 Denio (N. Y.) 
 133; People v. Briggs, 60 How. Pr. Rep. (N. Y.) 17; Ziegler v. Com. 22 W. 
 N. C. (Pa.) in; Com. v. Twitchell, I Brews. (Pa.) 551; State v. Oxford, 
 30 Tex. 428. 
 
 100 U. S. v . Farrington, 5 Fed. Rep. 343 ; U. S. v . Kilpatrick, 16 Fed. Rep. 
 765; Stewart v. State, 24 Ind. 142; State v. Lewis, 38 La. Ann. 680; Com. v. 
 Twitchell, I Brews. (Pa.) 551. 
 
 101 State v. Brewer, 8 Mo. 373. CONTRA. State v. Baker, 20 Mo. 338; 
 Beam v. Link, 27 Mo. 261. And see Ex Parte Schmidt, 71 Calif. 212; 
 Hinshaw v. State, 47 N. E. 157. 
 
 102 People v. Kelly, 21 How. Prac. Rep. (N. Y.) 54; In re Archer, 96 N. 
 W. 442; Heard v. Pierce, 8 Cush. (Mass.) 338. 
 
 103 Granger v. Warrington, 8 111. 299. 
 
 104 Trials per Pais (Giles Duncombe) Vol. II, p. 387; i Greenleaf on 
 Evidence, Sec. 252 ; State v. McPherson, 87 N. W. 421. 
 
 105 Com. v. Twitchell, i Brews. (Pa.) 551; i Greenleaf on Evidence, Sec. 
 252; McLellan v. Richardson, 13 Me. 82; i Bost. Law Rep. 4; Jenkins v. 
 State, 35 Fla. 737. And see State v. Grady, 84 Mo. 220, where the prosecut- 
 ing attorney was required to testify. The attorney general on plea in 
 abatement cannot stipulate what the evidence was: People v. Thompson, 
 81 N. W. 344- 
 
 106 I Greenleaf on Evidence, Sec. 252.
 
 OATH POWERS AND DUTIES. 121 
 
 testify before the grand jury; they may be compelled to dis- 
 close the testimony given by them. 107 
 
 It has been held that it is not a contempt of court for a 
 grand juror to refuse to testify how he voted on the finding of 
 a certain indictment; the court had no authority to require 
 such disclosure 108 and in refusing to answer the juror was act 
 ing strictly within his legal rights. In fact had he so testified 
 in response to the question put, he would have been guilty of a 
 violation of his oath. 
 
 The remaining portion of the grand juror's oath does not 
 require special consideration. It is clear and unmistakable 
 in its terms and, consequently, has never been made the sub- 
 ject of judicial inquiry. 
 
 In addition to the powers vested in them by their oath and 
 the common law, grand jurors have in many instances other 
 duties imposed upon them by statute. In many states grand 
 jurors are required by statute to examine into the condition 
 of jails, asylums and other public institutions; examine the 
 books and accounts of the various public officials in the county, 
 fix the tax rate, and have a general supervision over public im- 
 provements. 109 
 
 The Pennsylvania statutes impose upon a grand jury cer- 
 tain duties which relate to matters of the general public good 
 within the county. Thus it is essential that the grand jury 
 should pass upon the proposition to incorporate a borough 
 within the county, 110 and the court will not review a question 
 of fact as to the incorporation of such borough when the grand 
 jury considers the incorporation necessary. 111 No public 
 buildings may be erected within the county unless two succes- 
 sive grand juries have approved of the erection of such build- 
 ings, 112 and likewise no county bridge may be erected unless 
 
 107 People v. Young, 31 Calif. 563; People r. Northey, 77 Calif. 618: 
 People v. Naughton, 38 How. Prac. Rep. 430. 
 
 108 Ex Parte Sontag, 64 Calif. 525. 
 
 109 See Thompson and Merriam on Juries, Sec. 473-474. 
 
 1 10 Act April i, 1834, P. L, 163; Act June 2, 1871, P. L. 283; Act May 
 26, 1891, P. L. 120. 
 
 in Millville Borough, 10 Pa. C. C. Rep. 321. 
 
 112 Act April 15, 1834, P. L. 539; Act June I, 1883, P. L. 58.
 
 122 THE GRAND JURY. 
 
 two successive grand juries shall determine that it is neces- 
 sary. 113 
 
 In Connecticut 114 the town meeting chooses annually not less 
 than two nor more than six grand jurors who are charged to 
 "diligently inquire after and make complaint of all crimes and 
 misdemeanors that shall come to their knowledge, to the 
 court having cognizance of the offence, or to some justice of 
 the peace in the town where the offence is committed," and 
 they have power to require the person who informs them of 
 the offence to make a proper information under oath and ad 
 minister to them the oath of a witness. In Georgia 115 they ar* 
 authorized to act as a board of revision of taxes, and examine 
 statements of the county liabilities and fix the rate of tax nec- 
 essary to discharge such liabilities. They are also required 
 to ascertain the condition of the county treasury. In Missis- 
 sippi 116 they are obliged to examine the tax collectors' books 
 and accounts. In Alabama 117 and Tennessee 118 they must 
 investigate the sufficiency of the bonds of all county officers, 
 while in Vermont 119 grand jurors are charged by statute with 
 the duty of arresting persons having liquor for sale contrary 
 to law, and may do so without a warrant ; must seize the liquor, 
 and may arrest intoxicated persons who have committed a 
 breach of the peace. 
 
 Grand jurors are in general not called to be sworn in any 
 cause, 120 but are sworn to inquire into all crimes which have 
 
 113 Act April 29, 1891, P. L. 31 ; Pequea Creek Bridge, 68 Pa. 427. 
 
 114 General Statutes 1875, p. 241, Sec. i; p. 531, Sec. 2, 3, 4, 5. Smith 
 v. State, 19 Conn. 493. 
 
 115 Code 1873, Sec. 3919; Sec. 510; Sec. 3920. 
 
 116 Revised Code 1880, Sec. 1675. 
 
 117 Code 1876, Sec. 4767-68. 
 
 118 Statutes 1871, Sec. 5079. 
 
 119 General Statutes 1862, p. 596, Sec. 25; p. 600, Sec. 33. 
 
 120 U. S. v. Reeves, 27 Fed. Cas. 750. In Indiana, St. 1825, p. 21, authoriz- 
 ing special sessions of the Circuit Court, does not warrant the finding of an 
 indictment at the special term against any other person than the one for 
 whose trial the court was convened: Wilson v. State, I Blackf. (Ind.) 
 428.
 
 OATH POWERS AND DUTIES. 123 
 
 been committed within the county. 121 If, therefore, when the 
 oath is administered it embraces one or more persons by name 
 whose cases are about to be laid before the grand jury and in 
 respect to which the oath is administered and nothing more, no 
 evidence can be given under it in support of any accusation 
 against others. 122 
 
 131 Addison, App. 36. 
 
 122 U. S. v. Reed, 27 Fed. Cas. 727. And see Wilson v. State, i Blackf. 
 (Ind.) 428. CONTRA. In re County Commissioners, 7 Ohio N. P. 4501
 
 PART IV 
 
 HOW THE GRAND JURY TRANSACTS BUSINESS AND ITS RELA- 
 TION TO THE COURT. 
 
 When the grand jurors have been duly empaneled and 
 sworn, the court delivers to them a charge ordinarily in 
 relation to their duties and those matters concerning which 
 they may be called upon to investigate. 1 At times the court 
 may thus commit specially to their care, matters of great public 
 importance. 2 Judge Addison, in his charges to grand juries, 
 availed himself of the opportunity in that early stage of our 
 Federal government, to inculcate in the citizens through the 
 medium of the grand jury, a better knowledge of our political 
 institutions, the theory of government, the relations between 
 the government and its subjects, and the subjects with each 
 other. Other eminent jurists have used it as a means of com- 
 munication with the public. Judge Wilson expressed the same 
 thought when he said : 3 "The grand jury are a great channel of 
 communication, between those who make and administer the 
 laws, and those for whom the laws are made and adminis- 
 tered." 
 
 In the press of business at the present day, it is rare, in the 
 absence of some event of great public importance which the 
 court deems it necessary the grand jury should consider, for 
 
 i While it is the duty of the court to charge the grand jury, it will 
 not invalidate an indictment should this be omitted : Stewart v. State, 24 
 Ind. 142; Com. v. Sanborn, 116 Mass. 61 ; State v. Froiseth, 16 Minn. 313; 
 Clair v. State, 40 Neb. 534 ; Cobb v. State, Id. 545 ; State v. Edgerton, 69 
 N. W. 280; State v. Furco, 51 La. Ann. 1082. And see State v. Will, 97 
 Iowa 58; State v. Turlington, 102 Mo. 642. Nor will a conviction be dis- 
 turbed: Porterfield v. Com. 91 Va. 801. 
 
 2 In re Citizens Association, 8 Phila. (Pa.) 478. 
 
 3 Jas. Wilson's Works, Vol. II, p. 366. 
 
 124
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 125 
 
 the court to do more than deliver a brief charge as to the duties 
 of the grand jury. 
 
 While it is usual for the court to charge the grand jury 
 only when they first enter upon their duties, it may at any time 
 during their period of service, deliver a supplementary charge 
 or charges to them upon any particular matter, or upon any 
 special matter which the district attorney may be prepared to 
 send before them, or may direct them to investigate any mat- 
 ters of grave importance to the public welfare. This is usually 
 done by the court upon its own motion or at the request of the 
 grand jury and probably would be done upon motion of the 
 district attorney. Whether it will be done upon motion of 
 counsel for a defendant whose case will be considered by the 
 grand jury, has not been settled. 4 
 
 This question first arose in this country upon the trial of 
 Aaron Burr. 5 In the report of the trial the following appears : 
 
 "Mr. Burr called up the motion for a supplemental charge 
 to the grand jury, in support of which he had, on yesterday, 
 submitted a series of propositions, with citations of authori- 
 ties. 
 
 "The Chief Justice (Marshall) stated that he had drawn 
 up a supplemental charge, which he had submitted to the at- 
 torney for the United States, with a request that it should also 
 be put into the hands of Col. Burr's counsel; that Mr. Hay 
 had, however, informed him that he had been too much occu- 
 pied to inspect the charge with attention, and deliver it to the 
 opposite counsel ; but another reason was, that there was one 
 point in the charge which he did not fully approve. He should 
 not, therefore, deliver his charge at present, but should re- 
 serve it until Monday. In the meantime Col. Burr's counsel 
 could have an opportunity of inspecting it, and an argument 
 might be held on the points which had produced an objection 
 from the attorney for the United States." 
 
 It does not appear in the report of the case that this charge 
 was ever delivered. The same case discloses, however, that a 
 
 4 Sec Post ia6. 
 
 5 U. S. v. Aaron Burr, 25 Fed. Cas. 6*.
 
 126 THE GRAND JURY. 
 
 communication on the part of the defendant was actually sent 
 to the grand jury by the Chief Justice: 
 
 "Mr. McRae hoped that notice of his communication would 
 be sent to the grand jury. 
 
 "Mr. Martin hoped that Col. Burr's communication also 
 would go along with it. The Chief Justice was unwilling to 
 make the court the medium of such communications. The 
 Chief Justice subsequently reduced the communications to 
 writing and sent them to the grand jury." 
 
 What would seem to be the true rule in such instances was 
 laid down by Judge Cranch, who said; 8 "The court may in 
 its discretion, give an additional charge to the grand jury, al- 
 though they should not ask it; and when they do ask it, the 
 court may, perhaps, be bound to give it, if it be such an in- 
 struction as can be given without committing the court upon 
 points which might come before them to be decided on the 
 trial in chief. When an instruction to the grand jury is asked 
 either by the accused or the prosecutor, it is a matter of dis- 
 cretion with the court to give the instruction or not, consider- 
 ing the extent of the prayer, and all the circumstances under 
 which it is asked." 
 
 The fact that a portion only of the grand jurors were spec- 
 ially advised, at their request, as to the law governing the case 
 then under consideration, will not invalidate an indictment 
 found by such grand jury. 7 
 
 The charge of the court delivered to the grand jury will 
 not, in general, be ground for setting aside the indictment 
 even though highly inflammatory language be used, 8 unless 
 the court should so charge with relation to a specific case to 
 come before them. 9 If the charge be in general terms, no mat- 
 ter how impolitic its delivery may be, a defendant can hardly 
 complain that he was prejudiced thereby. Should the court 
 urge the finding of a particular indictment or in any manner 
 
 6 U. S. v. Watkins, 28 Fed. Cas. 419. 
 
 7 State v. Edgerton, 69 N. W. 280. 
 
 8 Parker v. Territory, 52 Pac. 361 ; Clair v. State, 28 L. R. A. 367 ; S. 
 C. 40 Neb. 534. 
 
 9 State v. Turlington, 102 Mo. 642.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. I2/ 
 
 endeavor to influence the finding of the grand jury, a bill so 
 found will be quashed. 10 
 
 When the court has charged the grand jury as to their duties, 
 the jurors then retire to their room to consider the matters 
 which may come before them. They are there attended by the 
 district attorney 11 or one of his assistants, who aids them in ex- 
 amining the witnesses and advises them upon questions of 
 law. 12 At common law the grand jurors conducted the ex- 
 amination of witnesses themselves, not permitting the attorney 
 for the crown to enter the room, and receiving their instruc- 
 tions as to the law directly from the court. In order that the 
 crown officer might know what evidence was given to the 
 grand jury and perhaps with a view of overawing the grand 
 inquest when they should retire to deliberate, they were in 
 several instances in state prosecutions required to hear the evi- 
 dence in open court, although after so hearing it they were 
 never denied the right to again hear the witnesses in pri- 
 vate. 13 In 1794 upon the indictment of Hardy and others 
 for treason, the grand jury requested the attendance of the 
 solicitor for the crown for the purpose of managing the evi- 
 dence, for which leave of court was first obtained. 14 
 
 It is the general custom at the present day in all jurisdictions 
 to permit the district attorney to attend the grand jury, 15 
 
 10 Blau v. State, 34 So. 153; State v. Will, 97 Iowa 58. And see Hall v. 
 State, 32 So. 750; People v. Glen, 173 N. Y. 395. 
 
 11 Byrd v. State, i How. (Miss.) 247. A county attorney is in effect the 
 assistant to the attorney for the commonwealth and may lawfully conduct 
 the examination of witnesses before the grand jury: Franklin v. Com. 48 S. 
 W. 986. The district attorney may be present to assist the grand jury in dis- 
 posing of township applications for bridge appropriations under Act of 
 April 16, 1870, (P. L. 1199) : In re Bridge Appropriations, 9 Kulp (Pa.) 
 427. 
 
 12 U. S. v. Cobban, 127 Fed. Rep. 713; Shattuck v. State, n Ind. 473. 
 The powers and duties of the grand jury do not cease because there may 
 happen to be no district attorney: State v. Gonzales, 26 Tex. 197. And 
 see U. S. v. McAvoy, 26 Fed. Cas. 1044. 
 
 13 Supra. 28, 29, 117. 
 
 14 Growth of the Grand Jury System (J. Kinghorn) 6 Law Mag. & Rev. 
 (4th S.) 380. 
 
 15 Charge to Grand Jury, 30 Fed. Cas. 992; Ex Parte Crittenden, 6 Fed.
 
 128 THE GRAND JURY. 
 
 but he has no right to be present during the deliberations of 
 the grand jurors 16 and should withdraw if requested to do so ; 1T 
 nor is it proper for him to attempt to control or influence the 
 action of the grand jury 18 or to say what effect should be given 
 to the testimony adduced before them. 19 But the fact that the 
 district attorney was present during the deliberations of the 
 grand jury and the taking of the vote is at most an irregu- 
 larity and no ground for quashing the indictment 20 in the ab- 
 sence of any averment and proof that the defendant was 
 thereby prejudiced ; 21 likewise where after certain persons had 
 testified in a particular case the district attorney said : "I 
 suppose you do not want to hear any more." 22 If the district 
 attorney should participate in the deliberations of the grand 
 jury, or make any effort to influence their finding, the indict- 
 ment will be quashed. 23 Private counsel for the prosecution 
 
 Cas. 822 ; In re District Attorney U. S., 7 Fed. Cas. 745 ; U. S. v. Edger- 
 ton, 80 Fed. Rep. 374; Shattuck v. State, n Ind. 473; Shoop v. People, 45 
 111. App. 1 10 ; State v. Adam, 40 La. Ann. 745 ; State v . Aleck, 41 La. Ann. 
 83; People v. O'Neill, 107 Mich. 556; Com. v. Salter, 2 Pears. (Pa.) 461; 
 State v. Mickel, 65 Pac. 484; State v. McNinch, 12 S. C. 89; State v. 
 Baker, 33 W. Va. 319. See Anonymous 7 Cow. (N. Y.) 563. Where the 
 county attorney is disqualified, an attorney appointed to prosecute a case 
 may lawfully appear before the grand jury: State v. Kovolosky, 92 Iowa, 
 498. And see State v. Gonzales, 26 Tex. 197; U. S. v. Cobban, 127 Fed. 
 Rep. 713- 
 
 16 Charge to Grand Jury, 30 Fed. Cas. 992; Lung's Case, i Conn. 428; 
 Rothschild v. State, 7 Tex. App. 519. 
 
 17 In re District Attorney U. S., 7 Fed. Cas. 745. 
 
 1 8 Com. v. Frey, n Pa. C. C. Rep. 523. 
 
 19 Com. v. Frey, n Pa. C. C. Rep. 523; Com. v. Bradney, 126 Pa. 199. 
 
 20 Com. v. Twitchell, i Brews. (Pa.) 551; U. S. v. Terry, 39 Fed. Rep. 
 355 J Com. v. Bradney, 126 Pa. 199. And see Regent v. People, 96 111. App. 
 189. 
 
 21 U. S. v. Terry, 39 Fed. Rep. 355. 
 
 22 Com. v. Salter, 2 Pears. (Pa.) 461. 
 
 23 Com. v. Bradney, 126 Pa. 199; CONTRA Hall v. State, 32 So. 750. And 
 see as to the presence of other officers in the grand jury room, Post 139, 
 Note 90. An indictment was quashed where private counsel entered the grand 
 jury room while they were deliberating and advised them as to their duty: 
 State v. Addison, 2 S. C. 356. And see Miller v. State, 28 So. 208.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 129 
 
 have no right to be present in the grand jury room to examine 
 witnesses and the district attorney cannot authorize such ac- 
 tion. 24 
 
 The relation which should be maintained between the dis- 
 trict attorney and the grand jury is well stated by Mr. Justice 
 Clark : 2B 
 
 "The district attorney is the attendant of the grand jury: 
 it is his duty as well as his privilege to lay before them mat- 
 ters upon which they are to pass, to aid them in their examina- 
 tion of witnesses, and to give them such general instructions 
 as they may require. But it is his duty during the discussion 
 of the particular case, and whilst the jurors are deliberating 
 upon it, to remain silent. It is for the jury alone to consider 
 the evidence and to apply it to the case in hand, any attempt 
 on the part of the district attorney to influence their action or 
 to give effect to the evidence adduced, is in the highest degree 
 improper and impertinent. Indeed, it is the better practice and 
 the jurors have an undoubted right to require, that he should 
 retire from the room during their deliberations upon the evi- 
 dence and when the vote is taken whether or not an indictment 
 shall be found or a presentment made." 
 
 The tendency of the modern cases is to hold that it is the 
 "right" of the district attorney to be present to examine the 
 witnesses and conduct the case for the government. 26 That it 
 was not his right at common law was conceded by the aban- 
 donment of hearing the evidence in public when the grand 
 jury refused to indict in Lord Shaftesbury's case. 27 In the 
 absence of any statute which grants this right to him, it would 
 
 24 Durr v. State, 53 Miss. 425; People v. Scannell, 72 N. Y. Sup. 449; 
 State v. Heaton, 56 Pac. 843. But see Wilson v. State, 51 S. W. 916, 
 where private counsel was present on the invitation of the district attor- 
 ney and examined the witnesses, but was not present when the grand 
 jury was deliberating. And see People v. Bradner, 44 Hun (N. Y.) 233; 
 Blevins v. State, 68 Ala. 92. This forms no ground for reversing a judg- 
 ment: State v. Whitney, 7 Ore. 386. 
 
 25 Com. v. Bradney, 126 Pa. 199. 
 
 26 In re District Attomev U. S., 7 Fed. Cas. 745; Com. v. Salter, 2 
 Pears. (Pa.) 461. 
 
 27 Supra. 117.
 
 13 THE GRAND JURY. 
 
 seem that the common law rule is still in force and that the 
 presence of the district attorney in the grand jury room, even 
 for the purpose of examining witnesses, is not by reason of 
 his right, but as a matter of grace on the part of the grand 
 jury. 
 
 The Pennsylvania statute under which the office of dis- 
 trict attorney was created provides: 28 "The officer so elected 
 shall sign all bills of indictment, and conduct in court all crim- 
 inal or other prosecutions." This statute does not expressly 
 give him the power to conduct proceedings before the grand 
 jury ; can this authority be said to be implied by it ? That the 
 grand jury is in court although not in open court will admit of 
 no question. The direction therefore that the district attorney 
 shall conduct in court all criminal proceedings, would seem to 
 be ample authority to conduct all parts of the prosecution from 
 the time it first conies into court, usually on the return of the 
 magistrate, until the case is finally disposed of, either by the 
 acquittal, or conviction and sentence of the defendant. 28 * 
 
 There are two ways in which a grand jury may act in order 
 to put a defendant upon his trial. 
 
 I. By presentment. 29 
 
 II. By indictment. 
 
 A presentment is the notice taken by a grand jury of any 
 offence from their own knowledge or observation upon which 
 the officer of the court must afterwards frame an indictment 
 before the party presented can be put to answer it. 30 
 
 28 Act May 3, 1850, P. L. 654. 
 
 28* See the discussion in State v. Warner, 165 Mo. 413 of the authority 
 of the district attorney in the conduct of criminal prosecutions. 
 
 29 In California the constitution of 1879 omits all reference to "present- 
 ments," and consequently a "presentment'' by a grand jury is unauthorized: 
 In re Grosbois, 109 Calif. 445. In Georgia, Code Sec. 4632, obliterates the 
 distinction between presentments and indictments : Groves v. State, 73 
 Ga. 205. 
 
 30 4 Bl. Com. 301 ; Mr. Justice Field's Charge to Grand Jury, 30 Fed. 
 Cas. 992. And see Collins v. State, 13 Fla. 651. In Com. v. Towles, 5 
 Leigh (Va.) 743, the defendant was obliged to answer to the presentment 
 of the grand jury and was tried thereon. For a similar case see Smith v. 
 State, I Humph. (Tenn.) 396.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 13! 
 
 The Constitution of the United States provides : 3i "No per- 
 son shall be held to answer for a capital or otherwise infamous 
 crime, unless on a presentment or indictment of a grand jury." 
 The provision is in the disjunctive and Chief Justice Marshall 
 makes the pertinent inquiry, 82 "Is it the indictment or present- 
 ment he is to answer?" Judge Addison expresses the opin- 
 ion 33 that a defendant under this provision may be required to 
 plead to the presentment without a formal indictment based 
 upon the presentment being submitted to the grand jury and 
 returned a true bill by them. His view undoubtedly receives 
 strong support from the use of the conjunction or in this 
 clause ; but opposed to it is the practice at common law, which 
 has been universally adopted in this country, of framing an 
 indictment upon the presentment and submitting it to the grand 
 jury for their action. Chief Justice Marshall observes 34 that 
 the indictment "is precisely the first presentment, corrected 
 in point of form . . . . to be considered as one and the 
 same act, and that the second is only to be considered as an 
 amendment of the first." 
 
 Irrespective of the question of the right of the government 
 to require a defendant to plead to and be tried upon a present- 
 ment without an indictment being founded upon it, the lack of 
 "technical form" in the presentment makes it necessary that it 
 should serve only as the basis of an indictment, otherwise in 
 many instances a defendant would escape by the failure of the 
 presentment to properly charge an offence against the statutes. 
 
 An indictment is a written accusation of one or more per- 
 sons of a crime or misdemeanor, preferred to and presented 
 upon oath by a grand jury. 88 
 
 In Pennsylvania as a legal presentment can only be made 
 where the offence charged is within the personal knowledge 
 
 31 Amendment V. 
 
 32 U. S. v. Hill, 26 Fed. Cas. 315. 
 
 33 Addison, App. 38. 
 
 34 U. S. v. Hill, 26 Fed. Cas. 315. 
 
 35 4 Bl. Com., 301. The court may order an indictment to be sent to 
 the grand jury without a previous presentment: U. S. v. Madden, 26 Fed. 
 Cas. 1138; U. S. r. Thompkins, 28 Fed. Cas. 89.
 
 132 THE GRAND JURY. 
 
 of at least one of the grand jurors, and the presentment is the 
 result of his disclosure of knowledge to his associates, it fol- 
 lows that there are no witnesses to testify before the grand 
 jury in support of it, 36 although it sometimes happens when an 
 indictment has been framed upon the presentment and is sent 
 to the grand jury that witnesses are sent before them in sup- 
 port of its averments. 87 
 
 Where the indictment is not based upon the former present- 
 ment of a grand jury, it is necessary that witnesses should tes- 
 tify in support thereof; if the indictment be found without 
 hearing evidence it will be quashed. 38 
 
 In Georgia it has been held that an indictment founded on a 
 presentment of the grand jury need not again be sent before 
 them for their action upon it. 39 
 
 If an indictment has been quashed or nolle pressed, a new in- 
 dictment for the same offence may be found by the same grand 
 jury which returned the former one without hearing evidence 
 in support of the second bill. 40 
 
 In order to procure the attendance of witnesses to testify 
 in support of any bill which may be sent before the grand 
 jury, a subpoena is issued by the district attorney and served 
 upon such persons as are not bound by recognizance to ap- 
 pear. 41 Those who are so bound to appear and testify are re- 
 
 36 See State v. Love, 4 Humph. (Tenn.) 255; State v. Cain, i Hawks 
 (N. C.) 352; State v. Richard, 50 La. Ann. 210. 
 
 37 In Com. v. Hayden, 163 Mass. 453, it was held that an indictment 
 is not void because it was found by the grand jury after hearing testimony 
 by one of the grand jurors, since the grand jury may properly act upon 
 the personal knowledge of any of its members. In North Carolina, where 
 a bill is found upon the evidence of a grand juror, he must be regularly 
 sworn as a witness and be noted as such: State v. Cain, I Hawks 352. 
 And see In re Gardiner, 64 N. Y. Sup. 760. 
 
 38 State v. Grady, 84 Mo. 220. And see State v. Cain, i Hawks. (N. C.) 
 
 352. 
 
 39 Nunn v . State, I Kelly 243. 
 
 40 Com. v. Woods, 10 Gray (Mass.) 477; State v. Peterson, 61 Minn. 
 73; Whiting v. State, 48 Ohio St. 220. CONTRA State v. Ivey, 100 N. C. 
 539. See Mclntire v. Com., 4 S. W. I. 
 
 41 At common law the committing magistrate before whom the case
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 133 
 
 quired to be produced by their bondsmen upon whom notice is 
 duly served. If the witness cannot be produced the bond will 
 be forfeited and a bail piece issued to bring the witness into 
 court. If the witness is not bound by recognizance and fails 
 to appear after being subpoenaed, an attachment may issue to 
 compel his attendance upon motion of the district attorney. 
 If it is necessary that books or papers be produced in evidence 
 before the grand jury, a subpoena duces tecum may issue but 
 it should particularly describe the books and papers wanted, 42 
 and if there is any question as to whether or not the books or 
 papers so produced are relevant or material, they may be sub- 
 mitted to the inspection of the court. 43 
 
 A witness before the grand jury who refuses to testify upon 
 the ground that his evidence may tend to convict him of a 
 crime, is not guilty of contempt 44 but if the question pro- 
 pounded to the witness does not disclose upon its face that it 
 will have such tendency and the witness fails to clearly show 
 to the court how it will have such effect, he may be punished 
 for a contempt if he refuses to answer after being directed to 
 do so by the court. 46 
 
 While a witness cannot be compelled to testify as to matters 
 which would tend to incriminate him, there is no duty imposed 
 upon the grand jury to inform a witness, who is prepared to so 
 testify, of his constitutional privilege. 46 This ruling is based 
 upon the theory that every person is bound to know the law 
 and any failure through ignorance or otherwise to claim the 
 constitutional privilege will be deemed a waiver of it. 
 
 A witness duly summoned before the grand jury cannot re- 
 fuse to be sworn or refuse to testify without sufficient excuse. 
 The grand jury may ask the advice and assistance of the court 
 
 was heard, in default of bail, can commit the witnesses to await the next 
 term of court: 2 Hale, PI. C. 52, 282; Bennet v. Watson, 3 M. & S. i. 
 
 42 U. S. v. Hunter, 15 Fed. Rep. 712. 
 
 43 Id. In re Archer, 96 N. W. 442. 
 
 44 In re Morse, 87 N. Y. Sup. 721 ; See People v. Kelly, 12 Abb. Pr. 
 Rep. (N. Y.) 150. 
 
 45 In re Rogers, 129 Calif. 468. And see Wheatley v. State, 114 Ga. 
 
 175- 
 
 46 State v. Comer, 157 Ind. 6u.
 
 134 THE GRAND JURY. 
 
 in such case and if the witness still prove recalcitrant he may 
 be punished for contempt. 47 
 
 The bills are sent or brought into the grand jury room by 
 the district attorney and delivered to the foreman. The in- 
 dictment ought to be signed by the district attorney 48 before 
 being submitted to the grand jury, 49 but should he fail to do 
 so the court will not quash upon that ground after the grand 
 jury find a true bill, but will permit bim to affix his signa- 
 ture to the bill in court, and the motion to quash will then be 
 overruled. 60 The district attorney's signature constitutes no 
 part of the indictment. It is only necessary as evidence to the 
 court that he is officially prosecuting the accused in accord- 
 ance with the duty imposed upon him by statute. 51 In the 
 Federal courts the signature of the district attorney may be 
 affixed by one of his assistants acting under a general authority 
 conferred upon him by the district attorney. 52 
 
 An indictment signed by a person designating himself as 
 "solicitor general" when there was no such state officer was 
 held to be invalid. 53 
 
 47 Heard v. Pierce, 8 Cush. (Mass.) 338; In re Harris, 4 Utah 5. 
 
 48 Penna. Statute, May 3, 1850, P. L. 654. 
 
 49 Fout v. State, 3 Hayw. (Tenn.) 98; Kite v. State, 9 Yerg. (Tenn.) 
 198; Teas v. State, 7 Humph. (Tenn.) 174; Jackson v. State, 4 Kan. 150. 
 CONTRA Ward v. State, 22 Ala. 16; Harrall- v. State, 26 Ala. 53; Mc- 
 Gregg v. State, 4 Blackf. (Ind.) 101 ; Thomas v. State, 6 Mo. 457; Keith- 
 ler v. State, 10 Smedes & M. (Miss.) 192; Anderson v. State, 5 Ark 444; 
 State v. Vincent, i Car. Law R. 493. 
 
 50 Com. v. Lenox, 3 Brews. (Pa.) 249; And see Com. v. Brown, 23 Pa. 
 Superior Ct. 470. That the prosecuting officer's signature is not essential 
 to the validity of an indictment. See Joyner v. State, 78 Ala. 448; Wat- 
 kins v . State, 37 Ark 370 ; People v. Butler, i Idaho 231 ; State v. Wil- 
 moth, 63 Iowa 380 ; State v. Williams, 107 La. 789 ; Com. v. Stone, 105 
 Mass. 469; State v. Reed, 67 Me. 127; State v. Murphy, 47 Mo. 274; State v. 
 Vincent, I Car. Law R. 493 ; Brown v. Com. 86 Va. 466. CONTRA Heacock 
 v. State, 42 Ind. 393; State v. Bruce, 77 Mo. 193; Fout v. State, 3 
 Hayw. (Tenn.) 98; State v. Lockett, 3 Heisk (Tenn.) 274. 
 
 51 U. S. v. McAvoy, 26 Fed. Cas. 1044. 
 
 52 U. S. v. Nagle, 27 Fed. Cas. 68 ; State v. Coleman, 8 S. C. 237. And 
 see Com. v. Brown, 23 Pa. Superior Ct. 470; Reynolds v. State, n Tex. 
 120; State v. Gonzales, 26 Tex. 197. 
 
 53 Teas v. State, 7 Humph. (Tenn.) 174. And see State v. Salge, 2 
 Nev. 321.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 135 
 
 Upon the back of the bill, the names of the witnesses should 
 be endorsed by the district attorney, 54 and in Pennsylvania 85 
 it is provided by statute that "no person shall be required to 
 answer to any indictment for any offence whatever, unless the 
 prosecutor's name, if any there be, is endorsed thereon." 58 
 Where no prosecutor is proved to exist, then the defendant 
 must plead without the name of a prosecutor being endorsed 
 on the indictment. 57 
 
 In Mississippi, 58 Ohio, 59 Tennessee 80 and Virginia^ 81 it is 
 also necessary that the name of the presecutor be endorsed on 
 the bill. In Arkansas, 82 Florida, 88 Kentucky 84 and Mis- 
 
 54 Harriman v. State, 2 Greene (Iowa) 270; Andrews v. People, 117 III 
 195 ; Hartley v. People, 156 111. 234. It has been held that if this be omitted 
 it will not be fatal to the indictment: U. S. v. Shepard, 27 Fed. Cas. 
 1056; State v. Scott, 25 Ark. 107; People v. Naughton, 38 How. Pr. (N. 
 Y.) 430. 
 
 55 Act March 31, 1860, Sec. 27, P. L. 427. Memorial of Citizens Asso- 
 ciation, 8 Phila. (Pa.) 478. 
 
 56 U. S. v. Mundell, 27 Fed. Cas. 23; U. S. v. Helriggle, 26 Fed Cas. 
 258; U. S. v. Shackelford, 27 Fed. Cas. 1037; U. S. v. Hbllinsberry, 26 
 Fed. Cas. 345. The omission of the name of the prosecutor is not good 
 ground for a motion in arrest of judgment: U. S. v. Jamesson, 26 Fed. 
 Cas. 585 ; U. S. v. Lloyd, 26 Fed. Cas. 986 ; nor for general demurrer to the 
 indictment ; U. S. v. Sandford, 27 Fed. Cas. 952. 
 
 57 U. S. v. Dulary, 25 Fed. Cas. 922; U. S. v. Lloyd, 26 Fed. Cas. 986; 
 Tenorio v. Territory, i N. M. 279; King v. Lukens, I Dall. (Pa.) 5. And 
 see Wortham v. Com., 5 Randolph (Va.) 669. 
 
 58 Peter v. State, 3 How. 433; Cody v. State, Id. 27; Moore v. State, 
 13 Smedes & M. 259 ; Kirk v. State, Id. 406. 
 
 59 Statutes, Sec. 7207. 
 
 60 Code (1898), Sec. 7058. If omitted the objection may be raised at any 
 stage of the proceedings : Medaris v. State, 10 Yerg. 239. See, however, 
 Rodes v. State, 10 Lea. 414, where the court holds that the policy of the law 
 has changed and rules to the contrary. If the bill is founded on a present- 
 ment, the prosecutor's name may be omitted: State v. McCann, i Meigs 91. 
 A married woman is incompetent as a prosecutrix: Moyers v. State, 1 1 
 Humph. 40; Wattingham v. State, 5 Sneed, 64; and a husband is incompe- 
 tent as a prosecutor against his wife : State v. Tankersley, 6 Lea. 582. 
 
 61 Code, Sec. 3991. Haught v. Com. 2 Va. Cas. 3; Com. v. Dove, Id. 
 29. But see Thompson v. Com., 88 Va. 45. 
 
 62 State v . Brown, 10 Ark. 104 ; State v. Stanford, 20 Ark. 145. And see 
 State v. Harrison, 19 Ark. 565 ; State r. Scott, 25 Ark. 107 ; State r. Den-
 
 136 THE GRAND JURY. 
 
 souri 65 the prosecutor's name must be endorsed in cases of tres- 
 pass not amounting to felony. 
 
 In Alabama, 66 the statute requiring the name of the prosecu- 
 tor to be endorsed on the indictment has been held to be merely 
 directory and the omission of such endorsement will not in- 
 validate the indictment. 
 
 In North Carolina 67 the prosecuting officer may, in his dis- 
 cretion, endorse the governor of the state as prosecutor on in- 
 dictments whenever public interest may require it ; and in Mis- 
 sissippi 68 it has been held that the foreman of the grand jury 
 may be endorsed as the prosecutor. 
 
 In Massachusetts 69 the practice is in vogue of omitting the 
 names of witnesses from the indictment, the grand jury mak- 
 ing a general return of the names of the witnesses examined 
 by them but without in any manner indicating the bills upon 
 which they testified. In the case of Commonwealth vs. 
 Knapp, 70 counsel for the defendant applied to the court for a 
 list of the witnesses appearing before the grand jury. The 
 court granted the application, Judge Wilde, before whom the 
 application was made saying that such a request had never 
 been refused. 
 
 ton, 14 Ark. 343. The name of a prosecutor need not be endorsed on an 
 indictment for passing counterfeit coin : Gabe v. State, I Eng. 540. 
 
 63 Towle v. State, 3 Fla. 202. 
 
 64 Bartlett v. Humphreys, Hardin, 513; Com. v. Gore, 3 Dana 474. 
 And see Allen v. Com., 2 Bibb 210. 
 
 65 Rev. Code 1899, Sec. 2515. For cases within the statute see State v. 
 McCourtney, 6 Mo. 649; State v. Hurt, 7 Mo. 321; McWaters v. State, 10 
 Mo. 167; State v. Joiner, 19 Mo. 224. Cases not within the statute see State 
 v. Rogers, 37 Mo. 367; State v. Goss, 74 Mo. 592; Lucy v. State, 8 Mo. 134; 
 State v. Moles, 9 Mo. 694; State v. Roberts, 11 Mo. 510; State v. Al- 
 len, 22 Mo. 318; State v. Sears, 86 Mo. 169. The endorsement may be 
 written on the face of the bill : Williams v. State, 9 Mo. 270. 
 
 66 State v. Hughes, i Ala. 655 ; Molett v. State, 33 Ala. 408 ; Hubbard v. 
 State, 72 Ala. 164. 
 
 67 State v. English, I Murphy, 435. 
 
 68 King v. State, 5 How. 730. 
 
 69 i Whart. Cr. Law, Sec. 479. (7th ed.) 
 
 70 9 Pick. (Mass.) 498.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 1 37 
 
 In Mississippi, 71 the names of the witnesses need not be re- 
 turned with the indictment. 
 
 Before the witnesses summoned to attend the grand jury 
 are permitted to testify, they must be sworn. At common law 
 the witnesses were all sworn in open court at the one time, 72 
 and this practice is followed in the Federal courts at the present 
 time, the witnesses there being sworn by the clerk. 73 But this 
 method of procedure is open to the objection that the grand 
 jury have no accurate knowledge as to whether or not a par- 
 ticular witness has been sworn. 74 In some jurisdictions it is 
 customary to summon a justice of the peace as a grand juror, 
 and the witnesses are sworn in the grand jury room by him. 75 
 But in Pennsylvania 76 it is provided by the act of March 31. 
 1860: 
 
 "The foreman of any grand jury, or any member thereof, 
 is hereby authorized and empowered to administer the requi- 
 site oaths or affirmations to any witnesses whose names may 
 be marked by the district attorney on the bill of indictment." 
 
 The inconvenience resulting from swearing witnesses in 
 open court who, subsequently, were to appear before the grand 
 jury, and the ease with which an unsworn witness might pre- 
 sent himself and testify have caused similar statutes to be 
 adopted in almost every state. 
 
 The power of a grand juror to administer the oath 77 is lim- 
 
 71 King v. State, 5 How. 730. 
 
 72 In North Carolina this method of swearing witnessses has not been 
 abrogated by Act 1879, c. 12: State v. Allen, 83 N. C. 680. If the witness 
 is not sworn in open court the indictment will be quashed : State v . Kil- 
 crease, 6 S. C. 444; Oilman v. State, 20 Tenn. 59. 
 
 73 And see State v. White, 88 N. C. 698. It is not necessary that the 
 judge should be upon the bench if his absence be but temporary: Jetton 
 v. State, 19 Tenn. 192. 
 
 74 See Duke v. Sti.it, 20 Ohio St. 225, where the statute provided 
 against this contingency. 
 
 75 State v. Fassett, 16 Conn. 457. And see I Whart. Cr. Law, Sec. 488. 
 ( 7 th ed.) 
 
 76 Sec. 10, P. L. 433. 
 
 77 The witnesses may be sworn by the foreman of the grand jury: Bird 
 v. State, 50 Ga. 585 ; Siate v . White, 88 N. C. 698. In Tennessee he can- 
 not swear them in case of a felony: Ayrs v. State, 5 Cold. 26.
 
 138 THE GRAND JURY. 
 
 ited to those cases where the name may be marked on the bill 
 of indictment. 78 The presence of the district attorney in the 
 grand jury room during the examination of witnesses should, 
 however, make this clause free from controversy, for if the 
 name of the witness be not endorsed on the bill when he 
 comes to be sworn, it can then and there be done by that officer. 
 The question, however, did arise in the case of Jillard v. 
 Commonwealth 79 where the defendant sought to take advan- 
 tage of the swearing and examining of certain witnesses whose 
 names were not marked upon the indictment, by a plea in bar, 
 but it was held that at most it was only ground for a motion 
 to quash. 80 It need not appear by the indictment or otherwise 
 that the witnesses who testified before the grand jury were 
 sworn or affirmed. 81 The presumption is that the grand jury 
 complied with all the requirements of the law before finding a 
 true bill. 
 
 Where the grand jury find a true bill and one or more of the 
 witnesses upon whose testimony the bill was found were not 
 sworn, if objection be taken before the defendant pleads, the 
 indictment will be quashed. 82 If a motion to quash be not 
 made and the defendant pleads, the objection has been held to 
 have been waived and cannot be raised by a motion in arrest 
 
 78 Com. v. Price, 3 Pa. C C. Rep. 175; Jillard v. Com., 26 Pa. 169; Com. 
 v. Wilson, 9 Pa. C. C. Rep. 24. 
 
 79 26 Pa. 169; s. c. 13 L. I. (Pa.) 132. This case arose under the Act 
 of April 5, 1826, which is similar in its provisions to the Act of March 
 31, 1860, Sec. 10, P. L. 433. 
 
 80 Com. v. Wilson, 9 Pa. C. C. Rep. 24; Com. v. Schall, 9 Lane. Law 
 Rev. (Pa.) 332; Com. v. Frescoln, n Id. 161 ; State v. Roberts, 2 Dev. & 
 Bat. (N. C.) 540; King v. State, 5 How. (Miss.) 730; Oilman v. State, I 
 Humph. (Tenn.) 59. 
 
 81 Com. v. Salter, 2 Pears. (Pa.) 461; King v. State, 5 How. (Miss.) 
 730; Gilman v. State, I Humph. (Tenn.) 59. They will be presumed to 
 have been sworn : Com. v. Rovnianek, 12 Pa. Superior Ct. 86. 
 
 82 U. S. v. Coolidge, 25 Fed. Cas. 622; Joyner v. State, 78 Ala. 448; 
 Ashburn v. State, 15 Ga. 246; In re Lester, 77 Ga. 143. CONTRA State v. 
 Easton, 113 Iowa 516, upon the ground that the failure to administer the 
 oath was not one of the grounds of objection designed by the statute.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 139 
 
 of judgment. 83 This may now be considered as the English 
 rule although the decisions have not been uniform. 84 In Rex 
 v. Dickinson, 88 where none of the witnesses before the grand 
 jury had been sworn at all, while a motion in arrest of judg- 
 ment was overruled, the twelve judges unanimously made ap- 
 plication for a pardon. 
 
 While it is usual for the district attorney to conduct the 
 examination, any of the grand jurors may fully interrogate 
 a witness. 88 But it is not lawful for one witness to be interro- 
 gated by another witness who may happen to be in the room, 
 nor will more than one witness at a time be permitted to be in 
 the grand jury room and an indictment will be quashed if it be 
 shown that this was permitted. 87 
 
 An indictment will likewise be quashed where a person, 
 other than a grand juror is present in the grand jury room 
 during their deliberations 88 and participates in the voting. 89 
 But where a stenographer in the employ of the district attorney 
 was present and took notes of the testimony of a witness, it 
 was held that such stenographer was an assistant to the district 
 attorney and the court refused to quash the indictment. 80 
 
 83 Rex v. Dickinson, Russ. & Ry. Crown Cases 401 ; Reg. v. Russell, I 
 C & M. 247; i Whart. Cr. Law, Sec. 489 (7th ed) 
 
 84 Id. 
 
 85 Russ. & Ry. Crown Cas. 401. 
 
 86 An indictment will not be set aside because the clerk of the t,Tand 
 jury was a practicing attorney and asked the witness some questions at 
 the request of the foreman : State v. Miller, 95 Iowa 368. 
 
 87 U. S. v. Edgerton, 80 Fed. Rep. 374; Com. v. Dorwart, 7 Lane. Bar 
 (Pa.) 121 ; And see State v. Fertig, 98 Iowa, 139. CONTRA Bennett v. 
 State, 62 Ark. 516; Mason v. State, 81 S. W. 718; State v. Wood, 84 N. W. 
 
 503- 
 
 88 State v. Watson, 34 La. Ann. 669 ; State v. Clough, 49 Me. 573 ; Wil- 
 son v. State, 70 Miss. 595; People v. Metropolitan Traction Co., 50 N. Y. 
 Sup. 1117; Rothschild v. State, 7 Tex. App. 519; Doss v. State, 28 Id. 
 506. And see Sims v. State, 45 S. W. 705. A judgment will not be re- 
 versed upon the ground that a stranger was in the room during the delib- 
 erations of the grand jury where no objection was made to such irregu- 
 larity before trial: State v. Justus, II Ore. 178. 
 
 89 State v. Fertig, 98 Iowa 139 ; Territory v. Staples, 26 Pac. 166 ; State 
 v. Tilly, 8 Baxt. (Tenn.) 381. 
 
 90 U. S. v. Simmons, 46 Fed. Rep. 65; State v. Brewster, 42 L. R. A.
 
 I4O THE GRAND JURY. 
 
 Neither the defendant nor any of his witnesses will be per- 
 mitted to appear before the grand jury. 01 Upon this point 
 Chief Justice McKean thus expresses himself : 92 
 
 "Were the proposed examination of witnesses on the part of 
 the defendant to be allowed, the long established rules of law 
 and justice would be at an end. It is a matter well known and 
 well understood, that by the laws of our country, every ques- 
 tion which affects a man's life, reputation or property, must be 
 tried by twelve of his peers ; and that their unanimous verdict 
 is alone, competent to determine the fact in issue. If then you 
 undertake to inquire, not only upon what foundation the 
 charge is made, but, likewise, upon what foundation it is de- 
 nied, you will in effect usurp the jurisdiction of the petty jury, 
 you will supersede the legal authority of the court, in judging 
 of the competency and admissibility of witnesses, and having 
 thus undertaken to try the question, that question may be de- 
 termined by a bare majority, or by a much greater number of 
 your body, than the twelve peers prescribed by the laws of the 
 land. This point has, I believe, excited some doubts upon 
 former occasions; but those doubts have never arisen in the 
 mind of any lawyer, and they may easily be removed by a 
 proper consideration of the subject. For the bills, or present- 
 ments, found by a grand jury, amount to nothing more than 
 an official accusation, in order to put the party accused upon his 
 trial: till the bill is returned, there is therefore, no charge 
 from which he can be required to exculpate himself; and we 
 know that many persons against whom bills were returned, 
 have been afterwards acquitted by a verdict of their coun- 
 try." 
 
 ye' 
 
 444; State "v. Bates, 148 Ind. 610; Thayer v. State, 138 Ala. 39; And see 
 Courtney v. State, 5 Ind. App. 356. CONTRA State v. Bowman, 90 Me. 363. 
 And see as to the presence of other officers in the grand jury room: State 
 v. Kimball, 29 Iowa 267; Richardson v. Com., 76 Va. 1007; State v. District 
 Court, 55 Pac. 916; Cross v. State, 78 Ala. 430; Bennett v. State, 62 Ark. 
 516; Raymond v. People, 30 Pac. 504; State v. Bacon, 77 Miss. 366. See 
 as to presence of interpreter: People v. Ramirez, 56 Calif. 533; People v. 
 Lem Deo, 132 Calif. 199. 
 
 91 Supra. 103. CONTRA In re Morse, 87 N. Y. Sup. 721. 
 
 92 Res. v. Shaffer, i Dall. (Pa.) 236.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 14! 
 
 The same question was considered by Judge Addison 93 
 whose opinion is well expressed in the following language: 
 "But if witnesses, brought forward by the accused person, 
 were to be heard in his defence before the grand jury, and they 
 should find the charge true, this would approach so near to 
 a conviction, that the traversing of the indictment afterwards, 
 and the trial by the traverse jury, would appear nugatory, and 
 might be abolished. The finding of the bill would raise such 
 an opinion and presumption of the guilt of the accused per- 
 son, as must be a bias in the minds of all men ; and the prisoner 
 could not come before the traverse jury with a hope of that im- 
 partiality in his judges, which the constitution of a jury trial 
 supposes him to expect." 
 
 The duty of the grand jury is to determine whether or not 
 the evidence presented by the state raises a prima facie pre- 
 sumption of the guilt of the defendant, or, in other words, is the 
 evidence for the prosecution sufficient to sustain a conviction. 
 If it is, then a true bill should be returned; if not, the bill 
 should be ignored. With this intermediate stage of the prose- 
 cution a defendant has no concern except that it shall be ac- 
 cording to law. He has secured to him the constitutional right 
 of trial by jury and not trial by grand jury, and until he shall 
 have been indicted he is not called upon to make defence. 
 Until he is thus called upon to face a petit jury he is nehAer en- 
 titled nor will he be permitted to present any evidence in his 
 own behalf. 
 
 In the Federal courts it was formerly held that the defend- 
 ant's witnesses might go before the grand jury with the con- 
 sent of the district attorney ; 94 but it is now held that the dis- 
 trict attorney cannot give permission to the defendant to send 
 witnesses in his own behalf before the grand jury. 95 Only in 
 the event that the testimony of any of defendant's witnesses is 
 essential to make out a case for the government will this rule 
 be departed from. 
 
 In the hearing of the testimony of the witnesses appearing 
 
 93 Addison, App. 41. 
 
 94 U. S. v. White, 28 Fed. Cas. 588. 
 
 95 Supra, 103.
 
 142 THE GRAND JURY. 
 
 before them, the grand jury should be governed by the ordi- 
 nary rules of evidence and no indictment should be found upon 
 evidence, which, before the petit jury and uncontradicted, 
 would not support a conviction. 96 It is the duty of the district 
 attorney to permit the grand jury to receive DO incompetent 
 evidence, 97 but the restriction which prohibits him from taking 
 any part in their proceedings after adducing all the evidence 
 for the government, would likewise prevent him from express- 
 ing his opinion as to the insufficiency of the evidence to war- 
 rant a conviction. While it is the duty of the district attorney 
 not to proceed further when he knows the evidence insufficient 
 to convict, it is at the same time the exclusive province of 
 the grand jury to determine the sufficiency of the evidence to 
 justify the indictment. Should an indictment be found upon 
 insufficient evidence, it is within the province of the district 
 attorney to enter a nolle pros which he may do with leave of 
 court. In this manner he would leave the grand jurors to ar- 
 rive at their own conclusions without interference from him, 
 while at the same time he could observe the duty imposed upon 
 him by his oath, and relieve the defendant from an unsupported 
 accusation. But while he expresses no opinion as to the suffi- 
 ciency or insufficiency of the evidence to justify the finding 
 of a true bill, he should advise them as to the legal require- 
 ment. 
 
 The grand jury should, therefore, receive only the best evi- 
 dence which can be procured, being admissable evidence before 
 the petit jury. 98 They should not receive hearsay or irrelevant 
 
 96 Supra, 105, 141 ; People v . Stern, 68 N. Y. Sup. 732 ; People v. Har- 
 mon, 69 N. Y. Sup. 511. 
 
 97 2 Hawk. PI. C. c. 25, s. 138-139. Davi^' Precedents of Indictments, 25 ; 
 I Whart. Cr. Law, Sec. 493 (7th ed.) ; Denby's Case, i Leach C. C. 514. 
 
 98 i Chitty Cr. Law, 319; i Whart. Cr. Law, Sec. 493 (7th ed.) ; U. S. v. 
 Reed, 27 Fed. Cas. 727 ; U. S. v. Kilpatrick, 16 Fed. Rep. 765 ; Sparrenberger 
 v. State, 53 Ala. 481 ; Washington v. State, 63 Ala. 189; Bryant v. State, 79 
 Ala. 282 ; People v. Sellick, 4 N. Y. Cr. Rep. 329 ; People v. Strong, i Abb. 
 Prac. Rep. (N. S.) 244. The court will not pass upon the sufficiency of the 
 evidence heard by the grand jury: Stewart v. State, 24 Ind. 142; Com. v. 
 Minor, 89 Ky. 555; State v. Lewis, 38 La. Ann. 680. And see U. S. v. 
 Cobban, 127 Fed. Rep. 713; State r. Fowler, 52 Iowa 103; People v.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 143 
 
 evidence, but if they do receive it, this will not of course be 
 sufficient ground for quashing the indictment," and cannot be 
 availed of on motion in arrest of judgment. 100 
 
 In North Carolina 101 it was held that an indictment would 
 be quashed where it was found upon the testimony of interested 
 or incompetent witnesses. 
 
 Where a paper is sent before the grand jury it should be 
 relevant to the matter then under consideration, although its 
 materiality may not appear. 102 When a subpoena duces tecum 
 has issued, the court will decide whether the books, papers 
 and documents ordered to be produced are relevant and ma- 
 terial, and whether or not they are privileged communica- 
 tions. 108 
 
 Where the grand jury suspect that a witness has been tam- 
 pered with by the prisoner, they will not be permitted to re- 
 ceive in evidence his written examination before the commit- 
 ting magistrate in lieu of his parol testimony. 104 
 
 An indictment found upon the evidence of a person who is 
 an incompetent witness by reason of his conviction of an in- 
 
 Lauder, 82 Mich. 109; State v. Logan, i Nev. 509; Hope v. People, 83 N. 
 Y. 418; Morrison v. State, 41 Tex. 516; Cotton v. State, 43 Tex. 169; 
 Terry v. State, 15 Tex. App. 66; Carl v. State, 28 So. 505; Hall v. State, 
 32 So. 750; Mclntire v. Com., 4 S. W. I. But see People v. Metropolitan 
 Traction Co., 50 N. Y. Sup. 1117. 
 
 99 U. S. v. Jones, 69 Fed. Rep. 973; State r. Fasset, 16 Conn. 457; Peo- 
 ple v. Lauder, 82 Mich. 109; State v. Dayton, 23 N. J. Law 49; People v. 
 Molineux, 58 N. Y. Sup. 155; Wadley v. Com. 35 S. E. 452; Buchanan v. 
 State, 52 S. W. 769; Territory v. Pendry, 22 Pac. 760. But see CONTRA 
 State v. Robinson, 2 Lea (Tenn.) 114; People v. Metropolitan Traction 
 Co., 50 N. Y. Sup. 1117. 
 
 100 Com. v. Spattenhover, 8 Luz. Leg. Reg. 101. In this case the de- 
 fendant's wife was called as a witness against her husband before the 
 grand jury which found the indictment. 
 
 101 State v. Fellows, 2 Hayw. 340. 
 
 102 U. S. v. Aaron Burr, 25 Fed. Cas. 68. 
 
 103 U. S. v. Hunter, 15 Fed. Rep. 712; Hartranft's Appeal, 85 Pa. 433. 
 
 104 Denby's Case, I Leach C. C. 514. In California the depositions of 
 witnessses taken before a magistrate upon a criminal charge may be used 
 before a grand jury: People v. Stuart, 4 Calif. 218. And see State v. 
 Marshall, 74 N. W. 763 ; Hope v. People, 83 N. Y. 4ia
 
 144 THE GRAND JURY. 
 
 famous crime will be quashed 105 as will one founded upon the 
 testimony of a witness who has been convicted of perjury. 106 
 But where an indictment was found upon the uncorroborated 
 evidence of an accomplice the court refused to quash. 107 The 
 court has also refused to quash where an indictment has been 
 found after the defendant voluntarily testifies before the grand 
 jury. 108 
 
 In England an indictment for treason will be quashed unless 
 it is founded on the evidence of two witnesses to the same overt 
 act 109 but the rule is otherwise in the Federal courts. 110 
 
 It would seem, however, where the grand jury find an 
 indictment either upon the evidence of a single witness who is 
 incompetent, or after hearing the evidence of more than one 
 witness, one of whom is incompetent, that it should be quashed 
 if these facts be made to appear. 111 While an opposite view 
 
 105 2 Hawk. PI. C. Ch. 25, Sec. 145; I Whart. Cr. Law, Sec. 493. (7th 
 ed.) 
 
 106 The Penna. Act of May 23, 1887, Sec. 2, P. L. 158, provides that a 
 person convicted of perjury shall not be a competent witness for any pur- 
 pose except in cases of violence done or attempted to be done to his per- 
 son or property. 
 
 107 King v. Dodd., i Leach C. C. 155. 
 
 108 People v. King, 28 Calif. 265; State v. Trauger, 77 N. W. 336; 
 People v. Willis, 52 N. Y. Sup. 808 ; Lindsay v. State, 24 Ohio Cir. Ct. Rep. 
 I ; State v. Comer, 157 Ind. 611 ; People v. Lauder, 82 Mich. 109; State v. 
 Hawks, 56 Minn. 129. And see People v. Hayes, 59 N. Y. Sup. 761. 
 CONTRA People v. Singer, 18 Abb. N. C. 96; State v. Froiseth, 16 Minn. 296. 
 
 109 i East's PI. C. 128. In i Chitty Cr. Law 320, it is said that it will 
 be sufficient if there is one witness to one overt act and another witness 
 to another overt act. 
 
 no The Constitution of the United States, Art III, Sec. 3, provides, 
 "No person shall be convicted of treason unless on the testimony of two 
 witnesses to the same overt act." . . At common law one witness was 
 sufficient to support a conviction in cases of treason : I East PL C. 128. 
 
 in People v. Price, 2 N. Y. Sup. 414; People v. Briggs, 60 How. Pr. 
 (N. Y.) 17; State v. Lanier, 90 N. C. 714. This common law principle is 
 recognized in New York by the provisions of Cr. Code, Sec. 256, providing 
 "the grand jury can receive none but legal evidence," and in People v. 
 Metropolitan Traction Co., 50 N. Y. Sup. 1117, the indictment was dis- 
 missed upon the ground that the grand jury had been allowed to receive 
 illegal evidence.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 145 
 
 has been taken in some of the states, 112 it can hardly be said 
 that their position is well founded in reason. If the grand 
 jury should not be permitted to receive evidence inadmissable 
 before a petit jury, if they do receive it the indictment should 
 be quashed upon the same theory which prompts the award 
 of a new trial when the trial judge against the objection of 
 counsel permits an incompetent witness to testify. If, as the 
 courts have said, it is impossible to say what effect the testi- 
 mony of the incompetent witness may have had toward influ- 
 encing the verdict of the petit jury, 113 which hears the evidence 
 in the presence of the judge, how much more strongly the same 
 reason applies where an incompetent witness testifies before 
 the grand jury and his evidence is heard in secret. 
 
 The same reason which has moved the court to quash an in- 
 dictment when it was based upon the testimony of a single 
 person and he incompetent, 114 should also apply in cases where 
 there is more than one witness some of whom are and one or 
 more of whom are not competent. It may well be that the tes- 
 timony of the incompetent witness formed the principal evi- 
 dence against the defendant, or it may have been the necessary 
 connecting link in the chain of circumstances, without which 
 the grand jury would have ignored the bill, and it would be 
 manifestly unjust to compel a defendant to answer to an in- 
 dictment found in such a manner. That the tendency of the 
 cases in general may be said to accord with this view will be 
 seen in the fact that although other witnesses were examined 
 at the same time, an indictment was quashed where the 
 defendant was compelled to testify against himself, 118 and 
 
 112 Bloomer v. State, 3 Sneed (Tenn.) 66; State v. Tucker, 20 Iowa 
 508; Com. v. Minor, 89 Ky. 555. And see i Whart. Cr. Law, Sec. 493 (7th 
 ed.) ; U. S. v. Brown, 24 Fed. Cas. 1273; U. S. v. Smith, 27 Fed. Cas. 1186. 
 
 113 Grier v. Homestead Borough, 6 Pa. Superior Ct. 542; Rahlfing v. 
 Heidrick, 4 Phila. (Pa.) 3; Railway Co. v. Johnson, 55 Kan. 344; Mussey 
 v. Mussey, 68 Me. 346; Hamblett v. Hamblett, 6 N. H. 333; Sherman v. 
 Railroad Co., 106 N. Y. 542; Penfield v. Carpenter, 13 Johns. (N. Y.) 350. 
 
 114 State v. Fellows, 2 Hayw. (N. C.) 340; and see Lennard v. State, 
 30 S. E. 780. 
 
 115 U. S. v. Edgerton, 80 Fed. Rep. 374; State v. Froiseth, 16 Minn. 
 296; State v. Gardner, 88 Minn. 130. And see Counselman v. Hitchcock, 
 
 10
 
 146 THE GRAND JURY. 
 
 where an unsworn witness testified before the grand jury. 116 
 The ground upon which the contrary view is based is that 
 the court will not inquire whether or not the evidence was suf- 
 ficient to justify the finding. 117 But this can hardly be said 
 to be either an accurate or an adequate reason. If the wit- 
 ness be incompetent, then to sustain the indictment the court 
 must assume that it was found upon the evidence of the com- 
 petent witnesses only and that the evidence of the incompetent 
 witness was disregarded ; if this be not assumed, then we have 
 the condition of an indictment being sustained although 
 founded wholly or in part on incompetent evidence. While in 
 sustaining the indictment all intention to weigh the evidence 
 is disclaimed, in Assuming the sufficiency of the evidence the 
 court necessarily weighs it in favor of the commonwealth. 
 If the sufficiency of the evidence be not assumed, then the court 
 should not permit the indictment to stand. 118 
 
 After the grand jury have had all the evidence in the par- 
 ticular case under investigation presented to them, they are 
 then prepared to consider the bill and endorse thereon their 
 finding. They may find a true bill as soon as they have heard 
 enough evidence to convince them that a prima facie case has 
 been made out but they must not ignore a bill until they have 
 
 142 U. S. 547; State v. Frizell, in N. C. 722. CONTRA U. S. v. Brown, 24 
 Fed. Cas. 1273. In State v. Krider, 78 N. C. 481, the indictment was 
 quashed where the grand jury examined each of two persons against 
 the other in order to obtain a true bill against both. 
 
 116 U. S. v. Coolidge, 25 Fed. Cas. 622. In Com. v. Price, 3 Pa. C. C. 
 Rep. 175, where a witness testified before the grand jury without being 
 legally sworn, Judge Sittser quashed the indictment, saying: "We can- 
 not tell whether the grand jury found the indictment upon the testimony 
 of this witness alone or upon that of others, nor can we inquire into that." 
 
 117 Turk v. State, 7 Hammond (Ohio) part 2, p. 240; People v. 
 Hulbut, 4 Denio (N. Y.) 133; State v. Logan, i Nev. 509; State v. 
 Boyd, 2 Hill (S. C.) 288. In New York even though illegal evidence 
 was introduced before the grand jury, if legal evidence was also 
 presented, which if unexplained, would warrant a conviction, the in- 
 dictment must be sustained: People v. Winant, 53 N. Y. Sup. 695. See 
 people v. Metropolitan Traction Co., 50 N. Y. Sup. 1117; People v. 
 Mblineux, 58 N. Y. Sup. 155. 
 
 118 See remarks of Judge Sittser in Com. v. Price, 3 Pa. C. C. Rep. 175.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 147 
 
 examined all the witnesses, for the last examined may supply 
 the evidence necessary to make out the case. 119 If twelve or 
 more, but not exceeding twenty-three, agree to find the bill, 
 the return was anciently at common law "billa vera," but now 
 the return is expressed in English, "a true bill." 120 If less than 
 twelve agree to find the bill, it is then said to be ignored, and 
 while anciently the return was "ignoramus," it is now "ig- 
 nored," or what is a better return "not found." 121 But if an 
 indictment be found with less than twelve grand jurors con- 
 curring, the finding is bad 122 and a motion in arrest of judg- 
 ment will be sustained. 123 
 
 A grand jury may find a true bill as to one or more counts 
 of an indictment, 124 but the finding is bad if they return a true 
 bill as to part of a count and ignore the balance of the same 
 
 119 Com. v. Ditzler, i Lane. Bar. (Pa.) Aug. 28, 1869. After an indict- 
 ment has been dismissed and the case again referred to the grand jury, they 
 need not hear all the witnesses: Mclntire v. Com., 4 S. W. I. 
 
 120 Where a bill is erroneously returned endorsed, "a true bill/' it may 
 be shown on motion to quash that the grand jury voted to ignore the bill 
 and their clerk was directed to endorse it "not a true bill ;" State v. Hor- 
 ton, 63 N. C. 595. 
 
 121 4 Bl. Com. 305; I Chitty Cr. Law 324, 
 
 122 People v . Roberts, 6 Calif. 214 ; People v. Butler, 8 Id. 435 ; People 
 v, Gatewood, 20 Id. 146; People v. Hunter, 54 Id. 65; Lung's Case, i Conn. 
 428; State v. Ostrander, 18 Iowa, 435; State v. Shelton, 64 Iowa, 333; Don- 
 ald v. State, 31 Fla. 255; State v. Copp, 34 Kan. 522; Wells v. Com. 15 Ky. 
 Law Rep. 179; Low's Case, 4 Greenl. (Me.) 4391 Barney v. State, 12 
 Smedes & M. (Miss.) 68; State v. McNeill, 93 N. C. 552; State v. Barker, 
 107 Id. 913; Turk v. State, 7 Ham. (Ohio) part 2, p. 240; In re Citizens 
 Assn., 8 Phila. (Pa.) 478; State v. Williams, 35 S. C 344; State 
 v. Brainerd, 56 Vt. 532; Fitzgerald v. State, 4 Wis. 395. In English 
 v. State, 31 Fla. 340, the court held that Stat. 4015, Sec S 
 (1891) was unconstitutional upon the ground that it authorized the 
 finding of an indictment upon the concurrence of eight grand jurors. 
 And see State v. Hartley, 40 Pac. 372. A grand jury of seven persons 
 does not conflict with amendments V and XIV of the U. S. Constitution : 
 Hausenfluck v. Com. 85 Va. 702. 
 
 123 2 Hawk. PI. C. Ch. 25, Sec. 16; 2 Hale PI. C. 161 ; R. S. U. S., Sec 
 1021 ; Clyncard's Case, Cro. Eliz. 654; Sayer's Case, 8 Leigh (Va.) 722. 
 
 124 i Chitty Cr. Law 323; i Whart. Cr. Law., Sec. 504 (7th ed.) ; Rex. v. 
 Fieldhouse, I Cowper 325.
 
 148 THE GRAND JURY. 
 
 count: 125 and if the bill charges more than one person, they 
 may find the bill true as to some of the defendants and ignore 
 it as to the balance. 126 And where the grand jury upon a bill 
 for murder find "billa vera se defendo" the finding is bad ; 127 
 and so where the bill charges murder and the jury find for 
 manslaughter only; 128 or where the finding avers that the 
 offense was committed while the defendant was insane. 129 
 Where the finding is incomplete or insensible it is bad. 130 
 
 The finding of the grand jury is then endorsed on the bill 
 accordingly as they may have acted, and this return must be 
 signed by the foreman 131 or the foreman pro tern., 132 as the 
 case may be. In some states it is not essential to the validity 
 of the indictment that it should be signed by the foreman. 133 
 
 125 i Chitty Cr. Law 322; i Whart. Cr. Law, Sec. 504 (7th ed.) ; 2 Hale 
 PL C 162; King v. Ford, Yelv. 99; Shouse v. Com. 5 Pa. 83; Com. v. 
 Keenan, 67 Pa. 203; Com. v. Gressly, 12 Lane. Bar (Pa.) 52; State v. 
 Wilhite, ii Humph. (Tenn.) 602; State v. Creighton, i N. & McC. (S. C.) 
 256; State v. Wilburne, 2 Brevard (S. C.) 296. And see Hall's Case, 3 
 Gratt (Va.) 593. 
 
 126 i Chitty Cr. Law 323; 2 Hale PI. C. 158; i Whart. Cr. Law Sec. 
 504 (7th ed.) 
 
 127 Powle's Case, 2 Rolle Rep. 52. In U. S. v. Elliott, 25 Fed. Cas. 
 1003, the grand jury made a presentment that the defendant acted in self- 
 defence and the court thereupon ordered his discharge from custody. 
 
 128 2 Hale PL C. 158; State v. Cowan, i Head (Tenn.) 280; Compare 
 People v. Nichol, 34 Calif. 211, where on an indictment for murder, the 
 grand jury found a true bill for murder in the second degree. 
 
 129 Reg. v. Hodges, 8 Car. & P. 195. 
 
 130 2 Hawk. PL C. Ch. 25, Sec. 2 ; i Chitty Cr. Law 323 ; i Whart. Cr. 
 Law, Sec. 505 (7th ed.) ; R. v. Cooke, 8 C. & P. 582; U. S. v. Levally, 36 
 Fed. Rep. 687; Frisbie v. U. S., 157 U. S. 160. 
 
 131 U. S. v. Plumer, 27 Fed. Cas. 561 ; Com. v. Sargent, Thach. Cr. Cas. 
 116; Com. v. Ditzler, i Lane. Bar. (Pa.) Aug. 28, 1869; Com. v. Diffen- 
 baugh, 3 Pa. C. C. Rep. 299. That the foreman's name was signed by the 
 clerk will not invalidate the indictment, it appearing that it was done at the 
 foreman's request and in his presence : Benson v. State, 68 Ala. 544. 
 
 132 White v. State, 93 Ga. 47; State v. Collins, 6 Baxt. (Tenn.) 151. 
 
 133 McGuffie v. State, 17 Ga. 497; Com. v. Ripperdon, Litt. Sel. Cas. 
 (Ky.) 194; Com. v. Walters, 6 Dana (Ky.) 290; State v. Cox, 6 Ired. (N. 
 C.) 440; State v. Calhoon, I Dev. & Bat. (N. C.) 374; State v. Creighton, 
 i N. & McC. (S. C.) 256; Pinson v. State, 23 Tex. 579; State v. Flores, 33 
 Tex. 444; Robinson v. State, 24 Tex. App. 4; State v. Hill, 35 S. E. 831.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 149 
 
 but the ruling in these cases is not to be commended. It is at 
 variance with the common law rule, and if the signature be 
 omitted, there is nothing upon the bill to attest the fact that 
 the finding was duly authorized or placed thereon by a com- 
 petent person. 
 
 A variance between the name of the foreman as shown by 
 the record of his appointment and by the attestation of the 
 finding on the bill is, in general, immaterial. 134 It is not ma- 
 terial where the signature of the foreman may be placed, 185 
 and if he omit to add his official title and merely affix his signa- 
 ture to the finding it has been held that such endorsement can 
 only relate to his official act as foreman and the indictment 
 will be sustained. 136 And likewise if he sign his surname and 
 use the initials of his Christian name only 137 or abbreviate his 
 Christian name. 138 
 
 The omission of the words "a true bill" has been held in 
 some states not fatal to the indictment 139 although the weight 
 of authority is to the contrary, if advantage be taken, before 
 verdict, of the omission of such finding. 140 
 
 134 State v. Stedman, 7 Port. (Ala.) 495; State v. Taggart, 38 Me. 298; 
 Com. v. Hamilton, 15 Gray (Mass.) 480; Geiger v. State, 25 Ohio Cir. Ct. 
 Rep. 742; State v. Calhoon, I Dev. & Bat. (N. C.) 374; State v. Collins, 3 
 Dev. (N. C) 117. And see People v. Roberts, 6 Calif. 214; Deitz v. State, 
 123 Ind. 85; Green v. State, 4 Pickle (Tcnn.) 614. 
 
 135 Goodman v. People, 90 111. App. 533; State v. Bowman, 103 Ind. 69; 
 Overshiner v. Com. 2 B. Mon. (Ky.) 344; Blume v. State, 56 N. E. 771 ; 
 State P. Shippey, 10 Minn. 223. 
 
 136 McGuffie v. State, 17 Ga. 497; State v. Chandler, 2 Hawks (N. C.) 
 439; State v. Brown, 31 Vt. 602. And see State v. Sopher, 35 La. Ann. 975 ; 
 Whiting v. State, 48 Ohio St. 220. 
 
 137 Wassels v. State, 26 Ind. 30; Zimmerman v. State, 4 Ind. App. 583; 
 State -v. Groome, 10 Iowa 308 ; State v. Granville, 34 La. Ann. 1088 ; Com. f . 
 Gleason, no Mass. 66. 
 
 138 Studstill v. State, 7 Ga. 2; State v. Folke, 2 La. Ann 744. 
 
 139 Com. v. Smyth, 11 Cush. (Mass.) 473; State v. Freeman, 13 N. H. 
 488; Price v. Com. 21 Grat. (Va.) 846; White v. Com. 29 Id. 824; State v. 
 Hill, 35 S. E. 831. And see State v. Magrath, 44 N. J. Law 227, where the 
 indictments were drawn after the investigation by the grand jury. 
 
 140 Alden v. State, 18 Fla. 187; Gardiner v. People, 3 Scam. (111.) 83; 
 Nomaque v. People, Breese (111.) 109; Johnson v. State, 23 Ind. 32; 
 Cooper v. State, 79 Ind. 206; State v. Buntin, 123 Ind. 124; Denton v.
 
 I5O THE GRAND JURY. 
 
 It has been said "the endorsement is parcel of the indict- 
 ment, and the perfection of it, 141 but the name of the offence 
 thus endorsed thereon forms no part of the finding of the 
 grand jury. 142 
 
 The foreman must thus attest the return even though he 
 voted in a manner opposite to the majority of the jurors. And 
 it was held to be proper for him to so attest the return, not- 
 withstanding he had been directed by the court to take no part 
 in the consideration of that particular bill. 143 
 
 It is no ground of objection to the finding of the grand jury 
 that they had at first voted to ignore the bill and afterwards 
 reconsidered their decision and without hearing any additional 
 evidence voted to return a true bill. 144 After the grand jury 
 have found a true bill and presented it, they cannot thereafter 
 vote to ignore the bill and recall it. 145 
 
 While it is the usual course, if the bill be found, for the 
 foreman to endorse thereon "a true bill" with his name and 
 "foreman" annexed, it has been held a sufficient return where 
 the endorsement was simply "a bill" without the word 
 "true," 146 and signed by the foreman. The endorsement of 
 the words "true bill" omitting the letter "a" is likewise a suf- 
 
 State, 155 Ind. 307; Com. v. Walters, 6 Dana (Ky.) 290; Oliver v. Com., 
 95 Ky. 372; State v. Logan, 104 La. 254; Webster's Case, 5 Greenl. (Me.) 
 432; Spratt v. State, 8 Mo. 247; State v. McBroom, 127 N. C. 528; Gunkle 
 v. State, 6 Baxt. (Tenn.) 625; Bird v. State, 103 Tenn. 343. 
 
 141 King v. Ford, Yelv. 99. See State v. Thacker, 38 S. E. 539. 
 
 142 State v. Rohfrischt, 12 La. Ann. 382; State v. Valere, 39 Id. 1060; 
 State v. DeHart, 109 La. 570; Collins v. People, 39 111. 233. And see 
 Cherry v. State, 6 Fla. 679; Humpeler v. People, 92 111. 400; Com. v. 
 English, 6 Bush (Ky.) 431; Thompson v. Com., 20 Gratt. (Va.) 724. 
 
 143 State v. Lightfoot, 78 N. W. 41. 
 
 144 U. S. v. Simmons, 46 Fed. Rep. 65. And see State v. Clapper, 59 
 Iowa 279; State v. Parrish, 8 Humph. (Tenn.) 80; State v. Brown, 81 N. 
 C. 568. In People v. Sheriff of Chautauqua County, n Civ. Proc. Rep. 
 (N. Y.) 172, it was held that the grand jury had full control of every 
 charge presented for its investigation until its final discharge, and before 
 that time may reconsider and change any of its former acts. 
 
 145 Fields v. State, 25 So. 726. And see In re Mbrse, 87 N. Y. Sup. 
 721. 
 
 146 Sparks v. Com., 9 Pa. 354.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 
 
 ficient return. 147 And it has been held that judgment would 
 not be arrested because the words "a true bill" were printed 
 on the back of the bill when it was sent to the grand jury 
 room. 148 
 
 Where there is no endorsement of their finding and the name 
 of the foreman only is written thereon, or where the return is 
 not signed at all, a motion to quash the indictment or a plea in 
 abatement will be sustained. 149 The court, however, has re- 
 fused to arrest the judgment where the endorsement, instead of 
 being upon the bill, was upon the envelope in which the bill was 
 enclosed. 150 
 
 Where a statute sets forth the manner in which the foreman 
 of the grand jury shall endorse the indictment, if the act be 
 not substantially complied with, the indictment must be 
 quashed. 181 
 
 The indictment never alleges the organization and action of 
 the grand jury. The signature of the foreman vouches for the 
 regularity of the proceedings after the jury is empaneled, and 
 the records of the court show the venire 162 and the appoint- 
 ment of the foreman. 153 It has been held that the indictment 
 need not show when it was found, 154 although it is now the 
 usual practice for the foreman to endorse upon the bill the 
 date of its finding. 
 
 Where a bill contained ten counts and the grand jury found 
 
 147 Martin v. State, 30 Neb. 507; State v. Elkins, Meigs, (Tenn.) 109; 
 State v. Davidson, 12 Vt. 300. 
 
 148 Com. v. Usner, 7 Lane. (Pa.) 57. And see Tilly v. State, 21 Fla. 
 242; State v. Hogan, 31 Mo. 342; State v. Elliott, 98 Mo. 150; State v. 
 Williamson, 4 Weekly Law Bulletin, (Ohio) 279. 
 
 149 U. S. v. Levally, 36 Fed. Rep. 687; Frisbie v. U. S. f 157 U. S. i6a 
 
 150 Burgess v. Com. 2 Va. Cas. 483. 
 
 151 Cooper v. State, 79 Ind. 206; State v. Bowman, 103 Ind. 69; Strange 
 v. State, no Ind. 354. 
 
 152 U. S. v. Laws, 26 Fed. Cas. 892. And see Conner v. State, 4 Yerg. 
 (Tenn.) 137; State v. Davidson, 2 Cold (Tenn.) 184. 
 
 153 If the indictment be returned endorsed by one of the grand jurors 
 as foreman, the record need not show his appointment as such : Yates v. 
 People, 38 111. 527. 
 
 154 Burgess v. Com., 2 Va. Cas. 483; CONTRA Com. v. Schall, 9 Lane 
 Law Rev. (Pa.) 332.
 
 152 THE GRAND JURY. 
 
 a true bill and returned it with the endorsement "a true bill 
 on both counts," the finding was held to be bad. 155 
 
 If the grand jury return an indictment against a defendant 
 by the initials of his Christian name only, a plea in abate- 
 ment will be sustained unless the indictment shows that his 
 name is not known to them otherwise than as set out. 156 And 
 where the grand jury set forth in the indictment that the 
 names of the persons from whom the defendant had received 
 certain contributions were unknown to them, but on the trial 
 it appeared that the names were known to the grand jurors, the 
 court directed a verdict for the defendant. 157 
 
 Should they happen to ignore a bill, a new bill charging 
 the same offence may be submitted to the same or a subsequent 
 grand jury; but in England a new bill cannot be sent before 
 the same grand jury although it may be found by a subsequent 
 one. 158 
 
 The practice of submitting a new bill to the same or a sub- 
 sequent grand jury has nothing in it to commend it, while it 
 has been very severely criticised. That such, however, is the 
 law is undoubted 159 and Mr. Justice Woodward says, 100 "If 
 
 155 R. v. Cooke, 8 Car. & P. 582. See People v. Hulbut, 4 Denio. (N. Y.) 
 133- 
 
 156 U. S. v. Upham, 43 Fed. Rep. 68; Gerrish v. State, 53 Ala. 476; 
 O'Brien v. State, 91 Ala. 25 ; Gardner v. State, 4 Ind. 632 ; Jones v. State, 
 ii Ind. 357. And see Skinner v. State, 30 Ala. 524; Levy v. State, 6 Ind. 
 281 ; Wilcox v. State, 34 S. W. 958. CONTRA State v. Webster, 30 Ark. 
 166; Com. v. Kelcher, 3 Met. (Ky.) 485; State v. Johnson, 93 Mo. 73. 
 
 157 U. S. v. Riley, 74 Fed. Rep. 210. And see Cheek v. State, 38 Ala. 
 227; Winten v. State, 90 Ala. 637; Blodget v. State, 3 Ind. 403; Yost v. 
 Com., 5 Ky. Law Rep. 935; State v. Stowe, 132 Mo. 199; Sault v. 
 People, 34 Pac. 263. 
 
 158 4 Bl. Com. 305; Reg. v. Austin, 4 Cox C. C. 385; Reg. v. Hum- 
 phreys, Car. & M. 601. CONTRA i Chitty Cr. Law 325; R. v. Newton, 2 M. 
 & Rob. 503 ; Queen v . Simmonite, i Cox C. C. 30. 
 
 159 U. S. v. Martin, 50 Fed. Rep. 918; Christmas v. State, 53 Ga. 81 ; 
 State v. Green, 1 1 1 Mo. 585 ; State v. Brown, 81 N. C. 568 ; State v. Har- 
 ris, 91 N. C. 656; Ex Parte Job, 30 Pac. 699; State v. Reinhart, 38 Pac. 
 822; i Chitty Cr. Law 325. Mr. Chitty, however, states, p. 324, when the 
 bill is ignored "the party is discharged without further answer," which is 
 inconsistent with his subsequent statement. 
 
 160 Rowand v. Com., 82 Pa. 405.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 153 
 
 the question were an open one, there would be little doubt as to 
 the rule it would be the duty of this court to lay down. On 
 principle, the return of "ignoramus" made on an indictment 
 by a grand jury ought to be the end of the prosecution orig- 
 inating in the information returned by the committing mag- 
 istrate. The defendant has complied with the conditions of 
 his recognizance. The prosecution has failed with the failure 
 of the bill. The sureties of the defendant are released, and he 
 is entitled to be discharged. 181 In analogy to the rules by 
 which other judicial proceedings are governed, this ought to 
 be the end of the case founded on the complaint he was called 
 on in the first instance to answer." 
 
 It has therefore been held to be error, where, after a grand 
 jury had ignored a bill, a defendant was held in bail to answer 
 the same charge without a new prosecution being instituted. 182 
 
 Where the grand jury ignored the bill and an application 
 was made to the court by private counsel for the prosecutor 
 for leave to send a new bill before the next grand jury, the 
 court held that in the absence of any allegations of irregu- 
 larity or fraud it had no jurisdiction to review the proceed- 
 ings of the grand jury or direct the sending of a new bill 
 to the next grand jury. 163 
 
 In some states, it has been provided by statute that a bill 
 once ignored shall not again be submitted to the grand jury 
 except by leave of court; 184 but this has been construed not to 
 apply to a bill charging a different offence arising out of the 
 same assault 185 nor to a case where the grand jury on their 
 own motion find an indictment which has once been dis- 
 missed. 188 
 
 161 In U. S. v. Bates, 24 Fed. Cas. 1042, it was held that a prisoner was 
 not entitled to be discharged because the grand jury ignored the bill. 
 
 162 In re Moragne, 53 Pac. 3. 
 
 163 Com. v. Priestley, 10 Dist. Rep. (Pa.) 217. And see Com. v. Allen, 
 14 Pa. C. C. Rep. 546; Com. v. Charters, 20 Pa. Superior Ct. 599; In re 
 Moragne, 53 Pac. 3. 
 
 164 State v. Collis, 73 Iowa 542; People v. Clements. 5 N. Y. Cr.Rep. 288; 
 People v. Warren, 109 N. Y. 615. 
 
 165 People v. Warren, 109 N. Y. 615. 
 
 166 State v. Collis, 73 Iowa 542.
 
 154 THE GRAND JURY. 
 
 When the grand jurors have completed their findings, they 
 are prepared to return into court and make their present- 
 ment. They therefore proceed from their room to the court 
 room where they were empaneled, and the names of the grand 
 jurors being called, those present answer thereto. They are 
 then asked by the crier if they have agreed upon any bills and 
 bade to present them to the court. 167 The indictments having 
 been brought in by the foreman, 168 they are handed by him to 
 the crier, who asks if they agree that the court shall amend 
 matter of form altering no matter of substance. To this the 
 grand jury signify their assent. This assent it has been said 
 was necessary to be had at common law in order that clerical 
 errors in the indictment might be corrected ; without the consent 
 of the grand jury, the court was powerless to make any alter- 
 ation in the bill as found, and with it, cannot alter the indict- 
 ment in matter of substance. 169 
 
 In Pennsylvania, 170 in view of the act of March 31, 1860, 
 which allows the court for any formal defect appearing on the 
 face of the indictment to forthwith cause such defect to be 
 amended, it would seem no longer necessary to obtain the as- 
 sent of the grand jury to the making of a change which the 
 law directs shall be made. And this would also seem to be 
 the law in the Federal courts. 171 
 
 Where it becomes necessary to alter an indictment in matter 
 of substance, the bill may be re-submitted to the same grand 
 jury which originally found it, if they are then in session, and 
 they may find a true bill in its altered form without hearing 
 
 167 i Whart. Cr. Law, Sec. 500. (7th ed.) 
 
 168 Laurent v. State, i Kan. 313 ; Com. v. Cawood, 2 Va. Cas. 527. They 
 should not be brought in by the foreman alone, but by the grand jury as a 
 body: State v. Bordeaux, 93 N. C. 560. People v. Lee, 2 Utah 441. 
 
 169 I Chitty Cr. Law 324; Ex Parte Bain, 121 U. S. I ; Sparks v. Com., 
 9 Pa. 354. In Harrison v. Com., 123 Pa. 508, where the district attorney 
 amended the indictment by inserting "copper" before "lightning rod," 
 without submitting the amended bill to the grand jury, this point was 
 raised, but the court below awarded a new trial upon other grounds. 
 
 170 Sec. n, P. L. 427. 
 
 171 R. S. U. S. Sec. 1025; Caha v. U. S., 152 U. S. 211.
 
 HOW THE GRAND JURY TRANSACTS BUSINESS. 155 
 
 any further evidence. 172 If the grand jury which found the 
 bill has been discharged, then the altered bill, or what is better, 
 a new bill may be submitted to a subsequent grand jury, 178 
 but, in either event they cannot find a true bill unless evidence 
 is heard in support thereof. In Ex Parte Bain 174 the district 
 attorney amended the indictment in matter of substance by 
 leave of court and without re-submitting the bill to the grand 
 jury. The defendant was tried, convicted and sentenced to 
 the penitentiary. Upon habeas corpus proceedings, the de- 
 fendant was discharged, the United States Supreme Court 
 holding, "Upon an indictment so changed the court can pro- 
 ceed no farther. There is nothing (in the language of the 
 Constitution) which the prisoner can be held to answer. A 
 trial on such an indictment is void. There is nothing to try." 
 If the grand jury after hearing the evidence find a true bill 
 without it being read to them, it has been held not to afford 
 ground for setting aside the indictment so found. 175 It is 
 difficult, however, to reconcile this decision with the ruling in 
 Ex Parte Bain. It can hardly be said that the finding of a 
 bill, the contents of which are unknown to the grand jurors, is 
 any more their finding than the bill altered in substance after 
 presentment. The grand jury have no knowledge of the na- 
 ture of the charge to which they give their sanction. They 
 may vote to find a true bill upon the evidence they have heard, 
 while the allegations of the bill to which their sanction has 
 apparently been given may present a totally different offence, 
 and which, if known to the grand jurors upon hearing the evi- 
 dence, they would have ignored. But the reading of the en- 
 
 172 Com. v. Woods, 10 Gray (Mass.) 477. In Com. v. Clune, 162 Mass. 
 206, the same ruling was made, although some of the grand jurors who 
 found the former indictments were absent and their places were filled by 
 jurors who had heard no evidence. See State v. Peterson, 61 Minn. 73. 
 
 173 i Chitty Cr. Law 325; State v. Allen, R. M. Charltons Rep. (Ga.) 
 518; Com. v. Woods, 10 Gray (Mass.) 477; see State v. Davidson, 2 Cold. 
 (Tenn.) 184; Lawless v. State, 4 Lea (Tenn.) 173. 
 
 174 121 U. S. i ; and see Watts v. State, 57 Atl. 542. 
 
 175 U. S. v. Terry, 39 Fed. Rep. 355. And see U. S. v. Farrington. 5 
 Fed. Rep. 343, where the court directs attention to this fact, but quashed 
 the indictment upon other grounds.
 
 156 THE GRAND JURY. 
 
 tire bill may be dispensed with providing the material por- 
 tions of the bill charging the offence be read to the grand jury. 
 
 They are not required to read in open court their finding 
 upon the various bills of indictment presented by them. 176 The 
 handing of the bill to the crier or clerk and the entry made by 
 him on the records is a sufficient publication of the finding of 
 the grand jury. 177 And where indictments, when found, 
 were sent into court by the district attorney or a messenger 
 and they were neither presented by the grand jury or a mem- 
 ber thereof, the court refused to quash, the indictments hav- 
 ing been recorded by the clerk. 178 
 
 The finding of the grand jury should be recorded by the 
 clerk of the court and a failure to do this cannot be excused 
 by the defendant pleading not guilty, and a motion in arrest 
 of judgment will be sustained upon this ground. 179 And 
 
 176 U. S. v. Butler, 25 Fed. Cas. 213; Hopkins v. Com. 50 Pa. 9. 
 
 177 Id.. And see Hogan v. State, 30 Wis. 428. 
 
 178 Com. v. Salter, 2 Pears. (Pa.) 461; Danforth v. State, 75 Ga. 614; 
 Laurent v. State, i Kan. 313. 
 
 179 Holcombe v. State, 31 Ark. 427; Thornell v. People, n Colo. 305; 
 Gardner v. People, 20 111. 430; Kelly v. People, 39 111. 157; Aylesworth 
 v. State, 65 111. 301 ; Adams v. State, 1 1 Ind. 304 ; Heacock v. State, 
 42 Ind. 393; State v. Glover, 3 G. Greene (Iowa) 249; State v. Sandoz, 
 37 La. Ann. 376; Jenkins v. State, 30 Miss. 408; Pond v. State, 47 Miss. 
 39; State v. Brown, 81 N. C. 568; State v. Davidson, 2 Cold. (Tenn.) 184; 
 Rainey v. People, 3 Gil. (111.) 71; Chappel v. State, 8 Yerg. (Tenn.) 
 166; Brown v. State, 7 Humph. (Tenn.) 155; Hardy v. State, I Tex. App. 
 556; Simmons v. Com., 89 Va. 156; Com. v. Cawood, 2 Va. Cas. 527; State 
 v. Gilmore, 9 W. Va. 641 ; State v. Heaton, 23 W. Va. 773. CONTRA Moore 
 v . State, 81 S. W. 48 ; State v. Crilly, 77 Pac. 701 ; People v. Lee, 2 Utah 
 441 ; Mose v. State, 35 Ala. 421. And see as to a sufficient record of the 
 finding: McCuller v. State, 49 Ala. 39; Robinson v. State, 33 Ark. 180; 
 Johnson v. State, 24 Fla. 162; Fitzpatrick v. People, 98 111. 269; Kelly v. 
 People 132 111. 363 ; Wall v. State, 23 Ind. 150; Beavers v. State, 58 Ind. 530; 
 Clare v. State, 68 Ind. 17; Reeves v. State, 84 Ind. 116; Heath v. State, 101 
 Ind. 512; Millar v. State, 2 Kan. 174; Patterson v. Com., 86 Ky. 313; Nich- 
 ols v. State, 46 Miss. 284 ; State v. Vincent, 91 Mo. 662 ; State v. Gainus, 86 
 N. C. 632; Hopkins v. Com., 50 Pa. 9; Bennett v. State, 8 Humph. (Tenn.) 
 118; Maples v. State, 3 Heisk (Tenn.) 408; Peeples v. State, 35 So. 223; 
 Pearce v. Com., 8 S. W. 893 ; State v. Jones, 42 Pac. 392. In State v. Muz- 
 ingo, 19 Tenn. (Meigs) 112, it was held that a presentment of the grand 
 jury need not be entered on the minutes of the court.
 
 ITS RELATION TO THE COURT. 157 
 
 where several persons are indicted in the one bill and the find- 
 ing is recorded as to one only, the court will sustain the in- 
 dictment against the defendant as to whom the finding was 
 properly recorded, and quash as to the other defendants. 180 
 
 When the finding of the grand jury has been recorded, the 
 bills of indictment should be filed. In some states the statutes 
 make provision for the filing of indictments. Such provisions, 
 however, may in general be regarded as directory 181 and 
 courts are disinclined to invalidate an indictment where the 
 statute has not been complied with. 182 If the date of the filing 
 has not been endorsed on the indictment, the court may there- 
 after direct that the actual date of filing be endorsed thereon. 183 
 
 When the grand jurors have completed all the duties which 
 will devolve upon them, it is now customary for them to pre- 
 pare a written report of their work, which is signed by their 
 foreman and handed to the court crier with the indictments. 
 In this report they frequently take occasion to discuss various 
 matters affecting the public welfare, criticise public officials, 
 act as censors of the morals of the community, and make re- 
 commendations which it is impracticable and impossible to 
 carry into effect. 
 
 That they are acting outside of their duties as grand jurors 
 in making such presentments will hardly be doubted. As the 
 official accuser for the government, their duty is to present per- 
 sons not things. That this practice should be continued upon 
 the ground that it calls to the public eye abuses in the admin- 
 istration of government or the existence of vice in the com- 
 munity, is a proposition which rests upon no logical basis. If 
 they have any evidence of the things which they thus set forth, 
 
 180 Drake and Cochren's Case, 6 Gratt (Va.) 665; State v. Compton, 13 
 W. Va. 852. CONTRA State v. Banks, 40 La. Ann. 736. 
 
 181 Stanley v. State, 88 Ala. 154; Dawson v. People, 25 N. Y. 399. 
 
 182 Pittman v. State, 25 Fla. 648; Engelman v. State, 2 Cart. (Ind.) 91 ; 
 State v. Jolly, 7 Iowa 15; Com. v. Stegala, 8 Ky. Law Rep. 142; Reynolds 
 v. State, it Tex. 120. 
 
 183 Franklin v. State, 28 Ala. 9; State v. Gowen, 7 Eng. (Ark.) 62; 
 James v. State, 41 Ark. 451 ; Pence v. Com. 95 Ky. 618; State r. Clark, 18 
 Mo. 432; Caldwell v. State, 5 Tex. 18; Rippey v. State, 29 Tex. App. 37.
 
 158 THE GRAND JURY. 
 
 it is their duty to the public and to themselves under their 
 oath, to present the individuals guilty of such offences. 184 If 
 they have no personal knowledge of the facts, they are then 
 proceeding in a manner contrary to law. 185 If they know the 
 things which they present, they should present individuals; 
 it they do not know, they are committing a wrong in making 
 broad accusations, which, while they cannot be sustained, 
 grievously injure those to whom they indirectly apply. 
 
 This practice received severe condemnation over seventy 
 years ago at the hands of Honorable Daniel Davis 186 then 
 Attorney General for the State of Massachusetts, who says: 
 "The practice, not uncommon in some parts of the United 
 States, of bringing forward, in the form of presentments, 
 what are denominated public grievances, relative to the politi- 
 cal or moral state of the country, is altogether extra-official, 
 and may be and has been adopted and pursued for purposes 
 foreign to, and inconsistent with, the nature of the institution ; 
 and perhaps it is not too much to assert, that the opportunity 
 has been used and perverted to party purposes, and with an in- 
 tention to produce an effect upon public measures and the 
 public mind. Whenever this shall be the case it is to be con- 
 sidered in the same light as any other usurpation or abuse 
 of the judicial authority. It may, with the same propriety, be 
 exercised by any other branch of the judicial power, by the 
 court, or the traverse jury, as well as the grand jury." 
 
 In the case of Rector v. Smith, 186 * the grand jury made a 
 written report to the court wherein libellous statements were 
 made relating to the conduct of a person then in public office. 
 An action for libel was begun against the clerk of the grand 
 jury who had brought the report into court and there read it. 
 
 184 See Judge Stowe's Charge to Grand Jury, 3 Pitts. Rep. (Pa.) page 
 179. It may be doubted whether this charge, so far as it relates to the 
 power of the grand jury to originate prosecutions, is entirely correct; it is 
 at least an inadequate statement of the authority of the grand jury. 
 
 185 Case of Lloyd and Carpenter, 3 Clark (Pa.) 188. 
 
 186 Precedents of Indictments, p. n. 
 186* ii Iowa 302.
 
 ITS RELATION TO THE COURT. 1 59 
 
 An answer was filed by the defendant who claimed the report 
 was a privileged communication, to which answer the plaintiff 
 demurred but the demurrer was overruled by the lower court. 
 On appeal, the Supreme Court affirmed the judgment and 
 expressly ruled that the report was not a privileged communica- 
 tion. In delivering the opinion of the court, Balwin, J., says : 
 "The grand jury have no power, nor is it their privilege or 
 duty to present any person for a criminal offence except by in- 
 dictment If the misconduct of an officer does not amount to 
 a crime, and is not of such magnitude as will justify the jury 
 in finding an indictment, their powers over the offence com- 
 plained of, are at an end A report by a grand 
 
 jury, presents nothing upon which the court can act, unless it 
 is in reference to the condition of the prison. The court can 
 take no jurisdiction over the complaint charged by such report. 
 Nor can a person thus presented have an opportunity to show 
 himself innocent of the matters complained of. With this 
 view of the question we conclude that the report presented by 
 the defendant as a juror, was not a privileged communication, 
 and that he cannot plead this in bar of plaintiff's right to re- 
 cover." 
 
 When the grand jury in their presentment thus go beyond 
 their lawful authority, whether they refer to persons by name, 
 title, or by innuendo, or to any particular matter or thing, it be- 
 comes a serious question whether or not their presentment 
 should be permitted to stand. Clearly in such instance they 
 have exceeded their authority, and in such event their present- 
 ment rests upon no legal foundation. There would conse- 
 quently seem to be no valid reason why a motion to quash or 
 dismiss the presentment, or strike it, or the objectionable part 
 thereof, from the files should not be made. If the grand jurors 
 have exceeded their authority in making such presentment, it is 
 clearly invalid and illegal and may be subjected to attack either 
 by the attorney for the state or by the person or persons to 
 whom the presentment may relate, in the same manner as any 
 presentment or indictment may be attacked. This course has 
 been pursued in Georgia 186 ** where the grand jury made a pre- 
 186** Presentment of Grand Jury, i R. M., Charlt. 149.
 
 I6O THE GRAND JURY. 
 
 sentment reflecting upon the judges of the Superior Court. 
 The attorney general moved to expunge the presentment from 
 the minutes which was accordingly done. 
 
 After submitting their report they are then discharged from 
 further service by the court, and go out and mingle with their 
 fellow citizens and their identity as grand jurors is forever 
 lost. 187 But a grand jury cannot legally dissolve itself 188 or 
 dismiss or excuse any of its members. 189 This is the preroga- 
 tive of the court alone and until the court takes such action, 
 the existence of the grand jury continues during the balance of 
 the statutory period for which it was summoned. 190 It may 
 be dismissed from time to time during the period for which it 
 was convened and again summoned back to duty when any 
 matters are to be laid before it; 191 or it may adjourn upon its 
 own motion and again reconvene and act whether court is in 
 session or not. 192 But when the record shows that the grand 
 jury has been discharged, it will be presumed to have been 
 legally and properly discharged. 193 
 
 Whether or not the members of the grand jury may be 
 again re-assembled after once being discharged is a matter as 
 to which there is considerable difference of opinion. Two 
 
 187 Chief Justice Shaw's Charge to Grand Jury, 8 Am. Jurist 216; Ad- 
 dison, App. 75. 
 
 188 In re Gannon, 69 Calif. 541. 
 
 189 See Gladden v. State, 12 Fla. 562; Smith v. State, 19 Tex. App. 95; 
 Watts v. State, 22 Id. 572; Drake v. State, 25 Id. 293; Jackson v. State, 25 
 Id. 314. 
 
 190 In re Gannon, 69 Calif. 541 ; People v. Leonard, 106 Calif. 302 ; State 
 v. Bennett, 45 La. Ann. 54; Com. v. Rich, 14 Gray (Mass.) 335. And see 
 Barger v. State, 6 Blackf. (Ind.) 188; Harper v. State, 42 Ind. 405. R. S. 
 U. S. 811 provides: "The circuit and district courts, the district courts of 
 the Territories, and the supreme court of the District of Columbia, may 
 discharge their grand juries whenever they deem a continuance of the ses- 
 sions of such juries unnecessary." 
 
 191 Ulmer v. State, 14 Ind. 52; Long v. State, 46 Ind, 582; State v. Pate, 
 67 Mo. 488. That the grand jurors did not return until after the day 
 designated will not dissolve the grand jury: Clem v. State, 33 Ind. 418. 
 
 192 Nealon v. People, 39 111. App. 481 ; People v. Sheriff of Chautauqua 
 County, II Civ. Proc. Rep. 172. And see Com. v. Bannon, 97 Mass. 214. 
 
 193 White v. People, 81 111. 333. And see Stati v. Wingate, 4 Ind. 193.
 
 ITS RELATION TO THE COURT. l6l 
 
 learned writers hold 194 that "When an emergency arises, re- 
 quiring the presence of a grand jury after the regular body has 
 been discharged, in the absence of statutory authority to sum- 
 mon a new panel, the court should set aside the order of dis- 
 charge and re-assemble the previous grand jury." 195 But a 
 contrary and what would seem the better opinion, is held by 
 Hon. Daniel Davis, 196 who says: "When the grand jury have 
 finished their business and been unconditionally discharged, 
 they cannot be re-summoned and reorganized. No grand jury 
 can be created or brought into existence but in the manner di- 
 rected by the statutes of the state." 
 
 It would seem that grand jurors in such cases are analo- 
 gous to petit jurors, who, upon being discharged from further 
 service and having separated, cannot again be reassembled. 
 The statutes provide a method for selecting and summoning 
 grand jurors and the requirements of these statutes must be 
 strictly followed. When, therefore, the grand jurors have 
 been discharged, their official capacity at once comes to an end 
 and they are but ordinary citizens. To set aside the order of 
 discharge would not restore them to their former official po- 
 sition. Their official capacity having once terminated, it can 
 only be again created by the method provided by statute. 197 
 If there is no statute which provides for setting aside the order 
 of discharge and the reassembling of the grand jury with the 
 
 194 Thompson & Merriam on Juries, Sec. 497. 
 
 195 See Newman v. State, 43 Tex. 525. 
 
 196 Precedents of Indictments, p. 30. And see Reg. v. Holloway, 9 Car. 
 & P. 43- 
 
 197 Findley v. People, i Manning (Mich.) 234: In Mackey v. People, 2 
 Colo. 13, the indictment was found by a special grand jury summoned during 
 the term and after the regular grand jury had been discharged for the term. 
 The defendant challenged the array upon the ground that the statute pro- 
 vided that the regular grand jurors had been summoned for the term and 
 that after they were discharged no grand jury could be summoned until the 
 next term. The challenge was overruled upon the ground that there was 
 a common law power in the court to so cause a grand jury to be sum- 
 moned and that it did not conflict with the statute. And see Stone v. 
 People, 2 Scam. (111.) 326; Empson v. People, 78 111. 248; Freel v. State, 
 21 Ark. 212; State r. Grimes, 50 Minn. 123. 
 
 II
 
 1 62 THE GRAND JURY. 
 
 same power as before its discharge, a grand jury thus called 
 back to duty would not be lawfully organized. 198 
 
 The order of discharge cannot be collaterally attacked. 199 
 When the grand jurors are in session or during the time they 
 retain their official position their oath restrains them from dis- 
 closing to any one out of the grand jury room that which trans- 
 pires therein, and it is likewise unlawful for any one to ap- 
 proach a grand juror and attempt in any manner to influence 
 his action. When actually engaged in his duties as a grand 
 juror he is prohibited from holding communication with any 
 one except the court, the district attorney, such witnesses as are 
 sent before the grand jury by the district attorney, and his 
 fellow jurors. It is improper for any one else to send com- 
 munications to the grand jurors, or for them to receive them, 
 whether with a view to influence the action of the grand jury 
 or not. 200 If any person outside the grand jury room has 
 knowledge of any matter proper for their consideration, he 
 should lay such information before the district attorney who 
 will act accordingly, but he must not attempt to have any direct 
 communication with them. 
 
 This question arose in Pennsylvania in the case of Com- 
 monwealth v. Crans, 201 where the defendant sent a communi- 
 cation to the grand jury, giving his views upon certain sub- 
 jects which were liable to come before them, and Judge 
 Parsons, there said, "if they (the grand jurors) are to 
 be instructed previous to their retiring by the judge who pre- 
 
 198 Gay v. State, 49 S. W. 612; Matthews v. State, 58 S. W. 86; Trevinio 
 v. State, 27 Tex. App. 372. See State v. Reid, 20 Iowa 413. 
 
 199 State v. Hart, 67 Iowa 142. It is impossible to reconcile the ruling 
 in this case with those cases which hold a new grand jury to be illegally 
 empanelled because the former grand jury was not legally discharged. 
 
 200 People v. Sellick, 4 N. Y. Cr. Rep. 329; Charge to Grand Jury, 30 
 Fed. Cas. 992; Com. v. Crans, 2 Clark (Pa.) 441 ; Doan's Case, 5 Pa. Dist. 
 Rep. 211. And see Henry Bergh's Case, 16 Abb. Pr. N. S. (N. Y.) 266; 
 People v. Shea, 147 N. Y. 78. The authority of the grand jury to investi- 
 gate a criminal charge is not affected by an order from the President of 
 the United States to the district attorney directing him not to prosecute the 
 defendant : In re Miller 17 Fed. Cas. 295. 
 
 201 2 Clark (Pa.) 441.
 
 ITS RELATION TO THE COURT. 163 
 
 sides, it necessarily follows they are not to be instructed after 
 they retire to their rooms by any one else. Individuals have 
 no more right to appear before them to discuss matters, or 
 send them letters relative to subjects which are before them, 
 or which may come before them, than they would have to com- 
 municate with a petit jury after a charge had been delivered 
 from the bench, in relation to a case which had just been tried." 
 
 From the time the grand jurors are summoned until finally 
 discharged, they bear an official relation to the court, and while 
 all jurists agree that they are under the control of the court, 
 none have expressed a well defined opinion as to how far the 
 authority of the court over the grand jurors extends, or to 
 what extent they are independent of the court. 202 
 
 In the days of Bracton and Britton and for a long period 
 thereafter, such a question as this would have been easy to de- 
 termine. Then, the grand jury was but an instrument wholly 
 under the control of the justices and acting in such manner 
 as they should direct. If the justices so desired, the grand 
 jurors would hear the evidence (when it became customary for 
 them to hear evidence) in open court. If they heard any evi- 
 dence in private or acted as they then most usually did, upon 
 their own knowledge, or upon hearsay, it was optional with the 
 justices to compel them to disclose how they obtained knowl- 
 edge of the facts which the jurors set forth in their pre- 
 sentment, and the court was at liberty to set this presentment 
 aside. And it would seem that where a false presentment was 
 made the jurors were liable either to be fined or be imprisoned 
 at the pleasure of the king's justices, and likewise, if the grand 
 jurors refused to present when directed to do so by the jus- 
 tices. 
 
 The causes which tended to make the grand jury to a cer- 
 tain extent independent of the court have been heretofore fully 
 considered, 203 and while the court at various times thereafter 
 
 202 In People v. Sheriff of Chautauqua County, n Civ. Proc. Rep. (N. 
 Y.) 172, it was held that the grand jury is not a part of the court in which 
 it is drawn, and that the court has no control over its sittings or adjourn- 
 ments. 
 
 203 Supra. 28.
 
 164 THE GRAND JURY. 
 
 endeavored to compel juries to do their will as we have seen 
 occurred in Pennsylvania, 204 the practice of punishing them 
 by fine or imprisonment for refusal to act in accordance with 
 the wishes of the justices was brought to an end long prior 
 thereto by the resolute action of Sir Hugh Windham. 205 In 
 this case the grand jurors refused to find a bill for murder al- 
 though they were satisfied that the deceased came to his death 
 at the hands of the defendant. The chief justice thereupon 
 fined eleven of them, among whom was Sir Hugh Windham, 
 and bound them over until the King's Bench should determine 
 the matter. The court relieved them of the fine although 
 holding that the grand jury should have found a bill for mur- 
 der. The chief justice was afterward accused in Parliament 
 by Sir Hugh, and was obliged to acknowledge, that the fining 
 was unlawful. 
 
 That the grand jury from that time has been absolutely free 
 from the control of the court in their findings, there can be no 
 question, and Judge King said, 206 when discharging a prisoner 
 upon habeas corpus proceedings: "I rejoice that our judg- 
 ment is not conclusive of the subject; the sole effect of this 
 decision, is that in the present state of the evidence we see no 
 sufficient cause to hold the defendant to bail. It is still com- 
 petent for the proper public officer to submit the case to the 
 grand jury; that respectable body are entirely independent of 
 us; they may form their own view of the prosecutor's case, 
 and may if their judgment so indicates, place the defendant 
 on his trial." 
 
 But aside from the independence which they possess in re- 
 gard to their finding, in what respect, if any, are they inde- 
 pendent of the control of the court. Dr. Wharton states : 207 
 "When the grand jury are in session, they are completely 
 under the control of the court," and in the case of State v. 
 
 204 Francis Hopkinson's Works, Vol. i, p. 194. Supra. 31. 
 
 205 King v. Windham, 2 Keble 180. And see Bushel's Case, Vaughn 153;' 
 2 Hale, PI. C. 158 et seq. 
 
 206 Com. v. Ridgway, 2 Ash. (Pa.) 247. 
 
 207 i Whart. Cr. Law, Sec. 506 (7th ed.) : And see State v. Cowan, i 
 Head (Tenn.) 280.
 
 ITS RELATION TO THE COURT. 
 
 Cowan 207 * the court said : "The grand jury are under the con- 
 trol of the court. And it is the province and duty of the court 
 to see that the finding is proper in point of law ; and if not, the 
 court may recommit an improper or imperfect finding, and 
 may, if necessary, exercise the power of compelling a proper 
 discharge of duty on the part of the grand jury." 
 
 It was said by Judge Parsons 208 that the grand jury "have 
 no power to compel the appearance of a witness, none to attach 
 him for contempt should he refuse to testify, and even on bills 
 pending before them, it became necessary to pass a special law 
 to authorize them to swear witnesses endorsed on the bills." 
 While they are thus unable to take any legal action on matters 
 not within their own knowledge except with the assistance of 
 the court, the court cannot compel them to receive the witnesses 
 subpoenaed, and while it may recommit to them an imperfect 
 finding, 209 it cannot compel them to alter it if they refuse. 
 
 Within their own room they are supreme in their action ; 210 
 within the court room, they are subject to the control of the 
 judge in the same manner as any other officer of the court, 211 
 but even in the court room, the judge has no authority over 
 the grand jurors in any matter which is in their discretion. 
 
 In Pennsylvania 212 a person can only be committed for con- 
 tempt where the offence is actually committed in the presence 
 of the court, although fines may be imposed for contempts not 
 committed in open court, but in the event of the grand jurors 
 in their own room acting contrary to the instructions of the 
 court all that the judge could do would be to discharge the 
 jurors from further service. 
 
 A different rule prevails in the Federal courts, for the judges 
 may commit for contempt where the offence was not committed 
 in their presence. Thus in Summerhayes case 213 the court sen- 
 
 207* i Head (Tenn.) 280. 
 
 208 Com. v. Crans., 2 Gark (Pa.) 441. 
 
 209 i Whart. Cr. Law, Sec. 506 (7th ed.) ; State v. Squire, 10 N. H. 558; 
 State v. Cowan, i Head (Tenn.) 280. 
 
 21 o Allen v. State, 61 Miss. 627. 
 
 211 U. S. v. Kilpatrick, 16 Fed. Rep. 765. 
 
 212 Act June 16, 1836, P. L. 23. 
 
 213 In re Summerhayes, 70 Fed. Rep. 769.
 
 l66 THE GRAND JURY. 
 
 tenced a grand juror to six months imprisonment for contempt 
 in disregarding his oath and the instructions of the court by 
 revealing to persons outside the grand jury room matters 
 which had transpired therein, relating to such persons. And 
 in Ellis' case 214 on motion of the prosecuting attorney, the 
 court fined Ellis, who was foreman of the grand jury, thirty 
 dollars, discharged him from the grand jury and ordered that 
 execution issue to collect the fine. 
 
 A different and rather better view was taken by the court 
 of King's Bench 215 which refused to attach a grand juror for 
 certain acts done by him while acting in his official capacity, 
 although they will attach one who had been a grand juror for 
 acting as such after he has been dismissed. 
 
 The grand jury has jurisdiction over its own members for 
 any presentable offence which may be committed by a grand 
 juror while acting as such. Thus in Pennsylvania the grand 
 jurors presented one of their number for drunkenness, he being 
 present in the grand jury room in a drunken condition and 
 sleeping by the fire while the inquest performed its duties, and 
 the court held the presentment proper if the jury believed the 
 drunkenness to have been voluntary. 216 
 
 Unlike the private prosecutor a grand juror comes ordinarily 
 unwillingly in obedience to the command of the law to act as an 
 official accuser. If, while so acting, he should disregard his 
 oath and maliciously procure the indictment of any person or 
 persons for some alleged offence, the law affords no redress to 
 the person whom he has wronged. No inquiry can be made as 
 to what he said or how he voted ; the veil of secrecy surround- 
 ing the acts of grand jurors presents a most complete barrier 
 to any investigation into the motive which inspired his action. 
 Even though it were possible to make such investigation, con- 
 siderations of public policy would require that no action should 
 be maintained against a grand juror for any act done in his 
 official capacity. The fact that he was liable to answer to a de- 
 
 214 In re Ellis, 8 Fed. Cas. 548. 
 
 215 King v. Baker, Rowe's Rep. of Interesting Cases, 603. 
 
 216 Penna v. Keffer, Add. 290.
 
 ITS RELATION TO THE COURT. l6/ 
 
 fendant for his official acts, would operate as a powerful deter- 
 rent to finding a true bill in many cases. The law, therefore, af- 
 fords a grand juror the most unqualified indemnity for his of- 
 ficial acts. "During the whole of their proceedings the grand 
 jury are protected in the discharge of their duty and no action 
 or prosecution can be supported against them in consequence 
 of their finding, however it may be dictated by malice, or 
 destitute of probable foundation." 217 
 
 217 I Chitty Cr. Law 323. And see Floyd v. Barker, 12 Co. 23; 
 Johnstone v. Sutton, i Term Rep. 513-14; Turpen v. Booth, 56 Calif. 65; 
 Thornton v. Marshall, 92 Ga. 548; Hunter v. Mathis, 40 Ind. 356; Rector v. 
 Smith, 1 1 Iowa 302 ; Ullman v. Abrams, 72 Ky. 738 ; Griffith v. Slinkard, 44 
 N. E. 1001. In Scarlett's Case, 12 Co. 98, a grand juror was indicted, con- 
 victed and sentenced for maliciously causing seventeen innocent persons 
 to be indicted. And see Poulterer's Case, 9 Co. 55b. But this could 
 not be done at the present day by reason of the policy of the law not to 
 permit any grand juror to testify what any member of the jury had said 
 or how he voted. In Allen r. Gray, n Conn. 95, it was held that where 
 process issues on complaint of a grand juror for an offence of which he is 
 not cognizant, he is liable in trespass.
 
 INDEX 
 
 The references are to pages. 
 ABATEMENT 
 
 objections to indictment made by plea in, 86. 
 
 two or more pleas in, may be filed, 86. 
 
 when plea in sustained, 80. 
 
 plea of sustained where initials of defendant used, 152. 
 
 objections made by plea of, in England, 84. 
 
 neglect to challenge, not ground for plea in, 71. 
 
 relationship as ground for plea in, 81. 
 ABOLITION OF GRAND JURY, 35. 
 
 Arguments pro and con, 35. 
 
 opinion of Daniel Davis, 36. 
 
 English view, 38, 39. 
 
 American view, 40. 
 
 in Western States, 44. 
 ABSENCE 
 
 of officer when selection made, 58. 
 ACCOMPLICE 
 
 indictment found on uncorroborated evidence of, 144. 
 ACCUSE 
 
 duty of thanes to, 3. 
 ACCUSED 
 
 asks instructions to grand jury, 126. 
 ACCUSING BODY. AND SEE ACCUSING INQUEST. 
 
 known as inquest or jury, 2. 
 
 unknown to Normans, 4. 
 
 number composing, 6, 23, 24. 
 
 its slow growth, 5. 
 
 importance promoted by appeal, 7. 
 
 reading articles to, 20. 
 
 presentment by, 10, n, 21. 
 
 failure of, to present, 13. 
 
 indictment by, 22, 24. 
 
 disappearance of in hundred, 27. 
 ACCUSING INQUEST. AND SEE ACCUSING BODY. 
 
 scope of, 10. 
 
 duty to accuse, 3. 
 
 to answer capitula fully, 1 1. 
 
 secrecy observed by, 21, 27. 
 
 knowledge of, as to offenders, 1 1. 
 
 169
 
 INDEX. 
 The references are to pages. 
 
 ACTION 
 
 against grand juror, when maintainable, 166. 
 ACTS 
 
 presumption of regularity of official, 59. 
 
 accused may take advantage of irregular, 64. 
 
 wrongful, of grand jurors, 166. 
 ADDISON, JUDGE, 
 
 charges to grand juries, 101, 124, 131, 141. 
 ADJOURNMENT 
 
 of grand jury from time to time, 160. 
 AFFIDAVIT 
 
 when necessary to sheriffs return, 54. 
 
 in support of challenge to array, 68. 
 AFFINITY 
 
 grand jurors related to accused by, 81. 
 AFFIRMATION. AND SEE OATH. 
 
 of grand jurors, 91, 137. 
 AFFORCIAMENT 
 
 when employed, 24. 
 AGE OF GRAND JURORS 
 
 exemption by reason of, 72. 
 ALABAMA 
 
 oath of grand juror in, 95n. 
 
 investigation of sufficiency of official bonds, 122. 
 
 endorsement of prosecutor's name, 136. 
 ALIEN 
 
 not a competent grand juror, 60, 63, 77. 
 
 cannot demand grand jury de medietate linguae, 64. 
 AMENDMENT 
 
 of writ of venire, 48. 
 
 of sheriffs return, 50. 
 
 of record nunc pro tune, 93. 
 
 of indictment, 154, 155. 
 
 Fifth, to Constitution of United States, 32, 131. 
 applies solely to offences against United States, 33. 
 does "not apply to Cherokee Nation, 33n. 
 
 Sixth, to Constitution of United States, 57. 
 
 Fourteenth, to Constitution of United States, 33, 66. 
 does not prevent states from prosecuting by information, 33. 
 gives white man no additional rights, 67. 
 AMERCEMENT 
 
 of hundred for escape of offender, 4. 
 AMERCERS 
 
 pledges taken by, 20.
 
 INDEX. 171 
 
 Tbe references are to pages. 
 
 AMERICA 
 
 grand jury brought to, in settlement of, 31. 
 civil rights become strongly developed in, 32. 
 modern view of grand jury in, 40. 
 
 AMICUS CURIAE 
 
 challenge by attorney as, 71. 
 
 ANCIENT 
 
 oath of grand jury, 20, 92, 98. 
 
 grand jury, powers of, broader than modern, 99. 
 
 ANGLO-SAXON 
 
 origin of grand jury, 2. 
 sectatores, 3. 
 
 APPEAL 
 
 a Norman institution, 3. 
 
 rise of the, 9, 10. 
 
 a personal action, 9. 
 
 cognizable in the King's Court, 9. 
 
 prosecution of, 13. 
 
 promotes importance of accusing body, 7. 
 
 how made, 12. 
 
 exceptions to, 17, 21. 
 
 trial by country when woman makes, 21. 
 
 APPELLEE 
 
 may elect between battle and ordeal, 10, 12. 
 
 battle and country, 21. 
 right to decline battle, 17. 
 could not retract after choice made, 21. 
 
 APPELLOR 
 
 enrolment of complaint, 12. 
 hearing of, 12. 
 
 reading of coroner's rolls, 12. 
 hearing before justices in eyre, 12. 
 
 APPOINTMENT OF FOREMAN. SEE FOREMAN. 
 
 ARIZONA 
 
 oath of grand juror in, 980. 
 
 ARKANSAS 
 
 qualifications of grand jurors, 62. 
 excusing grand jurors, presumption of, 85. 
 oath of grand juror, 96n. 
 endorsement of prosecutor's name, 135. 
 
 ARMORIES 
 
 workmen in, exempt from jury service, 73.
 
 172 INDEX. 
 
 The references are to pages. 
 
 ARRAY 
 
 objections to, 65. 
 
 motion to quash, when not sustained, 67. 
 if quashed, tales not to issue, 52. 
 challenge to, must be substantiated by oath, 68. 
 causes of, 66. 
 when made, 68, 85. 
 how made, 70. 
 in Federal Courts, 69, 85. 
 ARREST 
 
 indictment found without previous, 114. 
 ARREST OF JUDGMENT. SEE JUDGMENT. 
 ARSENALS 
 
 workmen in, exempt from jury service, 73. 
 ARTICLES OF INQUIRY, 11. 
 
 reading of to accusing body, 20. 
 ASHFORD vs. THORNTON, wager of battle, 13. 
 ASSENT 
 
 of grand jury to amendment of indictment, 154. 
 ASSIZE 
 
 writs awarding, 17. 
 of Clarendon, 7, 8, n, 14, 17, 18. 
 its provisions, 7. 
 
 offenders to be tried by ordeal, 7. 
 itinerant courts created by, 7. 
 four townspeople referred to in, 7, 23. 
 marks important change in law, 7. 
 implied prohibition of, 8. 
 Prof. Thayer on, 18. 
 of Northampton, 7, u, 17. 
 provisions of, 9. 
 
 divided kingdom into six circuits, 8, 9. 
 ASYLUMS 
 
 investigation into, 121. 
 ATHENIANS, 
 
 existence of juries among, i. 
 ATTACHMENT, 
 
 to compel attendance of witnesses, 133. 
 of grand juror for misconduct, 166. 
 ATTENDANCE. 
 
 of grand jurors, differences in statutes requiring, 47. 
 at time fixed by statute, 48. 
 before and after regular term, 54. 
 immaterial how procured, 54. 
 after jury empaneled and sworn, 51. 
 of improper person, 49, 139.
 
 INDEX. 173 
 
 The references are to pages. 
 
 ATTENDANCE Continued. 
 
 in Pennsylvania, 52. 
 in Federal Courts, 55. 
 in England, 57. 
 of witnesses, grand jurors cannot compel, 104. 
 
 how procured, 132. 
 ATTORNEY GENERAL 
 
 authority of, to prefer indictment, 107, in. 
 acting without leave of court, ill. 
 cannot stipulate what the evidence is, I2on. 
 moves to expunge presentment in Georgia, 160. 
 for the crown, authority of, 113. 
 AUTHORITY 
 
 of attorney general for the crown, 113. 
 of district attorney to prefer indictment, 107, no. 
 of ancient grand jury broader than modern, 99. 
 of grand jury, limitation upon in time of Cromwell, 99. 
 differences in extent of, 102, 109. 
 Chief Justice Chase on, 102. 
 
 to inquire into all offences within jurisdiction, 103. 
 restraint upon, 102, 165. 
 to punish witnesses, 104, 165. 
 inquisitorial, of grand jury, 104. 
 devolving upon grand jurors by statute, 121. 
 to administer oath to witnesses, 137, 165. 
 grand jurors exceed, in making report, 157. 
 of court over grand jurors, 163. 
 delegation of, by officer, 58. 
 of de facto officers, 58. 
 AWARD 
 
 of writ of inquest in real actions, 17. 
 BAILIFF 
 
 inquest summoned by, 2. 
 inhabitants of hundred enrolled by, 20. 
 BALWIN, JUDGE, Rector v. Smith, 159. 
 BANISHMENT, 9. 
 BATTLE 
 
 wager of, 3, 6, 7, 10, 21. 
 trial by, rise of, 9. 
 
 last instance of, 13. 
 exceptions to, 17, 21. 
 when awarded or refused, 10. 
 appellee's election between ordeal and, 10. 
 right to choose, 21. 
 right to decline, 17. 
 appeals of felony, 21. 
 in real actions, 17.
 
 174 INDEX. 
 
 The references are to pages. 
 
 BENTHAM 
 
 secrecy in grand juror's oath, 116. 
 BIAS OF GRAND JUROR. SEE FAVOR. 
 BIENNIAL VISIT OF SHERIFF, 5. 
 BIGAMY. SEE POLYGAMY. 
 BILL. SEE INDICTMENT; TRUE BILL. 
 BILLA VERA, 147. 
 
 se defendo, 148. 
 
 BLACKSTONE, SIR WILLIAM 
 view of leet and tourn, 5. 
 on qualification of grand jurors, 61. 
 powers of attorney general for the crown, 113. 
 BOOKS AND PAPERS 
 
 production of, how procured, 133. 
 relevancy of, 133, 143. 
 BOROUGH 
 
 incorporation of, 121. 
 
 court will not review facts as to, 121. 
 BRACTON 
 
 four freeman of every vill, 15. 
 
 no part of inquest, 15. 
 institution of prosecutions, 19. 
 indictment by grand jury, 24. 
 grand jurors, qualifications of, 60, 62. 
 oath of, 20, 98, 1 1 6. 
 wholly under control of court, i6. 
 trial by jury, 21. 
 
 proceedings before petit jury, 22. 
 peremptory challenges not known, 75. 
 oath of petit jurors, 22. 
 BRADFORD, ATTORNEY GENERAL 
 
 powers of grand jury, 100. 
 BRANCH'S CASE 
 
 evidence heard in public, 117. 
 
 BREWER, MR. JUSTICE. Case of In re Wilson, 47. 
 BRIDGES 
 
 presentment of inquest in relation to, 25, 121. 
 appropriations for, I27n. 
 BRITTON 
 
 grand jury in time of, 25. 
 
 oath of, 25, 99, 116. 
 duties of, 25. 
 
 wholly under control of court, 163. 
 peremptory challenges not known, 75. 
 BROWN vs. STATE, administration of oath, 92. 
 BRYAN, JUDGE, Oswald's case, 31.
 
 INDEX. 175 
 
 The references are to pages. 
 
 BURR, AARON, TRIAL OF. 
 
 challenge for favor, 74, 82. 
 
 supplemental charge to grand jury, 125. 
 BUSONES 
 
 called by itinerant justices, 20. 
 BYSTANDERS 
 
 selection of talesmen from, 50. 
 
 Federal grand jurors not selected from^ 55. 
 
 talesman chosen from, appointed foreman, gon. 
 CALIFORNIA 
 
 grand jury in, 44. 
 
 oath of grand juror, 970. 
 CAPITAL CRIME. SEE INFORMATION. 
 CAPITAL PUNISHMENT 
 
 conscientious scruples against, 76. 
 CAPITULA or articles of inquiry, 11. 
 
 inquest to answer fully, n. 
 
 reading of, 99. 
 CASE OF 
 
 Aaron Burr, 74, 82, 125. 
 
 Ashford v. Thornton, trial by battle, 13. 
 
 Branch, evidence heard in public, 117. 
 
 Brown r. State, administration of oath, 92. 
 
 College, Stephen, ignoramus, 28. 
 
 Conu v. Crans, approaching grand juror, 162. 
 
 v. English, authority of district attorney, ill. 
 v. Knapp, list of witnesses, 136. 
 v. Morton, talesmen, 54. 
 
 Crowley v. United States, disqualification of grand juror, 74. 
 
 Ellis, disregarding oath, 166. 
 
 Ex Parte Bain, altering indictment, 155. 
 
 Hardy, attendance of crown solicitor, 127. 
 
 In re Wilson, lawful grand jury, 47i 56. 
 
 Jillard v. Com., swearing witnesses, 138, 
 
 Lewis, standing jurors aside, 83. 
 
 Oswald, coercion of grand jury, 31. 
 
 People v. Petrea, de facto grand jury, 58. 
 
 Rector v. Smith, libellous report of grand jury, 158. 
 
 Rex v. Dickinson, witnesses not sworn, 139. 
 
 Rowand v. Com., second bill sent to grand jury, 112. 
 
 Scarlett, unlawfully procuring indictments, 42, 117. 
 
 Shaftesbury, ignoramus, 29, 117, 129. 
 
 Sheridan, challenge, 75. 
 
 State v. Cowan, control of court over grand jury, 165. 
 
 Summerhayes, contempt of court, 165. 
 
 Windham, fining grand jurors, 164. 
 
 Zenger, ignoramus, 32. 

 
 176 INDEX. 
 
 The references are to pages. 
 
 CAUSE 
 
 challenge for, 69, 77, 8211. 
 
 individual jurors may be challenged for, 70. 
 
 to be shown on challenge for favor, 74. 
 CAUSEWAYS 
 
 presentment of inquest in relation to, 25. 
 CHALLENGE 
 
 error to refuse right of, 65. 
 
 legislature cannot take away right of, 70. 
 
 defendant must demand right to, 71. 
 
 to array, 66, 68. 
 
 when made, 68, 85. 
 
 must be substantiated by affidavit, 68. 
 
 state's attorney cannot challenge panel, 70. 
 
 peremptory, 'not allowed, 75, 82. 
 
 unknown in time of Bracton and Britton, 75. 
 
 for favor, 70, 73, 74, 76, 77, 82. 
 how determined, 82. 
 
 to be made before grand juror sworn, 74. 
 where opinion formed and expressed, 76. 
 upon ground of relationship, 80. 
 examination on voir dire not permitted on, 81. 
 
 of grand juror for cause, 69, 77, 82. 
 how made, 70. 
 by whom made, 71. 
 absence from domicile, 81. 
 
 made and withdrawn cannot be assigned for error, 70. 
 
 exclusion of grand juror on, 72. 
 
 when not allowed in Iowa, 70. 
 
 in Federal Courts, 69. 
 
 Federal grand jury depleted by, 55. 
 
 of petit jurors for cause, 23, 25. 
 CHARGE OF THE COURT 
 
 when made, 124. 
 
 as means of communication with public, 124. 
 
 effect of omission of, I24n. 
 
 supplemental, when given, 125. 
 
 at whose request made, 125. 
 
 in Aaron Burr's case, 125. 
 
 Judge Cranch's view, 126. 
 
 when inflammatory, 126. 
 
 delivered by Chief Justice Shaw, 43. 
 
 CHARGES TO GRAND JURIES, Judge Addison's, 101, 124. 
 CHARLES II, attack on grand jury, 28, 31. 
 CHASE, CHIEF JUSTICE, powers of grand jury, 102.
 
 INDEX. 177 
 
 The references are to pages. 
 
 CHEROKEE NATION 
 
 powers of, not affected by Constitution, 33n. 
 CHITTY, qualifications of grand jurors, 60. 
 CHOOSING GRAND JURY, 20. 
 
 CHRISTIAN, MR, secrecy in grand juror's oath, 116, 118. 
 CIRCUITS 
 
 division of kingdom into six, 8, 9. 
 CIVIL CAUSES 
 
 only considered by sectatores and nambda, 3. 
 CIVIL RIGHTS 
 
 brought to America by Englishmen, 31. 
 
 become strongly developed, 32. 
 CLARENDON, ASSIZE OF, 7, 8, n, 14, 17, 18. 
 
 its provisions, 7. 
 
 offenders to be tried by ordeal, 7. 
 
 marks important change in law, 7. 
 
 itinerant courts created by, 7. 
 
 implied prohibition of, 8. 
 
 four townspeople referred to in, 7, 23. 
 
 Prof. Thayer on, 18. 
 CLARK, MR. JUSTICE, 129. 
 CLERGY 
 
 forbidden to participate in ordeal, 18. 
 CLERICAL ERRORS IN INDICTMENT, 154. 
 CLERK 
 
 of grand jury, how selected, 91. 
 
 not to disclose secrets, 120. 
 signing name of foreman, I48n. 
 
 of court to swear witnesses, 137. 
 
 to record finding, 156. 
 COERCION 
 
 of grand jury in College's Case, 28. 
 
 in Shaftesbury's Case, 29. 
 
 in Pennsylvania, 31. 
 
 in Mississippi in 1902, 310, 
 
 affidavits of grand jurors received to show, 119. 
 
 of sheriffs in return of grand jury panel, 30. 
 COKE, LORD 
 
 views of on origin of number of grand jury, 6. 
 
 on evils of grand jury system, 41. 
 
 comment on unlawful grand jurors, 60. 
 COLLATERAL PROCEEDINGS 
 
 objections to irregularity cannot be raised in, 88. 
 
 attack on order of discharge, 162. 
 COLLEGE, STEPHEN, Case of, 28. 
 COLORADO 
 
 oath of grand juror in, 97n. 
 
 12
 
 178 INDEX. 
 
 The references are to pages. 
 
 COMMISSION 
 
 oath of grand juror as his, 94. 
 COMMISSIONERS. SEE JURY COMMISSIONERS. 
 COMMITMENT OF WITNESSES, i32n. 
 COMMITTING MAGISTRATE. SEE MAGISTRATE. 
 COMMON FAME. SEE PUBLIC FAME. 
 COMMON LAW 
 
 Statute of Ethelred declaratory of, 5. 
 
 disqualification imposed by, 73. 
 
 right, challenge 'for favor a, 74. 
 
 examination of witnesses by grand jurors, 127. 
 
 method of swearing witnesses, 137. 
 COMMONWEALTH 
 
 v. Crans. Approaching grand juror, 162. 
 
 v. English. Power of district attorney, in. 
 
 v. Knapp. List of witnesses, 136. 
 
 v. Morton. Talesmen, 54. 
 
 v. Sheppard. Authority of district attorney, 114. 
 COMMUNICATION 
 
 with grand jury forbidden except through court, 103, i6z 
 
 sent to grand jury by court, 126. 
 
 privileged, 143, 159. 
 
 report of grand jury not a privileged, 159. 
 COMPETENCY OF GRAND JUROR 
 
 challenge to array does not extend to, 68. 
 
 when objection waived, 72. 
 
 age as affecting, 72. 
 
 restored before service, 76. 
 
 opinion as affecting, 80. 
 
 relationship as affecting, 80. 
 
 COMPLAINT OF APPELLOR, enrollment of, 12. 
 COMPURGATION 
 
 trial by, 4. 
 
 disappearance of, in criminal cases, 8. 
 CONCEALMENT, of proceedings by inquest, 21. 
 CONCURRENCE 
 
 of twelve grand jurors to find bill, 26, 56, 108, 147. 
 
 when grand juror may testify as to, 119. 
 CONNECTICUT 
 
 forfeiture by grand juror in, I2n. 
 
 oath of grand juror in, 9511. 
 
 defendant may appear before grand jury in, 103. 
 
 town meeting chooses grand jurors in, 122. 
 CONSANGUINITY 
 
 gra'nd jurors related to accused by, 81.
 
 INDEX. 179 
 
 The references are to paces. 
 
 CONSCIENTIOUS SCRUPLES 
 
 against capital punishment, 76. 
 against taking oath, gin. 
 CONSERVATIVE VIEW of Grand Jury, 43- 
 CONSTITUTION 
 
 of United States omits grand jury, 32. 
 
 remedied by Fifth Amendment, 32, 132. 
 Fourteenth Amendment to, 33. 
 does not affect powers of Cherokee Nation, 330 
 of Pennsylvania, 33. 
 
 declaration of rights in, 34. 
 CONTEMPT 
 
 witness refusing to testify in, 88, 133. 
 when witness not in, 121, 133. 
 when grand juror in, 165. 
 CONTROL of Court over grand jurors, 163. 
 CONTINUANCE OF FRANK PLEDGE under the Normans, 6. 
 CONVICTION 
 
 evidence to justify, 102, 105, 141. 
 CORONER 
 
 duty to enrol appellor's complaint, 12. 
 rolls of, when read, 12. 
 
 disagreement in, 12. 
 
 when member of jury disqualified as grand juror, 80. 
 to summon grand jurors when sheriff disqualified, 59. 
 CORSNED, trial by, 4. 
 COUNT 
 
 finding as to one or more, 147. 
 finding as to part of, void, 147. 
 COUNTRY, TRIAL BY THE. See Trial by Jury. 
 COUNTY ATTORNEY, I27n, I28n. 
 COUNTY BRIDGE, grand jury to authorize, 121. 
 COURT, 
 
 suitors of the, 3. 
 
 interrogation of grand jury by the, 21, 27, 116. 
 order or precept issued by, 48. 
 seal of, 48. 
 
 may order signing of sheriff's return, 49. 
 orders summoning of talesmen, 50. 
 not to furnish names, 51. 
 
 implied power of to summon grand jurors, 52. 
 grand jury, summoned prior to regular term of, 54. 
 
 detention after expiration of term of, 54. 
 may not arbitrarily remove grand juror, 84. 
 may excuse grand juror, 84. 
 unfavorable to technical objections, 86.
 
 ISO INDEX. 
 
 The references are to pages. 
 
 COURT Continued. 
 
 illegally impaneling grand jury, 89. 
 
 foreman appointed by, 90. 
 
 matters given in charge of grand jury by, 101, 106. 
 
 to order additional testimony produced, 104. 
 
 district attorney to obtain leave of, in, 115. 
 
 hearing of evidence in open, 117, 127, 163. 
 
 contempt of, 121, 165. 
 
 charges grand jury when, 124. 
 
 when grand jury in, 130. 
 
 swearing witnesses in open, 137. 
 
 will not inquire as to sufficiency of evidence, 146. 
 
 findings not read in open, 156. 
 
 how indictments brought into, 156. 
 
 relation of grand jury to, 163. 
 COURT LEET, 5, 8. 
 COURT ROLLS of the eyres, 11, 24. 
 COURTS, ITINERANT. SEE ITINERANT COURTS. 
 CRABB 
 
 on question whether grand jury also tried offenders, 22. 
 CRANCH, JUDGE, supplemental charge, 126. 
 CRIMINAL CASES 
 
 disappearance of compurgation in, 8. 
 
 petit jury in, 10. 
 CRIMINAL PLEAS 
 
 not considered by nambda, 3. 
 CRIMINATE 
 
 where testimony of witness will tend to, 133. 
 CROMWELL, OLIVER, oath in time of, 99. 
 CROWLEY vs. UNITED STATES. R. S. U. S. Sec. 1025, 74. 
 CROWN 
 
 growth of influence of, 8. 
 
 pleas of, administered by itinerant justices, 8. 
 
 authority of attorney general for, 113. 
 CRY, HUE AND, 4, 12. 
 
 CURIA REGIS, sheriff selected from justices of, 8. 
 CUSTOM 
 
 as to number of grand jurors, 6. 
 
 grand jury a growth of, 26. 
 
 of weregild, 4. 
 
 disuse of, 9. 
 DATE 
 
 of finding bill, endorsement of, 151. 
 
 of filing bill, endorsement of, 157.
 
 INDEX. l8l 
 
 The references are to paces. 
 
 DAVIS. DANIEL 
 
 opinion on grand jury, 36. 
 
 condemns grand jury reports, 158. 
 
 re-assembling grand jury after discharge, 161. 
 DECLARATION OF RIGHTS (PA.), 34- 
 
 DE FACTO 
 
 officers, authority of, 58. 
 
 grand jury, 58. 
 DEFECT 
 
 what is, within meaning of R. S. U. S. Sec. 1025, 74. 
 
 appearing on face of indictment, ground for demurrer, 86. 
 
 cannot be attacked in collateral proceeding, 88. 
 
 in record, may be amended, 93. 
 
 in indictment may be amended, 154 
 DEFECTIVE PROCEEDINGS 
 
 when cured by plea, 56. 
 DEFENDANT 
 
 presence of, when evidence heard, 103, 140. 
 
 tampering with witnesses, 143. 
 
 voluntarily testifying before grand jury, 144. 
 
 compelled to testify against himself, 145. 
 
 found to be insane, 148. 
 
 initials of, used in bill, 152. 
 
 held in bail after ignoramus, 153. 
 DEFICIENCY 
 
 in number of grand jurors, 51, 55. 
 DELIBERATIONS OF GRAND JURY 
 
 to be private, 28, 29, 119. 
 
 presence of district attorney during, 128. 
 
 unauthorized person, 139 
 DE MEDIETATE LINGUAE, 64. 
 DEMURRER 
 
 filed when defect on face of indictment, 86. 
 
 cannot be sustained for omission of prosecutor's name, 13511. 
 DEPOSITIONS 
 
 of witnesses, when received, 143. 
 
 DEVELOPMENT OF GRAND JURY in time of Edward III, 26. 
 DILIGENTLY INQUIRE 
 
 duty of grand jury to, 101, 105. 
 
 meaning of in Pennsylvania, 101. 
 DIRECTORY 
 
 statutory provisions held to be, 49, 81, 136. 
 
 statute, grand jurors irregularly drawn under, 57. 
 
 provisions for filing are generally, 157. 
 DISAGREEMENT of Coroner's Rolls, 12.
 
 I 82 INDEX. 
 
 The references are to pages. 
 
 DISAPPEARANCE 
 
 of compurgation in criminal cases, 8. 
 
 of accusing bodies of hundreds, 27. 
 DISCHARGE 
 
 of grand juror for cause by the court, 84. 
 
 of grand jury presumed, 89, 160. 
 
 illegally empaneled, 89. 
 for contempt of court, 165. 
 upon completion of duties, 160. 
 reassembling after, 160. 
 
 collateral attack on order of, 162. 
 
 of foreman presumed, 91. 
 DISCLOSURE 
 
 of evidence, when to be made, 118. 
 
 of proceedings, 162. 
 
 of how juror voted, 119. 
 
 of knowledge to fellow jurors, 132. 
 DISQUALIFICATION 
 
 of Federal grand jurors, 63, 69, 73. 
 
 and exemption, distinction between, 72. 
 
 imposed by statute or common law, 73. 
 
 ruling in Crowley v. United States, 74. 
 
 absence from domicile as a, 81. 
 
 religious belief not a, 81. 
 
 of grand juror cured before service, 76. 
 
 of foreman, 90. 
 
 DISQUALIFIED PERSON, presence of one will vitiate indictment, 87. 
 DISTRICT 
 
 Federal grand jurors selected from body of, 55. 
 
 summoned from part of, 56. 
 DISTRICT ATTORNEY 
 
 improperly excludes grand juror, 84. 
 
 gives matters in charge of grand jury, 101, 107, no. 
 
 cannot permit defendent's witnesses to appear before grand 
 jury, 103, 141. 
 
 may summon additional witnesses, 104. 
 
 private prosecutor to complain to, 109, 162. 
 
 to obtain leave of court, in, 115. 
 
 bill to be earmarked, 114. 
 
 authority of, in Pennsylvania, 130. 
 
 to sign indictment, 134. 
 
 hands indictments to foreman, 134. 
 
 attends grand jury, 127. 
 
 to conduct examination of witnesses, 139. 
 
 not to express opinion to grand jury, 142.
 
 INDEX. 183 
 
 Tbe references are to paces. 
 
 DISTRICT ATTORNEY-C0*i/mi*rf. 
 
 presence during deliberations, 128. 
 
 indictments sent into court by, 156. 
 
 may enter nolle pros, 142. 
 
 may not testify, when, 120. 
 
 stenographer as assistant to, 139. 
 DISUSE OF WEREGILD, 9. 
 DIVERSE VIEWS, 
 
 as to origin of grand jury, I. 
 
 as to utility and abolition of grand jury, 35. 
 DOCUMENTS. SEE BOOKS AND PAPERS. 
 DOMICILE 
 
 when absence from will disqualify, 81. 
 DRAWING. SEE SELECTION. 
 DRUNKENNESS OF GRAND JUROR, 166. 
 
 DUE PROCESS OF LAW, 33- 
 
 defined in Hurtado v. California, no U. S. 516, 39n. 
 DUTY 
 
 of twelve thanes to accuse, 3. 
 
 of accusing body to present offenders, II. 
 
 of king's sergeants to enroll appellor's complaint, 12. 
 
 of coroner to enroll appellor's complaint, 12. 
 EARL OF SHAFTESBURY'S CASE, 29. 
 EASTERN STATES 
 
 conservatism of, on grand jury, 44. 
 EDWARD III 
 
 and rise of grand jury, 2. 
 
 development of grand jury in time of, 26. 
 ELECTION 
 
 by appellor between battle and ordeal, 10. 
 ELECTOR. SEE VOTER. 
 ELLIS' CASE, disregarding oath, 166. 
 EMPANELED 
 
 when grand jurors are, 88, 89. 
 
 grand jury may be, at any time during term, 88. 
 
 when grand jury illegally, discharge of, 89. 
 
 may investigate offence committed after being, 103. 
 EMPANELING 
 
 irregularity in, 68, 8sn, 89. 
 
 witness must testify although, 88. 
 
 objections to grand jurors before, 64n, 69n, 8sn. 
 
 talesmen may be added after, 51. 
 
 record must show, 89. 
 
 after new statue prescribes different method, 89.
 
 184 INDEX. 
 
 The references are to pages. 
 
 ENDORSEMENT 
 
 on bill, not evidence of empaneling, 89. 
 of names of witnesses, 135. 
 of name, of prosecutor, 135. 
 of finding, 146, 148, 151. 
 of date of finding, 151. 
 of date of filing, 157. 
 effect of, when printed, 151. 
 
 parcel of indictment, 150. 
 
 sufficiency of, 150. 
 
 manner of, when directed by statute, 151. 
 ENGLAND 
 
 selection and summoning grand jurors, 57. 
 
 court cannot order grand juror to withdraw, 84. 
 
 evidence upon which bill found, 105. 
 
 when new bill sent to subsequent grand jury, 152. 
 
 modern view of grand jury in, 38. 
 
 grand jury brought to America, 31. 
 ENROLMENT 
 
 of appellor's complaint, 12. 
 ERROR 
 
 in venire, 49. 
 
 in returning bill, I47n. 
 ESCAPES 
 
 from gaol, inquiry by inquest into, 25. 
 ETHELRED II. 
 
 law of, 2, 3. 
 
 declaratory of common law, 5. 
 ordained as frith-bot, 6. 
 
 oath in time of, 98. 
 EVIDENCE 
 
 challenge to array to be supported by, 68. 
 
 of appointment of foreman, 90. 
 
 of formation of opinion not clear, 78. 
 
 of prosecution only to be heard, 103. 
 
 presence of defendant at hearing of, 103, 140. 
 
 grand jurors may demand production of additional, 104. 
 
 incompetent, not to be heard, 142. 
 
 hearsay and irrelevant, not to be received, 142. 
 
 uncorroborated, of accomplice, 144. 
 
 which tends to incriminate, 133. 
 
 production of books and papers as, 133. 
 
 grand jurors governed by ordinary rules of, 142. 
 
 presentment after hearing, 105. 
 
 to justify finding true bill, 102, 105, 141. 
 
 grand jury to determine sufficiency of, 142.
 
 INDEX. 185 
 
 The references are to paces. 
 
 EVIDENCE Continued. 
 
 sufficiency of, 146. 
 
 to be heard or indictment void, 132, 155. 
 
 when not to be revealed, 118. 
 
 attorney general cannot stipulate as to, izon. 
 
 hearing of, in open court, 117, 127, 163. 
 
 record offered in, 119. 
 EXAMINATION 
 
 of witnesses by district attorney, 139. 
 EXCEPTIONS TO APPEAL, 17, 21. 
 EXCLUSION 
 
 of negroes from panel, 66. 
 
 white man cannot complain, 67. 
 
 of grand juror on challenge, effect of, 72. 
 by district attorney, 84. 
 
 of foreman for disqualification, 90. 
 EXCUSING GRAND JURORS, 84, 160. 
 
 presumption of in Arkansas, 85. 
 EXEMPTION 
 
 from service as grand jurors, 72. 
 
 distinction between disqualification and, 72. 
 EXISTENCE 
 
 of grand jury among Athenians, i. 
 EX PARTE BAIN, altering indictments, 155. 
 EXPUNGING presentment from minutes, 160. 
 EYRE 
 
 held every seven years, 9, 12. 
 
 held by itinerant justices, 8, 19. 
 
 how held, 19. 
 
 hearing appellor before justices in, 12. 
 
 court rolls of, II. 
 
 of 1218-19, order of King in Council, 18. 
 FAME, PUBLIC. SEE PUBLIC FAME. 
 FAVOR 
 
 grand jurors must stand indifferent, 62, 81. 
 
 individual jurors may be challenged for, 70, 73. 
 
 challenge for, a common law right, 74. 
 
 when prosecutor on grand jury, 78. 
 upon ground of relationship, 80, 81. 
 examination on voir dire, Si. 
 cannot be made after indictment, 85. 
 in Aaron Burr's Case, 74, 82. 
 
 conscientious scruples against capital punishment, 76. 
 FEALTY 
 
 pledge of, by amercers, 20.
 
 I 86 INDEX. 
 
 The references are to pages. 
 
 FEDERAL COURTS 
 
 number of grand jurors in, 45. 
 
 selecting and drawing grand jurors, 55. 
 
 qualifications of grand jurors, 63, 73, 74. 
 
 challenge to array, when made, 69, 85. 
 
 standing aside grand jurors, 83. 
 
 swearing witnesses, 137. 
 
 when witnesses disclose other offences, no. 
 
 view of authority of grand jurors, 100. 
 
 extent of grand jury's powers, 102, 109. 
 
 objections to indictment made by plea in abatement, 86. 
 
 averse to quashing on technical grounds, 86. 
 
 district attorney to sign indictment, 134. 
 
 may summon additional witnesses, 104. 
 
 proceedings by information, 115. 
 
 rule as to treason, 144. 
 
 contempt of, 165. 
 FELONY 
 
 trial by battle in appeal of, 21. 
 
 FIELD, MR. JUSTICE, powers of grand jury, 108. 
 FIFTH AMENDMENT. SEE AMENDMENT. 
 FILING OF INDICTMENTS, 157. 
 FINDING OF GRAND JURY 
 
 cannot be impeached, 119. 
 
 influenced by district attorney, 128. 
 
 endorsement of, on bill, 146, 148, 150. 
 
 number to concur, 147. 
 
 as to part of a count void, 147. 
 
 true bill as to some of the defendants, 148. 
 
 incomplete or insensible, 148. 
 
 omission of words "true bill," 149. 
 
 name of offence no part of, 150. 
 
 reconsideration of, 150. 
 
 failure to endorse, 151. 
 
 date of, to be endorsed on bill, 151. 
 
 not read in open court, 156. 
 
 must be recorded, 156. 
 
 freedom from control of court in, 164. 
 
 if improper, may be recommitted, 165. 
 FINING GRAND JURORS 
 
 declared illegal, 164. 
 
 Ellis' Case, 166. 
 FLORIDA 
 
 age limit for grand jurors, 72. 
 
 oath of grand juror, 95n. 
 
 endorsement of prosecutor's name, 135.
 
 INDEX. 187 
 
 The references are to pages. 
 
 FOREMAN 
 
 how selected, 90. 
 
 appointment of, noted on minutes of court, 90, 151. 
 
 to be sworn, 93. 
 
 should not be illiterate, 90. 
 
 pro tern, may be chosen, 90. 
 
 need not be reappointed when vacancy filled, 85. 
 
 receives indictments from district attorney, 134. 
 
 authority of, to swear witnesses, 137. 
 
 hands indictment to crier, 154. 
 
 when to sign return, 150. 
 
 signature of, as evidence of empaneling, 89. 
 
 vouches for regularity of proceedings, 151. 
 to final report, 157. 
 
 name of, signed by clerk, 14811. 
 variance in, 149. 
 
 when endorsed as prosecutor, 136. 
 
 discharge of, when presumed, 91. 
 FORM 
 
 amendment of matter of, 154. 
 FORSYTH 
 
 reference to the four townships, 16. 
 
 participation of grand jury in trial of offenders, 21. 
 FOURTEENTH AMENDMENT. SEE AMENDMENT. 
 FOURTH LATERAN COUNCIL 
 
 abolishes ordeal, 18. 
 
 Professor Thayer on, 18. 
 FOUR TOWNSHIPS. SEE TOWNSHIPS. 
 FRANK PLEDGE 
 
 system of, 3, 4, 5. 
 
 view of, 5, 8. 
 
 continuance under Normans, 6. 
 
 falls into disuse, 8. 
 
 FREE AND LEGAL MEN. SEE QUALIFICATIONS OF GRAND JURORS. 
 FREEHOLDERS. SEE QUALIFICATIONS OF GRAND JURORS. 
 FREEMEN 
 
 four of every vill, 14, 15. 
 
 mentioned by Bracton, 15. 
 
 no part of the inquest, 15. 
 
 use of, not obligatory, 16. 
 
 limited to concurrence in finding of inquest, 16. 
 FRITH-BOT, 6. 
 FUGITIVE FROM JUSTICE 
 
 district attorney may act when defendant is, no.
 
 1 88 INDEX. 
 
 The references are to pages. 
 
 GAOLS 
 
 inquest to inquire as to, 25. 
 
 illegal detention of persons therein, by sheriff, 25. 
 
 escapes from, inquiry into, 25. 
 GEMOT, meeting of, 5. 
 GLANVILLE 
 
 institution of prosecutions in time of, 10. 
 
 four townships not mentioned by, 14. 
 
 presentment on suspicion, 15. 
 
 great interest of treatise of, 9. 
 GEORGIA 
 
 oath of grand juror, 9511. 
 
 grand jurors to revise taxes, 122. 
 
 when indictment founded on presentment, 132. 
 
 expunging improper presentment, 159. 
 GRAND JURORS 
 
 instructions to, 20. 
 
 number of indeterminate, 6. 
 
 superstition in number of, 6. 
 
 manner of procuring attendance of, regulated by statute, 47. 
 
 names to be set forth in venire, 49. 
 
 impersonation of, 49. 
 
 may act after jury empaneled and sworn, 51. 
 
 selection of, in Pennsylvania, 52. 
 
 in Federal Courts, 55. 
 
 in England, 57. 
 
 from improper class, 52. 
 
 by whom summoned, 59. 
 
 manner of summoning immaterial, 54. 
 
 where incompetent persons summoned as, 52. 
 
 talesmen summoned as, 51. 
 
 qualifications of, 60, 62, 63. 
 statute 2 Henry IV, C. 9, 61. 
 
 6 George IV, C. 50, 61. 
 in Pennsylvania, 61. 
 
 Federal Courts, 61, 73, 74. 
 
 Blackstone on qualifications of, 61. 
 
 objections to personal qualifications of, 73. 
 
 incompetent, may become competent, 76. 
 
 objections to, when made, 64, 73n, 85. 
 
 challenge for favor, 70, 73, 80, 81. 
 by whom made, 71. 
 
 exclusion of, on challenge, 72. 
 
 exemption from service as, 72. 
 
 forming of opinion by, 76. 
 
 absence from domicile, 81.
 
 INDEX. 189 
 
 The references are to pages. 
 
 GRAND JL'RORS Continued. 
 religious belief. 81. 
 standing aside, 83. 
 wrongfully excluded, 84. 
 may be excused, 84, 160. 
 dismissed for cause, 84. 
 empaneling of, 89. 
 
 where manner of drawing changed by statute, 89. 
 administering oath to, 91. 
 not sworn in any cause, 122. 
 oath of, their commission, 94. 
 restraint upon authority of, 102, 109. 
 to hear witnesses for prosecution only, 103. 
 may ask for additional evidence, 104. 
 conduct examination of witnesses, 127. 
 twelve must concur to find bill, 26, 56, 107. 
 may testify when, 118. 
 sworn as witnesses, 132. 
 to investigate into public institutions, 121. 
 exceed authority when making report, 157. 
 relation to the court, 163. 
 finding of, unlawful, 164, 166. 
 drunkenness of, 166. 
 when in contempt, 121, 165. 
 not responsible for wrongful acts, 166. 
 forfeiture by, in Connecticut, I2n. 
 GRAND JURY 
 
 its origin, I, 2. 
 law of Ethelred II, 2. 
 
 declaratory of common law, 5. 
 Edward III and rise of, 2. 
 
 development in time of, 26. 
 le graunde inquest, 2, 26. 
 an accusing body, 2. 
 
 its slow growth, 5. 
 
 duty to present offences, n. 
 
 knowledge of, as to, 1 1. 
 
 failure to present offenders, 13. 
 summoned by bailiffs in each hundred, 2. 
 panel of twenty-four knights, 2. 
 Norman origin of, disputed, 2. 
 not a Norman institution, 4. 
 Assize of Clarendon, 7, n. 
 Northampton, statute of, 7, n. 
 Glanville, institution of prosecutions in time of, 10. 
 accusing inquest, its scope, 10. 
 articles of inquiry or capitula, II, 99.
 
 INDEX. 
 The references are to pages. 
 GRAND ]UR\-^Continued. 
 
 first instance of "ignoramus," I4n. 
 
 four freemen of every vill, 15. 
 
 four townships, their part in presentments, 14. 
 
 part of trial jury, 23. 
 presentment on suspicion, 15. 
 instructions of 1194, 16. 
 choosing twelve knights, 20. 
 oath of, in Bracton's time, 20, 23, 98, 116. 
 in time of Britton, 25, 99, 116. 
 in modern times, 94. 
 instructions to, 20. 
 concealment of proceedings by, 21. 
 pledge of secrecy, 21, 99, 116. 
 confusion between petit and, 21, 22, 23. 
 administering oath, 23, 91. 
 separation of petit and, 24, 25. 
 in time of Britton, 25. 
 
 increase in number in time of Edward III, 26. 
 an arm of the government, 27. 
 interrogation of, by the court, 27, 116. 
 
 in what cases not permitted, 46. 
 independence established, 28. 
 attack on by Charles II, 28. 
 case of Stephen College, 28. 
 Shaftesbury's Case, 29. 
 statute of 3 Henry VIII C 12, 30. 
 
 improper use of, 41. 
 coercion of, in Pennsylvania, 31. 
 early instances of, in United States, 3 in. 
 Case of John Peter Zenger, 32. 
 
 Constitution of United States omits reference to, 32. 
 remedied by Fifth Amendment, 32. 
 Constitution of Pennsylvania, as to, 33. 
 abolition of, 35. 
 
 in Western States, 44. 
 an irresponsible body, 40. 
 conservative view of, 43. 
 number composing, 2, 5, 7, 9, 20, 25, 45. 
 drawn and summoned by sheriff, 48. 
 failure to summon, at fixed time, 48, 68. 
 talesmen summoned to complete, 51. 
 implied power of the court to summon, 52. 
 summoning prior to regular term of court, 54. 
 detention of, after expiration of term, 54. 
 de facto grand jury, 58.
 
 INDEX. I9 1 
 
 The references are to paces. 
 
 GRAND JURY Continued. 
 
 irregularity in selecting and empaneling, 68, 89. 
 
 challenge to array or polls of, 70. 
 
 irregularity in, attacked in collateral proceeding, 88. 
 
 empaneling of, 88, 89. 
 
 two organized at same term, 89. 
 
 when manner of drawing changed by statute, 89. 
 
 appointment of foreman, 90. 
 
 clerk of, how selected, 91. 
 
 powers of ancient broader than modern, 99. 
 
 view of authority of in Federal Courts, 100. 
 
 prosecutions initiated before, 100. 
 
 Judge Addison's charges to, 101. 
 
 summoning of witnesses before, 101. 
 
 charged with matters by the court, 101, no, 116. 
 
 difference in extent of authority of, 102, 109. 
 
 restraint upon authority of, 102, 165. 
 
 extent of inquiry of, 103. 
 
 inquisitorial power of, 104. 
 
 by whom matters submitted to, 107, no, 114. 
 
 as defender of liberty of press, 115. 
 
 compelled to hear evidence in open court, 117. 
 
 impeaching finding of, 119. 
 
 to pass on public improvements, 121. 
 
 to investigate all crimes, 122. 
 
 charged by court, 124. 
 
 attended by district attorney, 127. 
 
 power of, to swear witnesses, 137. 
 
 defendant not to be present before, 140. 
 
 governed by ordinary rules of evidence, 142. 
 
 to determine sufficiency of evidence, 142. 
 
 finding of bill by, 146. 
 
 new bill submitted to, after ignoramus, 152. 
 
 presentment of finding by, 154. 
 
 report of, on completion of duties, 157. . 
 
 whether improper report of, will be allowed to stand, 159 
 
 discharged when duties completed, 160. 
 
 re-assembling members of, 160. 
 
 relation of, to the court, 163. 
 
 discharge of, presumed, 89n, 160. 
 GUILT 
 
 forming opinion as to innocence or, 76. 
 
 pritna facie presumption of, 141. 
 HABEAS CORPUS 
 
 discharge upon, refused in case of In re Wilson, 47. 
 HAMILTON, ANDREW 
 
 defends Zenger, 32.
 
 I 92 INDEX. 
 
 The references are to pages. 
 HARDY, TRIAL OF, 127. 
 HEARSAY EVIDENCE not to be received, 142. 
 HENRY VIII, Statute of 3, C. 12, 30, 41. 
 HIGHWAYS 
 
 presentment of inquest in relation to, 25. 
 HOUSEHOLDER. SEE QUALIFICATIONS OF GRAND JUROR. 
 HUE AND CRY, 4, 12. 
 HUNDRED COURTS, 
 
 compurgation in, 8, 26, 27. 
 HUNDRED 
 
 inquest summoned by bailiffs, 2. 
 
 amerced for escape of offender, 4. 
 
 meeting of gemot in, 5. 
 
 disappearance of accusing bodies of, 27. 
 
 grand jurors to be of, from which chosen, 60. 
 HUSTON, MR. JUSTICE, Huidekoper v. Cotton, 118. 
 IDAHO, oath of grand juror in, g6n. 
 IGNORAMUS 
 
 first instance of, I4n. 
 
 return of, in Stephen College's Case, 29. 
 in Shaftesbury's Case, 29. 
 
 upon many cases returned by magistrates, 35. 
 
 when to be found, 146. 
 
 reconsideration of, 150. 
 
 new bill may be submitted after, 112, 152. 
 
 defendant held in bail after, 153. 
 
 information filed after return of, 115. 
 IGNORANCE 
 
 of right to challenge no excuse, 71, 74. 
 ILLINOIS, oath of grand juror, g6n. 
 IMPEACH 
 
 finding of grand jury, 119. 
 IMPERSONATION 
 
 of grand juror, 49, 5in. 
 IMPLIED PROHIBITION 
 
 of Assize of Clarendon, 8. 
 INCOMPETENT 
 
 persons summoned as grand jurors, 52. 
 
 exempt persons are not, 72. 
 
 when absence from domicile will render grand juror, 81. 
 
 witness, indictment found upon evidence of, 143, 144. 
 
 evidence not to be received, 142. 
 
 witness testifying under objection, 145. 
 INCORPORATION OF BOROUGH 
 
 grand jury to pass upon, 121.
 
 INDEX. 193 
 
 The references are to pages. 
 INDEPENDENCE 
 
 of grand jury established, 28. 
 
 asserted in College's and Shaftesbury's Cases, 30. 
 from control of court, 163. 
 
 INDEPENDENT GAZETTE, Oswald's Case, 31. 
 INDIANA, oath of grand jurors in, g6n. 
 INDIAN TERRITORY, oath of grand juror in, o8n. 
 INDICTMENT 
 
 by accusing inquest, 22, 24. 
 upon knowledge of one grand juror, 24. 
 no guaranty of, in Constitution of United States, 32. 
 where 24 grand jurors sworn and act, 45. 
 twelve must concur to find, 26, 56, 108. 
 
 effect of less than minimum number of grand jurors on, 46, 47. 
 when no precept issued, 4811. 
 error in grand juror's name, 49. 
 
 invalid when selection made from improper class, 52. 
 effect of irregularity in drawing and selecting, 57. 
 found by grand jury unlawfully constituted, 56. 
 by de facto grand jury sustained, 58. 
 effect of Statute 11 Henry IV, C. 9, upon, 61. 
 disqualification of grand juror, 62, 63. 
 failure of defendant to challenge, 71. 
 service of exempt person, effect on, 72. 
 objections to grand jury before indictment, 73n, 85. 
 after indictment, 64, 73, 85. 
 
 raised by motion to quash or plea in abatement, 86. 
 when made by demurrer, 86. 
 plea to, a waiver of defects, 87. 
 one disqualified person will vitiate, 87, 139. 
 void if grand jury organized contrary to statute, 88, 89. 
 endorsement on, as evidence of empanelling, 89. 
 inability of foreman to write, effect on, 90. 
 sustained though no foreman appointed, 91. 
 district attorney may submit bill of, to grand jury, no. 
 to be earmarked, 1 14. 
 present when vote taken, 128. 
 hands bill to foreman, 134. 
 signature of, 134. 
 
 submitting new, after ignoramus, 112. 
 may embrace additional charges, 114. 
 not invalidated by failure to charge, I24n. 
 and presentment, 131. 
 definition of, 131. 
 
 when based upon presentment, 132. 
 13
 
 194 INDEX. 
 
 The references are to pages. 
 INDICTMENT Continued. 
 
 witnesses not heard in support of, 132. 
 names of, endorsed on, 135. 
 
 finding, 146. 
 
 when to be ignored, 146. 
 
 finding part of count of, void, 147. 
 
 found as to some of the defendants, 148. 
 
 billa vera se defendo, 148. 
 
 charging murder and found for manslaughter, 148. 
 
 reconsideration of, 150. 
 
 never alleges organization or action of grand jury, 151. 
 
 handed to crier by foreman, 154. 
 
 amendment of, 154. 
 
 resubmission of, to grand jury, 154. 
 
 reading of, to grand jury, 155. 
 
 sent into court by messenger, 156. 
 
 should be filed, 157. 
 INDICTOR, 
 
 not to serve upon petit jury, 25. 
 
 INDIFFERENT 
 
 where grand juror does not stand, 73 81. 
 
 INFAMOUS CRIME. SEE INFORMATION. 
 witness convicted of, 143. 
 
 INFLAMMATORY CHARGE 
 
 when error, 126. 
 INFORMATION 
 
 effect of Fifth Amendment on right to file, 33. 
 
 Fourteenth Amendment does not prevent States from proceeding 
 by, 33- 
 
 prosecution by in Pennsylvania, 34, 113. 
 
 filed in all cases in California, 44. 
 
 cannot be filed for capital or infamous crime, 33, 153. 
 
 sometimes filed when bill ignored by grand jury, 33. 
 
 offences not contained in original, 114. 
 
 proceeding by, in Federal Courts, 115. 
 
 district attorney must obtain leave to file, 115. 
 
 filed when bill ignored, 115. 
 INGERSOLL 
 
 on question whether offenders tried by grand jury, 22. 
 
 on secrecy in grand juror's oath, 116. 
 INITIAL 
 
 error in grand jurors' name, 49. 
 
 use of, in foreman's signature, 149. 
 
 of defendant used in bill, 152.
 
 INDEX. 195 
 
 The references are to pages. 
 INNOCENCE 
 
 presumption of, 37. 
 
 must be overcome, 1050. 
 establishment of, before petit jury, 37. 
 forming opinion as to guilt or, 76, 78. 
 INQUEST, ACCUSING. SEE ACCUSING INQUEST. 
 INQUEST, LE GRAUNDE, 2. 
 INQUEST 
 
 writs awarding, 17. 
 
 not to be bought or sold, 17. 
 provisions of Magna Charta as to, 17. 
 
 INQUIRE 
 
 grand jurors to diligently, 101, 105. 
 meaning of in Pennsylvania, 101. 
 INQUIRY 
 
 articles of, II. 
 
 of grand jury within territorial jurisdiction, 103. 
 INQUISITORIAL POWER 
 
 of grand jurors in California, 44. 
 
 of Federal grand jurors, 102. 
 
 of grand jurors in Tennessee, Missouri and Maryland, 104. 
 INSANE 
 
 bill finding defendant, 148. 
 INSTRUCTIONS 
 
 of 1194, n, 1 6. 
 
 to accusing body, 20. 
 
 INTEREST OF GRAND JUROR. SEE FAVOR. 
 INTERPRETER 
 
 presence of in grand jury room, I4on. 
 INTERROGATION 
 
 of grand jurors by court, 27, 116. 
 
 in what cases not permitted, 46. 
 IOWA 
 
 when challenge not permitted in, 70. 
 
 oath of grand juror, gSn. 
 
 affidavits received to show coercion of grand jury, 119. 
 IRREGULARITY 
 
 in selecting and drawing, 57, 66, 68. 
 
 in record, 51. 
 
 in empaneling, 8sn. 
 
 in finding, 148. 
 
 district attorney present when vote taken, 128. 
 
 accused persons may take advantage of every, 64. 
 
 in organization, technical objections to not favored, 86. 
 
 cannot be attached in collateral proceeding, 88.
 
 196 INDEX. 
 
 The references are to pages. 
 IRRELEVANT EVIDENCE 
 not to be received, 142. 
 ITER. SEE ITINERANT JUSTICES. 
 ITINERANT COURTS, 7. 
 ITINERANT JUSTICES 
 none in Normandy, 8. 
 pleas of crown administered by, 8. 
 increased jurisdiction of, II. 
 capitula delivered to, n. 
 hearing appeals before, 12. 
 optional to inquire of four townships, 16. 
 order of King in Council to Eyre 1218-19, 18, ig. 
 reading of writs, 19, 
 call four or six busones, 19, 20. 
 read articles of inquiry to inquest, 20, 99. 
 
 may require disclosure of reasons upon which inquest acted, 21. 
 presentment indented and one part delivered to, 25. 
 control of, over grand jurors, 163. 
 JAILS 
 
 inquest to inquire as to, 25, 121. 
 illegal detention of persons therein by sheriff, 25. 
 escapes from, inquiry into, 25. 
 JAMES II flees to France, 31. 
 
 JILLARD vs. COMMONWEALTH, swearing witnesses, 138. 
 JOHNSON, CHIEF JUSTICE, administration of oath, 92. 
 JUDGES 
 
 participation of, in settling grand jury, 53, 580. 
 standing grand jurors aside by, 83. 
 cannot organize two grand juries at same term, 89. 
 improperly influencing grand jury, 119, 
 may be temporarily absent from bench. 13711. 
 control over grand jurors, 163, 165. 
 in Federal Courts may commit for contempt, 165. 
 JUDGMENT, ARREST OF, 
 
 objections to array or polls cannot be raised by, 87. 
 omission of prosecutor's name not ground for, I35n. 
 objections in, cannot be raised after plea, 138. 
 admission "of irrelevant evidence, not ground for, 143. 
 when motion will be sustained, 147. 
 when words "true bill" printed on bill, 151. 
 when finding not recorded, 156. 
 JURISDICTION 
 
 of itinerant justices increased, n. 
 territorial, inquiry into offences within, 103. 
 of grand jury over its own members, 166. 
 JURORS. SEE GRAKD JUROKS.
 
 INDEX. 197 
 
 The references are to page*. 
 
 JURY COMMISSIONERS 
 
 return need not show service of venire upon, 49. 
 
 in Pennsylvania, 53. 
 
 need not swear jurors returned according to law, 54. 
 
 cannot delegate authority to another, 58. 
 
 failure to file oath, array not quashed, 66. 
 
 irregularities by, 67. 
 JURY, GRAND. SEE GRAND JURY. 
 JURY, PETIT. SEE PETIT JURY. 
 JURY, TRIAL BY, 
 
 among Scandinavians, 3. 
 
 system carried into Normandy by Rollo, 3. 
 
 introduced into England, 6. 
 JUSTICE OF THE PEACE 
 
 as grand juror, 137. 
 
 JUSTICES, ITINERANT. SEE ITINERANT JUSTICES. 
 JUSTICES, power of, over grand jury panel, 30, 41. 
 KANSAS, oath of grand juror, g6n. 
 KENTUCKY 
 
 oath of grand juror, g$n. 
 
 endorsement of prosecutor's name, 135. 
 KING JOHN 
 
 trial by jury first used in reign of, 17. 
 KING, JUDGE 
 
 warning of, 44 
 
 opinion on powers of grand jurors, 106, 164. 
 
 as obiter dictum, m, 112. 
 KING 
 
 order of, in Council to Justices in Eyre, 18, 19. 
 
 to sue on behalf of his peace, 19. 
 KING'S MERCY, inquest in, 13. 
 KING'S SERGEANTS 
 
 duty to enrol appcllor's complaint, 12. 
 KNiGHTS 
 
 panel of twenty-four, a. 
 
 presentment by twelve, 8. 
 
 choosing of, by sergeants, 20. 
 
 qualifications of twelve, 20. 
 KNOWLEDGE 
 
 matters within grand juror's, 101, 108. 
 
 of offence against United States, 109. 
 
 grand jurors to disclose how, acquired, 117. 
 
 of grand jurors, presentment upon, 119, 132. 
 
 in Pennsylvania, 108, no, 131. 
 LATERAN COUNCIL. SEE FOURTH LATERAN COUNCIL.
 
 198 INDEX. 
 
 The references are to pages. 
 
 LAW 
 
 of Reignerus surnamed Lodbrog, 3. 
 
 due process of, 33, 3911. 
 
 of the land, 3911. 
 
 every person bound to know the, 133. 
 
 changing method of empaneling, 89. 
 
 Territorial, effect of when State created, 90. 
 LEET. SEE COURT LEET. 
 LEGISLATURE 
 
 may regulate manner of making objections, 70. 
 
 cannot take away right of challenge, 70. 
 LE GRAUNDE INQUEST, 2, 26. 
 
 growth of influence of, 26. 
 LEWIS' TRIAL, standing jurors aside, 83. 
 LIBEL 
 
 grand jury ignores prosecutions for, 115. 
 
 by grand juror in report, 158. 
 LIBERTY OF THE PRESS, 115. 
 LIMITATIONS, STATUTE OF 
 
 investigations barred by, 103. 
 LIST 
 
 challenge to array for irregularity in, 66. 
 
 identity between poll book and registry, 68. 
 
 of witnesses furnished to defendant, 136. 
 LLOYD AND CARPENTER'S CASE, 44. 
 LODBROG, law of, 3. 
 
 LOUISIANA, qualifications of grand juror in, 63. 
 LUDLOW, JUDGE, Grand Jury and the Public Press, 116. 
 MAGISTRATE 
 
 preliminary hearing before, 35. 
 
 many cases returned by, ignored, 35. 
 
 grand jury review judgment of, 37. 
 
 selected because of political services, 38. 
 
 stipendiary, in England, 38. 
 
 as grand juror, 78. 
 
 private prosecutor to begin proceedings before, 109. 
 
 indictments charging offences not raised before, 114. 
 MAGNA CHARTA 
 
 Article 36, writs of inquest, 17. 
 
 applies to writs of assize, 17. 
 
 "law of the land," Art. 29, Hurtado v. California, no U. S. 516, 39n. 
 MAINE, oath of grand juror, 94n. 
 MARSHAL 
 
 summons Federal grand jurors, 55. 
 MARSHALL, CHIEF JUSTICE, 82, 125, 131. 
 MARYLAND, inquisitorial powers of grand jury in, 104.
 
 INDEX. 199 
 
 The references are to pages. 
 MASSACHUSETTS 
 
 oath of grand juror, 940. 
 
 names of witnesses not endorsed on bill, 136. 
 MATERIAL, books and papers when, 133. 
 MAYHEM 
 
 where appellor has a, 10, 21. 
 McKEAN, CHIEF JUSTICE 
 
 Oswald's Case, 31. 
 
 explains meaning of "diligently enquire," 101. 
 
 presence of witnesses for defendant, 140. 
 MESSENGER 
 
 indictments brought into court by, 156. 
 MICHIGAN, oath of grand juror, g6n. 
 MINNESOTA, oath of grand juror, o6n. 
 MINUTES OF COURT 
 
 show appointment of foreman, 90. 
 grand jury sworn, 92. 
 
 expunging presentment from, 160. 
 MISCONDUCT 
 
 of district attorney, 128. 
 
 of grand juror, 165. 
 MISSISSIPPI 
 
 coercion of grand jury, 3 in. 
 
 oath of grand juror, g6n. 
 
 examination of tax collectors' books, 122. 
 
 endorsement of prosecutor's name, 135, 136. 
 
 witnesses' names not returned with indictment, 137. 
 MISSOURI 
 
 oath of grand juror, 96*1. 
 
 inquisitorial power of grand jurors, 104. 
 
 endorsement of prosecutor's name, 135. 
 MONTANA, oath of grand juror, o8n. 
 NAMBDA 
 
 used by Scandinavians, 3. 
 
 civil cases only considered by, 3. 
 
 criminal pleas not considered by, 3. 
 
 similarity to sectatores, 4. 
 NAME 
 
 error in grand juror's name, 49. 
 
 of talesmen not to be furnished by judge, 51. 
 
 irregularity in selection, 67. 
 
 identity of, in lists, 68. 
 
 foreman unable to write, 90. 
 
 of foreman, signed by clerk, I48n. 
 variance in, 149. 
 abbreviation of, 149.
 
 20O INDEX. 
 
 The references are to pages. 
 NAME Continued. 
 
 of witnesses endorsed on bill, 135. 
 
 of prosecutor endorsed on bill, 135. 
 
 of offence endorsed on bill, 150. 
 
 ignorance of, by grand jury, 152. 
 NEBRASKA, oath of grand juror, g6n. 
 
 NEGROES 
 
 exclusion of from panel, 66. 
 NEVADA, oath of grand juror, ojn. 
 NEW BILL 
 
 may be sent to grand jury after ignoramus, 152. 
 
 may be found when first bill defective, 155. 
 NEW HAMPSHIRE, oath of grand juror, 94n. 
 NEW MEXICO, oath of grand jurors, oSn. 
 NEW TRIAL, when awarded, 145. 
 NEW YORK 
 
 Case of John Peter Zenger, 32. 
 
 de facto grand jury, 58. 
 
 oath of grand juror, 95n. 
 NOLLE PROS 
 
 district attorney may enter, 42, 142. 
 
 prosecution by information after entry of, H5n. 
 
 new indictment for same offence after, 132. 
 NORMAN 
 
 origin of grand jury disputed, 2. 
 
 institution, petit jury a, 2. 
 
 grand jury not a, 4. 
 
 appeal, 3. 
 
 occupation, frank pledge continues under, 6. 
 
 laws, introduction of, 7. 
 NORMANDY 
 
 no itinerant justices in, 8. 
 NORTH CAROLINA 
 
 qualifications of grand juror, 62. 
 
 Branch's Case, 117. 
 
 endorsement of prosecutor, 136. 
 
 indictment found upon, testimony of interested witnesses, 143. 
 NORTH DAKOTA, oath of grand juror, o8n. 
 NORTHAMPTON 
 
 Assize of, 7, n, 17. 
 
 divided kingdom into six circuits, 8, 9. 
 
 provisions of, 9. 
 
 NORTH, LORD CHIEF JUSTICE, in case of Stephen College, 2& 
 NOT 1 FOUND 
 
 return of, 147.
 
 INDEX. 2O I 
 
 Th references are to pages. 
 NUMBER 
 
 composing grand jury, 2, 5, 9, 20, 25, 45, 55. 
 increased to twenty-four in time of Edward III, 26. 
 twelve must concur to find bill, 26, 56, 108, 147. 
 presence of more than twenty-four will invalidate indictment, 46. 
 effect of less than minimum number on indictment, 46, 47. 
 grand jurors in excess of legal, excused, 85. 
 concurring testimony of grand jurors as to, 119. 
 of talesmen to be summoned, 54. 
 composing petit jury, 3, 22, 23, 24. 
 NUNC PRO TUNC 
 
 amendment of record, 93. 
 OATH 
 
 of grand jurors, 20, 98. 
 in time of Bracton, 20, 98. 
 
 Britton, 20, 99. 
 
 Ethelred II, 98. 
 
 Cromwell, 99. 
 of trial jurors, 22. 
 of four townspeople, 22. 
 how administered to petit jurors, 23. 
 clause of secrecy in, 21, 25, 27, 116, 162. 
 grand juror appearing after administration of, 51. 
 objections by defendant before and after, 64, 85. 
 of jury commissioners, array not quashed for failure to file, 66. 
 taken by sheriff, record need not show, 68. 
 need not be readministered to foreman, 85. 
 how administered to grand jurors, 91. 
 as his commission, 94. 
 form of, 04. 
 grant of power in, 105. 
 not intended to punish innocent, 118. 
 not violated, when, 120. 
 grand jurors not sworn in any cause, 122. 
 of witnesses, administration by grand jurors, 138. 
 OBJECTIONS 
 
 to grand jurors, when made, 64, 74. 
 
 to array, 65. 
 
 to grand jurors, legislature may regulate making of, 70. 
 
 made and withdrawn, effect of, 70. 
 
 to personal qualifications of grand jurors, 73. 
 
 to grand jurors before indictment found, 73. 
 
 when to be by plea, 75, 84, 86. 
 raised by motion to quash indictment, 86. 
 technical, not favored by courts, 86. 
 waived by plea of general issue, 87.
 
 202 INDEX. 
 
 The references are to pages. 
 OBJECTIONS Continued. 
 
 made before verdict, 149. 
 
 incompetent witness testifying under, 145. 
 OFFICER 
 
 absence of, when selection made, 58. 
 
 cannot delegate authority to another, 58. 
 
 de facto, 58. 
 
 presumption of regularity of acts of, 59. 
 
 irregularity in acts of, 67. 
 
 accused may take advantage of irregular acts of, 64. 
 
 failing to file oath, array not quashed, 66. 
 
 of government, grand jury to summon as witness, 102. 
 
 exceptional power of prosecuting, 112. 
 
 investigating accounts of public, 121. 
 
 of crown attends grand jury, 127. 
 
 presence of, in grand jury room, 128, i4On. 
 OHIO 
 
 oath of grand juror, 96n. 
 
 endorsement of prosecutor's name, 135. 
 
 OKLAHOMA, oath of grand jury, 98n. 
 OPINION 
 
 forming and expressing, 76, 77. 
 
 district attorney not to express, 142. 
 
 Judge King's, on powers of grand jurors, 106. 
 
 Mr. Justice Field's, on powers of grand jurors, 108. 
 
 ORANGE, WILLIAM OF, 31. 
 ORDEAL 
 
 of fire or water, trial by, 4. 
 
 when awarded or refused, 10, 14. 
 
 assize of Clarendon prescribes trial by, 7, 8. 
 Northampton prescribes trial by, 9. 
 
 abolished by Fourth Lateran Council, 18. 
 
 supplanted on presentments by trial by jury, 18. 
 
 ORDER. AND SEE PRECEPT. 
 
 directing issuance of venire, 48, 55. 
 
 to whom issued, 48. 
 
 need not be entered of record, 48n. 
 
 verbal, sufficient, 48n, sin. 
 
 indictment quashed where no order issued, 48n. 
 
 need not be served an sheriff, 48n. 
 
 to summon talesmen, 50. 
 
 directing selection from improper class, 52. 
 
 of King in Council to Eyre of 1218-19, 18, 19. 
 OREGON, oath of grand juror, 97n.
 
 INDEX. 2O3 
 
 The references are to pages. 
 ORGANIZATION 
 
 of grand jury, technical objection to irregularity in, 86. 
 
 of two grand juries at same term, 89. 
 
 indictment never alleges, 151. 
 ORIGIN 
 
 of grand jury, I, 2. 
 
 Anglo-Saxon, 2. 
 
 Norman disputed, 2. 
 
 OSWALD'S CASE, Independent Gazette, 31. 
 PANEL 
 
 of twenty-four knights, 2. 
 
 power of justices over, 30, 41. 
 
 drawn and summoned by sheriff, 48. 
 
 substitutes not to be received for, 51. 
 
 reduced below number necessary to indict, 50, 54. 
 
 exclusion of negroes from, 66. 
 
 challenge to, 68. 
 
 State's attorney cannot challenge, 70. 
 
 exclusion of grand juror from, 84. 
 
 disqualified person on, will vitiate indictment, 87. 
 
 incomplete when oath administered, 92. 
 PAPERS. SEE BOOKS AND PAPERS. 
 PARKER, CHIEF JUSTICE, 50. 
 PARSONS, JUDGE, Com. v. Crans, 162, 165. 
 PEACE 
 
 king to sue on behalf of, 19. 
 PEARSON, CHIEF JUSTICE, State v. Branch, 117. 
 
 PEMBERTON, LORD CHIEF JUSTICE, Shaftesbury's Case, 29. 
 PENNSYLVANIA 
 
 Constitution of, 33. 
 
 Declaration of Rights in, 34. 
 
 all offences indictable, 34, 113. 
 
 beginning prosecutions in, 101. 
 
 selecting and procuring attendance of grand jurors, 52. 
 
 challenge for favor, how determined, 82. 
 
 meaning of "diligently inquire," 101. 
 
 extent of grand jury's powers, 102, 109. 
 
 grand jury to authorize public improvements, 121. 
 
 authority of grand jurors to swear witnesses, 137. 
 
 knowledge of grand jurors, f3i. 
 
 attacks on grand jury by press, 115. 
 
 coercion of grand jury, 31. 
 
 early presentments in, 3in. 
 
 when presentment made, 132. 
 
 formal defects may be amended, 154 
 
 authority of district attorney, 130.
 
 2O4 INDEX. 
 
 The references are to pages. 
 PENNSYLVANIA Continued. 
 
 improper communication with grand jurors in, 162. 
 
 contempt of court, 165. 
 
 drunkenness of grand juror, 166. 
 
 jury de medietate abolished, 63n. 
 
 PEOPLE vs. PETREA, de facto grand jury, s& 
 
 PEREMPTORY CHALLENGE 
 
 favor not a, 74. 
 
 never allowed, 75, 82. 
 
 not known in time of Bracton and Britton, 75. 
 PERJURY 
 
 committed before grand jury, 108, 118. 
 
 secrecy in oath to eliminate perjury, 116. 
 
 witnesses convicted of, 144. 
 PETIT JURY 
 
 a Norman institution, 2. 
 
 use of, in criminal cases, 10. 
 
 confusion of grand and, 21, 22, 23. 
 
 proceedings before, described by Bracton, 22. 
 
 removal of member of, on suspicion, 22. 
 
 oath of, 22. 
 
 not limited to twelve jurors, 23. 
 
 how sworn, 23. 
 
 challenge for cause, 23. 
 
 a jury of witnesses, 24. 
 
 doctrine of "afforciament" employed on, 24. 
 
 separation of, from grand jury, 24, 25. 
 
 indictor not to serve upon, 25. 
 
 defendant may establish innocence before, 37. 
 PHILADELPHIA 
 
 selection of grand jurors, 53n. 
 
 qualifications of grand jurors in, 62n. 
 PLEA 
 
 will cure defects in proceedings, 56, 87, 138. 
 
 challenge to array must be made before, 68. 
 individual jurors before, 72, 73. 
 
 objections to grand jurors to be by, 75, 86. 
 
 in abatement, when sustained, 80. 
 
 upon ground of relationship, 81. 
 two or more may be filed, 86. 
 PLEADING IN ABATEMENT. SEE ABATEMENT. 
 POLLS, CHALLENGE TO 
 
 how made, 70. 
 
 when made, 85.
 
 INDEX. 205 
 
 The references are to pages. 
 POLYGAMY 
 
 conscientious scruples against indicting for, 76. 
 challenge to grand jurors on ground of, 82. 
 POWERS 
 
 of ancient grand jury broader than modern, 99. 
 
 of grand jury, limitation upon in time of Cromwell, 99. 
 
 difference in extent of, 102, 109. 
 
 Chief Justice Chase on, 102. 
 
 restraint upon, 102, 165. 
 
 view of, in Federal Courts, ioa 
 
 extent of, to investigate, 103. 
 
 to punish witnesses, 104, 165. 
 
 inquisitorial, 104. 
 
 grant of, in oath, 105. 
 
 devolving upon grand jury by statute, 121. 
 PRATT, JUDGE. Com. v. English, in, 113. 
 PRECEPT. And see ORDER. 
 
 directing issuance of venire, 48, 55. 
 to whom issued, 48. 
 need not be entered of record, 48n. 
 verbal, sufficient, 48n. 
 indictment quashed where no, issued, 48n. 
 PRESENTMENT 
 
 by twelve senior thanes, 3, 8. 
 
 by seven jurors, 6. 
 
 by twelve knights, 8. 
 
 by twelve grand jurors, 56, 119. 
 
 by accusing body, 10, u, 21, 24. 
 
 upon public fame or suspicion, 13, 15, 19. 
 
 made only when appeal failed, 12. 
 
 failure of inquest to make, 13. 
 
 inquest in King's mercy for false, 13. 
 
 part taken by townships in making, 14, 
 
 made in writing and indented, 25. 
 
 early, in Pennsylvania, 3in. 
 
 when made in Pennsylvania, 132. 
 
 no guaranty of in Constitution of United States, 33. 
 
 remedied by Amendment V, 32. 
 
 when void under 11 Henry IV, c. 9, 61. 
 
 limitations on power of, 99. 
 
 prosecutions instituted by, 107. 
 
 grand jurors to make true, 101. 
 
 making of by grand jury, 154. 
 
 when made, 105. 
 
 definition of, 107, 130. 
 
 upon knowledge of grand jurors, 119.
 
 206 INDEX. 
 
 The references are to pages. 
 PRESENTMENT Continued. 
 
 and indictment, 131. 
 
 when indictment based upon, 132. 
 
 Daniel Davis on improper, 158. 
 
 whether improper, will be allowed to stand, 159. 
 
 making false, 163. 
 PRESS 
 
 grand jury the defender of liberty of, 115. 
 
 attacks on, by grand jury, 115. 
 PRESUMPTION. And see INNOCENCE. 
 
 of innocence, 37. 
 must be overcome, 105. 
 
 of regularity of official acts, 59. 
 
 that reason existed for excusing grand juror, 84. 
 
 that grand jurors were excused in Arkansas, 85. 
 
 that grand jury was discharged, 89, 160. 
 
 of discharge of foreman, 91. 
 
 that witnesses were sworn, 138. 
 
 prima facie, of guilt, 141. 
 PRIMA FACIE 
 
 presumption of guilt, 141. 
 
 case made out by evidence, 146. 
 
 PRINTED ENDORSEMENT ON BILL, effect of, 151. 
 PRIVATE COUNSEL 
 
 presence of, 128. 
 
 make application to send new bill to subsequent grand jury, 153. 
 PRIVILEGE 
 
 of challenge, waiver of, 71, 72. 
 
 PRIVILEGED COMMUNICATION. See COMMUNICATION. 
 PROCESS to summon witnesses, 104. 
 PROHIBITION, IMPLIED, of Assize of Clarendon, 8. 
 PROPTER AFFECTUM, 76. 
 PROSECUTION 
 
 defendant challenging must show he is under, 70. 
 
 evidence for, only to be heard, 103, 140. 
 
 institution of, Judge King's opinion, 106. 
 
 for libel, grand jury defends press in, 115. 
 PROSECUTIONS 
 
 institution of in time of Glanville, 10. 
 in time of Bracton, 19. 
 
 trial awarded with relation to manner of, 21. 
 PROSECUTOR 
 
 right of, to initiate proceedings before grand jury, 100. 
 
 private, not to intrude upon grand jury, 109. 
 
 presence of private counsel for, 128. 
 
 grand juror may testify who was, 119.
 
 INDEX. 207 
 
 The references are to page*. 
 PROSECUTOR Continued. 
 
 asking instruction to grand jury, 126. 
 
 name of, endorsed on bill, 135. 
 
 as member of grand jury, 77, 78. 
 PUBLIC FAME 
 
 presentment on, 13, 19, 24. 
 PUBLIC 
 
 institutions, investigation into, 121. 
 
 officials, investigating accounts of, 121. 
 
 improvements, supervision over, 121. 
 
 buildings approved by two grand juries, 121. 
 PUBLIC POLICY 
 
 examination on voir dire, against, 81. 
 
 wrongful acts of grand juror upheld upon, 166. 
 PUBLICATION 
 
 of finding of grand jury, 156. 
 QUALIFICATIONS OF GRAND JURORS 
 
 in Bracton's time, 60, 62. 
 
 in Sixteenth Century, 60. 
 
 Coke's comments on, 60. 
 
 Blackstone's comments on, 61. 
 
 Chitty's comments on, 60. 
 
 Statute it Henry IV, c. 9, defines, 61. 
 
 under 6 George IV, c. 50, 61. 
 
 in Federal Courts, 63. 
 
 in Pennsylvania, 61. 
 
 in Tennessee, West Virginia, Arkansas, South Carolina and 
 North Carolina, 62. 
 
 in Louisiana and Washington, 63. 
 
 need not be freeholders, 60, 62. 
 
 should be freeholders, 61, 62, 77. 
 
 aliens not competent, 60, 63, 77. 
 
 age as one of the, 72. 
 
 domicile as affecting, 81. 
 
 objections to personal, 73, 77. 
 
 legislature may regulate making of objections to, 70. 
 QUASH, MOTION TO. And see INDICTMENT. 
 
 where grand jury not summoned at proper time, 48. 
 
 when drawing and selecting irregular, 57. 
 
 where record irregular, 51. 
 
 does not show empaneling, 89. 
 
 array, when sustained, 66. 
 
 when not sustained, 67. 
 how made, 68. 
 
 objections after indictment raised by, 86. 
 
 not sustained where no effort to challenge made, 71.
 
 208 INDEX. 
 
 The references are to pages. 
 QUASH, MOTION TO Continued. 
 
 cannot be made after general issue pleaded, 87. 
 
 error in name, 49. 
 
 where juror disqualified, 62, 63. 
 
 for exclusion of negroes, 67. 
 
 when leave of court not obtained, 114. 
 
 for improperly swearing witnesses, 138. 
 
 where defendant compelled to testify against himself, 145. 
 
 where indictment found on testimony of incompetent witnesses, 144. 
 
 when improper report made, 159. 
 
 not sustained for admission of irrelevant evidence, 143. 
 QUASHED 
 
 tales not to issue when array, 52. 
 
 if exempt person serves, indictment will not be, 72. 
 READING 
 
 of sheriff's roll, 13. 
 
 indictment to grand jury, 155. 
 REAL ACTIONS 
 
 award of writ of inquest in, 17. 
 
 RE-ASSEMBLING grand jury after discharge, 160. 
 REBELLION 
 
 against United States as disqualification, 63, 73. 
 RECOGNIZANCE 
 
 witnesses bound by, to appear, 132. 
 
 defendant held in, after bill ignored, 153. 
 RECOMMITTING 
 
 improper finding to grand jury, 165. 
 RECONSIDERATION 
 
 of finding, 150. 
 RECONVENE 
 
 when grand jury may, 160. 
 RECORD 
 
 to disclose necessity for talesmen, 51. 
 
 need not show oath taken by sheriff, 68. 
 
 must show empaneling of grand jury, 89. 
 
 appointment of foreman noted on, 90, 
 
 to show that foreman was sworn, 93. 
 
 to show that grand jurors were sworn, 92. 
 
 offered in evidence, 119. 
 
 finding to be entered, 156. 
 
 striking improper report from, 159. 
 
 may be amended nunc pro tune, 93. 
 
 RECTOR vs. SMITH, libellous report by grand jury, 158. 
 REDRESS 
 
 of defendant from malicious acts of grand juror, 166.
 
 INDEX. 2O9 
 
 The references are to pages. 
 
 REEVES, MR. 
 
 as to participation of grand jury in trial of offenders, 22. 
 REGULARITY OF OFFICIAL ACTS 
 
 presumption of, 59. 
 REIGNERUS LAW OF, 3. 
 RELATIONSHIP 
 
 when grand juror disqualified by, 80. 
 RELIGIOUS BELIEF 
 
 of grand juror, 81. 
 RELEVANT 
 
 whether books and papers produced are, 133. 
 REPORT 
 
 of grand jurors upon completion of work, 157. 
 
 containing libellous statements, 158. 
 
 whether improper, will be allowed to stand, 159. 
 RESUBMISSION 
 
 of bill to grand jury, 154. 
 RETURN 
 
 to writ of venire, 49. 
 
 may be signed after verdict, 50. 
 
 may be amended, 50. 
 
 necessity of affidavit to, 54. 
 
 challenge to array for irregularity in, 66. 
 
 of grand jury, signature of foreman, 148, 150. 
 REX vs. DICKINSON, witnesses not sworn, 139. 
 RHODE ISLAND, oath of grand juror, 9411. 
 RICE, JUDGE, Com. v. Sheppard, 114. 
 ROLLO carries jury system into Normandy, 3. 
 ROLLS OF ITINERANT COURTS, n, 24. 
 ROWAND vs. COM. Second bill sent to grand jury, 112. 
 RULES OF EVIDENCE 
 
 grand jury governed by, 142. 
 SAWYER, SIR ROBERT, Attorney General, 30. 
 SCANDINAVIANS 
 
 trial by jury among, 3. 
 
 nambda used by, 3. 
 
 SCARLETT'S CASE, unlawfully procuring indictments, 42, 117. 
 SEAL 
 
 venire should be under seal of court, 48. 
 SECRECY 
 
 in conveying names of evil doers to sheriff, 20. 
 
 observed by amercers, 20. 
 
 purpose of observing, 21, 116. 
 
 did not apply to inquiries made by justices, 21, 27. 
 
 condemned as an evil, 42. 
 
 a bar to inquiry into grand jury's action, 46, 118. 
 
 14
 
 2IO INDEX. 
 
 The references are to pages. 
 SECRECY Continued. 
 
 pledge of, in ancient oath, 99. 
 
 provision for, in modern oath, 116, 162. 
 ancient views regarding provision for, 118. 
 
 when oath as to, not violated, 120. 
 
 clerk of grand jury to testify when, 120. 
 
 district attorney bound by requirement of, 120. 
 
 in hearing witnesses, 127. 
 SELECTION 
 
 of grand jurors now regulated by statute, 47. 
 
 from improper class of persons, 52. 
 in Pennsylvania, 52. 
 in Federal Courts, 55. 
 in England, 57. 
 
 effect of absence of officer from, 58, 67. 
 
 irregularity in making, 66, 67, 68. 
 
 by de facto officers, 58. 
 
 from registries of voters, 68. 
 
 of foreman, 90. 
 
 of clerk, 91. 
 SECTATORES 
 
 of the Anglo-Saxons, '3. 
 
 their number, 3, 6. 
 
 unanimity not required, 3. 
 
 civil causes only considered by, 3. 
 
 similarity to nambda, 4. 
 
 SERGEANT, KING'S. See KING'S SERGEANT. 
 SERGEANT 
 
 inhabitants of hundred enrolled by, 20. 
 
 to choose four knights, 20. 
 SHAFTESBURY'S CASE, 29, 117, 129. 
 SHAW, CHIEF JUSTICE, charge of, 43. 
 SHERIDAN'S TRIAL, 75. 
 SHERIFF 
 
 the king's officer, 8. 
 
 authority of, in the county, 8. 
 
 selected from justices of curia regis, 8. 
 
 to seize persons of evil repute, 20. 
 
 arbitrarily increases number of grand jurors to twenty- four, 26. 
 
 compelled to return panel as reformed by justices, 30, 41. 
 
 when order or precept not served upon, 48n. 
 
 to draw and summon jurors, 48, 49, 54, 57, 59. 
 
 to make return to writ, 49. 
 
 need not swear jurors returned according to law, 54. 
 
 to summon talesmen, 50. 
 
 incompetent persons summoned by, 52.
 
 INDEX. 211 
 
 The references are to paces. 
 SHERIFF Continued. 
 
 cannot delegate authority to another, 58. 
 absence of, when selection made, 67. 
 SHERIFFS ROLL, reading of, 13. 
 SHERIFFS TOURN held semi-annually, 4, 5. 
 SHIPPEN, MR. JUSTICE, 34. 
 SIGNATURE 
 
 of foreman as evidence of empaneling, 89, 
 
 when to be affixed to endorsement, 148. 
 vouches for regularity of proceedings, 151. 
 of district attorney when necessary, 134. 
 SOLICITOR GENERAL 
 
 no such officer in Tennessee, 134. 
 SOUTH CAROLINA 
 
 qualifications of grand jurors, 62. 
 SOUTH DAKOTA, oath of grand juror, p8n. 
 SPELLING 
 
 error in, name of grand juror, 49. 
 STANDING ASIDE 
 
 of grand jurors, 83. 
 
 STATE vs. COWAN, control of court over grand jurors, 165. 
 STATES 
 
 may prosecute by information, 33. 
 
 prosecution of offences by information in, 115. 
 
 Western, abolition of grand jury in, 44. 
 
 Eastern, conservatism of, on grand jury, 44. 
 
 qualifications of Federal grand jurors determined by laws of, 63. 
 STATE'S ATTORNEY 
 
 cannot challenge panel, 70. 
 STATUTE 
 
 of Ethelred II, 2, 3, 5. 
 
 3 Henry VIII, c. 12, 30, 41. 
 
 n Henry IV, c. 9, 61. 
 
 6 George IV, c. 50, 57, 61. 
 
 when held to be director", 49, 81, 136. 
 
 selection of grand jurors under unconstitutional, 58. 
 
 grand jurors irregu'^rly drawn under directory, 57, 81. 
 
 disqualification imposed by, 73. 
 
 exempting persons from grand jury service, 72. 
 
 changing method of drawing and summoning, 89. 
 
 of limitations, 103. 
 
 as to disclosure of evidence, 120. 
 
 imposing additional duties on grand jurors, 121. 
 
 allowing eight grand jurors to concur on indictment unconstitu- 
 tional, 14711.
 
 212 INDEX. 
 
 The references are to pages. 
 ST'ENOGRAPHER 
 
 presence of in grand jury room, 139. 
 STEPHEN COLLEGE, case of, 28. 
 STIPENDIARY MAGISTRATES. See MAGISTRATES. 
 STRANGER 
 
 presence of, in grand jury room, 139. 
 SUBPOENA 
 
 attendance of witnesses procured by, 104, 132. 
 
 duces tecum to compel production of books and papers, 133. 
 SUBSTANCE 
 
 matter of, statutory disqualification is a, 74. 
 
 amendment of matter of, not permitted, 154, 155. 
 SUBSTITUTES 
 
 not to be received for grand jurors, 51. 
 SUMMERHAYES CASE, contempt of court, 165. 
 SUMMONED 
 
 number of grand jurors, 45. 
 
 at fixed time, 49, 68. 
 
 when improper persons,49. 
 
 when talesmen should be, 50. 
 
 improper persons, as talesmen, 52. 
 
 number of talesmen to be, 54. 
 
 implied power of court to order grand jurors, 52. 
 
 immaterial how grand juror, 54. 
 
 grand juror becoming competent after being, 76. 
 
 by whom grand jurors, 59. 
 
 how Federal grand jurors are, 55. 
 
 from part of the district, 56, 57. 
 
 under English statutes, 57. 
 
 removal from domicile after being, 81. 
 
 foreman selected from persons, 90. 
 
 witnesses before grand jury, how, 101. 
 SUPPLEMENTAL CHARGE 
 
 when delivered, 125. 
 
 at whose request made, 125. 
 
 in Aaron Burr's Case, 125. 
 
 Judge Cranch's view, 126. 
 SUSPICION 
 
 presentment on, 15, 19. 
 
 Glanville comments on presentment on, 15.' 
 
 of petit juror by defendant and townspeople, 22. 
 SWORN 
 
 how grand jurors are, 91. 
 
 grand jurors not, in any particular cause, 122. . 
 
 objections before grand jurors, 64, 74n. 
 after grand jurors, 64. 73, 85.
 
 INDEX. 213 
 
 The references are to pages. 
 SWORN Continued. 
 
 grand jurors, as witnesses, 1320. 
 
 witnesses to be, 137. 
 
 when witness not, 138, 146. 
 
 indictment need not show that witnesses, 138. 
 
 TALES 
 
 not to issue when array quashed, 52. 
 
 TALES DE CIRCUMSTANTIBUS. See TALESMEN. 
 TALESMEN 
 
 when summoned, 50. 
 
 venire not to issue, 51. 
 
 number to be summoned, 54, 56. 
 
 necessity for, to be shown by record, 51. 
 
 may be summoned when all jurors disqualified, 52. 
 
 selected from improper persons, 52. 
 
 names not to be furnished by judge, 51. 
 
 designated by court to fill vacancy, 84, 
 
 may be appointed foreman, gon. 
 
 in Federal Courts, 55. 
 
 TAMPERING WITH WITNESSES,i43. 
 
 TANEY, CHIEF JUSTICE, evidence necessary to convict, 102. 
 
 TAXES 
 
 payment of, as grand juror's qualification, 63, 81. 
 
 grand jurors to fix rate of, 121. 
 
 as board of revision of, 122. 
 TECHNICAL FORM 
 
 in presentment, 131. 
 TENNESSEE 
 
 qualifications of grand jurors, 62. 
 
 grand juror related to accused, 81. 
 
 oath of grand juror, Qsn. 
 
 inquisitorial powers of grand jurors, 104. 
 
 investigation of sufficiency of bonds in, 122. 
 
 endorsement of prosecutor's name, 135. 
 TERM 
 
 two grand juries at same term, 89. 
 
 TERRITORIAL JURISDICTION 
 
 inquiry within, 103. 
 TERRITORY 
 
 admitted as state, how grand jurors empaneled, 89. 
 TESTE 
 
 venire to bear, 48. 
 
 may be amended, 48.
 
 214 INDEX. 
 
 The references are to pages. 
 TESTIMONY 
 
 witnesses in contempt for refusing to give, 88, 133. 
 
 additional, may be given when required, 104. 
 
 presentment made without hearing, 132. 
 
 indictment found upon unsworn, 138, 146. 
 
 voluntary, of defendent, 144. 
 
 of defendant involuntarily given against himself, 145. 
 
 when to be kept secret, 118. 
 
 of grand jurors, when received, 118. 
 
 of clerk of grand jury, 120. 
 
 of district attorney, 120. 
 
 district attorney not to comment on, 128. 
 TEXAS, oath of grand juror, gsn. 
 THANES 
 
 presentment by, 3, 8. 
 
 duty of, to accuse, 3. 
 
 oath of twelve, 98. 
 
 THAYER, PROF. 
 
 on effect of Assize of Qarendon, 18. 
 
 order of Lateran Council, 18. 
 TOURN. See SHERIFF'S TOURN. 
 TOWN MEETING in Connecticut, 122. 
 TOWNSHIPS 
 
 their part in presentments, 14, 16. 
 
 did not act in all cases, 14, 16. 
 
 until inquest had presented, 15, 16. 
 
 not mentioned by Glanville, 14. 
 
 identity with four freemen of every vill, 15. 
 
 no part of the inquest, 15. 
 
 power of, 16. 
 
 use of, not obligatory, 16. 
 
 limited to concurrence in finding of inquest, 16. 
 
 Mr. Forsyth's reference to, 16. 
 
 part of trial jury, 23. 
 TOWNSPEOPLE. And see TOWNSHIPS. 
 
 challenge of juror by, 22. 
 
 oath taken by, 22. 
 
 form part of trial jury, 23. 
 TREASON 
 
 indictment for when quashed, 144. 
 TRESPASS 
 
 when prosecutor's name must be endorsed, 136. 
 TRIERS 
 
 on challenge for favor, 82. 
 TRIAL JURY. See PETIT JURY.
 
 INDEX. 215 
 
 Tbe references are to pages. 
 TRIAL 
 
 by battle, 3, 6, 7, 10, 21. 
 rise of, 9. 
 
 when awarded or refused, 10. 
 exceptions to, 17. 
 right of appellee to decline, 17. 
 in real actions, 17. 
 
 and country, appellees election between, 21. 
 and ordeal, appellees election between, 10, 12. 
 last instance of in England, 13. 
 abolished by 59 Geo. Ill, c. 46, 13. 
 by ordeal, when awarded or refused, 10. 
 abolished, 18. 
 of fire or water, 4. 
 
 prescribed by Assize of Qarendon, 7, 8. 
 
 Assize of Northampton, 9. 
 by corsned or morsel of execration, 4. 
 by compurgation, 4. 
 
 disappearance of in criminal cases, 8. 
 
 TRIAL BY JURY 
 
 among Scandinavians, 3. 
 
 introduced into England, 6. 
 
 first use of in criminal cases, 17. 
 
 provisions of Magna Charta as to, 17. 
 
 takes place of ordeal upon presentments, 18. 
 
 mentioned by Bracton, 21. 
 
 described by Bracton, 22. 
 
 choosing of, by appellee, 21. 
 
 upon appeal made by woman, 21. 
 
 not awarded upon appeal of felony, 21. 
 
 removal of jurors on suspicion, 22. 
 
 challenge of juror for cause, 23. 
 
 afforciament in, 24. 
 
 dispensed with in New Haven Colony, 3in. 
 
 TRUE BILL 
 
 found upon concurrence of twelve jurors, 56. 
 endorsement of, as evidence of empaneling, 89. 
 evidence to justify finding, 102, 105, 141. 
 when grand jury may find, 146. 
 
 number to concur in finding, 147. 
 as to one or more counts, 147. 
 cannot be found for part of a count, 147. 
 as to some of the defendants, 148. 
 omission of words, 149. 
 when printed as endorsement on bill, 151.
 
 2l6 INDEX. 
 
 The references are to pages. 
 
 UNANIMITY 
 
 of grand jurors when requisite, 26, 27. 
 
 of petit jurors, 26. 
 
 UNCONSTITUTIONAL STATUTE. See STATUTE. 
 UNITED STATES 
 
 Constitution omits indictment by grand jury, 32. 
 remedied by Amendment V, 32. 
 
 Fifth Amendment applies only to offences against, 
 
 Sixth Amendment to Constitution, 57. 
 
 courts, grand jury in, 55. 
 
 challenge to array in, when made, 69. 
 
 workmen in arsenals and armories exempt, 73. 
 
 rebellion against, will disqualify, 63, 73. 
 
 knowledge of grand jurors of offence against, 109. 
 UTAH 
 
 unlawful cohabitation in, 82n. 
 
 oath of grand juror, Q7n. 
 VACANCY 
 
 in grand jury, how filled, 84. 
 VARIANCE 
 
 in name of foreman, 149. 
 
 between indictment and evidence, 152. 
 VENIRE 
 
 issues upon precept, 48, 55. 
 
 command of, 48. 
 
 should be under seal of court, 48. 
 
 may be amended, 48. 
 
 requisites of, 49. 
 
 return of sheriff to, 49. 
 
 not to issue to summon talesmen, 51. 
 
 to issue when array quashed, 52. 
 
 array challenged for irregularity in, 66. 
 
 selection of foreman from whole, 9on. 
 
 shown by records of court, 151. 
 VERDICT 
 
 sheriff's return signed after, 50. 
 
 influenced by incompetent evidence, 145. 
 
 objection made before, 149. 
 VERMONT 
 
 oath of grand juror, 94n. 
 
 act as excise officers in, 122. 
 VILL 
 
 four freemen of, 14, 15. 
 VIRGINIA 
 
 oath of grand juror, 95n. 
 
 endorsement of prosecutor's name, 135.
 
 INDEX. 217 
 
 The references are to pages. 
 
 VITIATE 
 
 presence of disqualified person will, 87, 139. 
 VOID 
 
 disregard of statute will make indictments, 88. 
 
 unlawfully empaneling grand jury will make indictments, 8g. 
 VOIR DIRE 
 
 grand jurors cannot be examined on, 81. 
 VOTE 
 
 Negroes denied right to, 67. 
 
 grand jurors not to testify as to, 118, 119. 
 
 presence of district attorney during taking of, 128. 
 VOTER 
 
 grand juror must be qualified, 63, 77. 
 VOTERS 
 
 selection of grand jurors from registries of, 68. 
 VOTING 
 
 unauthorized person participating in, 139. 
 WAGER OF BATTLE. See TRIAL BY BATTLE. 
 WAIVER 
 
 of right of challenge by silence, 71, 72, 87. 
 to exemption from service, 72. 
 by not objecting before plea, 87. 
 WAPENTAKE. See HUNDRED. 
 WASHINGTON 
 
 qualifications of grand jurors, 63. 
 
 women not qualified as grand jurors, 63. 
 
 oath of grand juror, 97n. 
 WEEKLY JOURNAL, in Zenger's Case, 32. 
 WEREGILD 
 
 custom of, 4. 
 
 disuse of, 9. 
 
 WESTERN STATES, abolition of grand jury in, 44. 
 WEST VIRGINIA 
 
 qualifications of grand jurors in, 62. 
 
 oath of grand jurors, 9611. 
 
 WHARTON, DR., control of court over grand jury, 164. 
 WHEEL 
 
 irregularity in keeping jury, 66, 67. 
 WHITE, JUDGE, Rowand v. Com., 112. 
 WILDE, JUDGE, Com. v. Knapp, 136. 
 WILLIAM OF ORANGE, 31. 
 WILMORE, MR., forced to flee beyond seas, 29. 
 WILSON, IN RE, 140 U. S. 575, 47, 56.
 
 2l8 INDEX. 
 
 The references are to pages. 
 WILSON, JUDGE 
 
 oath of grand juror, 94. 
 
 power of grand jury, 100. 
 
 charge to grand jury, 124. 
 
 WINDHAM, SIR HUGH, fining grand jurors, 164. 
 WISCONSIN, oath of grand juror, o6n. 
 WITNESSES 
 
 four townships acted as, 16. 
 
 trial jurors as, 23, 24. 
 
 summoning of, before grand jury, 101, 104, 132. 
 
 appearing before grand jury, 100. 
 
 for prosecution only heard, 42, 103, 140. 
 
 to be sworn, 137. 
 
 manner of swearing, 137. 
 
 when, not sworn, 138, 146. 
 
 examination of, by district attorney, 139. 
 by private counsel, 129. 
 by grand jurors, 127. 
 in open court, 117, 127. 
 
 only one present at a time, 139. 
 
 grand jurors may require production of additional, 104. 
 
 indictment found upon evidence of interested, 143. 
 
 incompetent, 143, 144. 
 
 two, on indictment for treason, 144. 
 
 must all be examined before bill ignored, 146. 
 
 disclose other offences, no. 
 
 committing perjury before grand jury, 108, 118. 
 
 cannot be compelled to criminate themselves, 133. 
 
 refusing to testify in contempt, 88, 120, 133. 
 
 commitment of, I32n. 
 
 may disclose what transpires in grand jury room, I2O. 
 
 presentment not based upon testimony of, 132. 
 
 failure to hear, in support of indictment, 132. 
 
 list of, furnished to defendant, 136. 
 
 names of, endorsed on bill, 135. 
 
 tampering with, 143. 
 
 testifying under objection, 145. 
 
 convicted of infamous crime, 143. 
 perjury, 144. 
 
 punishment of, 104, 165. 
 WOMAN, appeal made by, 10, n, 21. 
 WOMEN 
 
 not qualified as grand jurors, 63. 
 
 unlawful cohabitation with, in Utah, 82. 
 
 married, when incompetent as prosecutrix, I35n. 
 WOODWARD, MR. JUSTICE, Rowand v. Com., 112.
 
 INDEX. 219 
 
 The references are to pages. 
 WYOMING, oath of grand juror, 9711. 
 WRITS 
 
 awarding inquest, 17. 
 
 not to be bought or sold, 17. 
 provisions of Magna Charta as to, 17. 
 awarding assize, 17. 
 of venire facias, 48. 
 
 return of sheriff to, 49. 
 of tales de circumstantibus, 54. 
 ZENGER, case of John Peter, 32.


 
 UNIVERSITY OF CALIFORNIA LIBRARY 
 
 Los Angeles 
 
 This book is DUE on the last date stamped below. 
 
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 30 1973 
 
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 19 1974 
 
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 HAR22 1976 
 
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