UNITED STATES V. KILPATRIOK.
765
inexpeditious way of suppressing this crying evil that could possibly be adopted. We sustain the objection to the evidence offered upon the ground first named. See Bates v. U.8. 10 FED REP. 92, and note, 97.
UNITED STATES V. KILPATRICK.
(District Oourt, W. D. NO/·tli, Oarolina. May Term, 1883.\
1.
MOTION TO QUASH INDICTMENT.
The courts do not favor motIOns to quash indictments, and will not, as a rule, allow them, where they are made upon some matter which might have been presented by demurrer, or by motion in arrest of judgment, or which might be made available by way of defense in trial before a jury. 2. SAME-ARREST OF JUDGMENT-WHEN ALLOWED.
Judgments can only be arrested for matter appearing in the record, or for Bome matter which ought to appear and does not appear therein. S. SAME-DEMURRER, WHEN AJ.LOWED.
A demurrer can only be used to object to an indictment as insufficient in law because defective in substance or form. 4. SAME-GROUNDS FOR QUASffiNG.
If a bill of indictment be found without eVidence, or upon mega! eVlGence, or for any improper conduct of ihe jury, or for any improper influence brought to bear upon the jury, such matters may be pleaded in abatement, or may be grounds for quashing an indictment, but cannot be availed of by motion in arrest of judgment. Ii. GRAND JURIEs-THEIR POWERS, ETQ. A grand jury is a component part of the court, and is under its general super. vision and control. Grand jurors may be punished for contempt, for any Willful misconduct or neglect of duty, but they are independent in their actions in determining questions of fact, and no investigation can ever be made as to how a grand juror voted, or what opinions he expressed on matters before him. 6. SAME-EvIDENCE. Investigations before grand juries must be made in accordance with the wellestablished rules of eviden.ce, and they mnst hear the best legal proofs of which the ease admits. No evidence should be received by a grand jury which would not be admissible in a court upon the trial of a cause. Hearsay evidence upon questions before a grand jury is no more admissible than before the court. 7. SAME-ExpERT TESTIMONY. Whether a witness is or is not an expert as to any particular science or art Is to be determined by the court before he can be admitted to testify before a grand jury. 8. SAllE-EVIDENCE OF CONFESSIONS. Evidence of confessions should never be admitted bet'ore a grand jury, except under the direction of the court, or unless the prosecuting officer of the state
766
FEDERAL REPOJlTER.
is present and can make the full preliminary inquiries necessary to render the evidence admissible. 9. SAME-GENERAL RuLE AS TO EVIDENCE.
As a general rule, a grand jury should hear no other evidence thau that adduced by the prosecution, but they are sworn" to inquire and ttue presentment make," and if, in course of their inquiries, they have reason to believe that there is other evidence not presented, and with'in reach, which would qualify or explain away the charge under investigation, it would be their duty to order such evidence to be produced. 10. SAME-WITNESSES BEFORE GRAND JURIES.
A witness before a grand jury has no privilege to have his testimony treated as a confidential communication, but he ought to be considered as deposing under all the obligations of an oath in a judicial proceeding.
11.
SAME-VOLUN1.'EER WI'rNEssES.
It has been held a misdemeanor and high contempt of court in any individual acting as a volunteer to approach or communicate with a grand jury in rcference to any matter which either is or may come before them. No person has a right to communicate private information to a grand jury for the purpose of obtaining a presentment.
12.
SAME-Two ME'rHODs BY WHICH AN OFFENDER
BE PnOSECU1.'ED.
There are two methods allowed by which a person may prosecute an offender; he may give information to the solicitor of the state and have a bill of indictment prepared and sent to the grand jury, or he may make a written complaint on oath before an examining and committing magistrate, and obtain a warrant of arrest, and have a preliminary investigation of the accusations made. 13. SAME-WITH WHOM GnAND JURIES MAY ADVISE.
The court is the only proper source from which a grand jury may obtain ad. vice as to questions of law. No other pel'l:lon has a right to give a grand jury an opinion on questions of law which affect the rights of individuals or society. 14. SAME-THE DISTRICT ATTORNEY.
Courts sometimes give permission to the district attorney, or his regular assistant, to go before the grand jury requested by the foreman, or when it seems necessary he should attend for a speedy and proper administration, of justice. These officers, when before a grand jury, may properly assist in examining witnesses; may advise in matters of procedure, according to the wellsettled course and practice of the courts; may read statutes upon which bills of indictment are founded; but they cannot give opinions on questions of law in the case, or as to the weight and sufficieney of evidence. 15. SAME.
A district'attorney may, under certain circumstances, send in a bill to a grand jury without a prior arrest and binding over. 16. SAME-JUIUSDICTION OF FEDERAL COURTS.
In matters which relate to the qualifications and exemptions of jurors, the federal courts must be governed by the laws of the states in which such courts are held; but in designating, summoning, forming, and impaneling juries they have a large discretion. There is no statute expressly requiring federal courts to conform their practice, pleadings, and modcs of procedure in criminal trials to the laws of the state in which they are held. Federal courts derive their criminal jurisdiction from congressional statutes, but in exercising their functions they are guided by the rules of the common law when there is no statute regulating their action.
UNITED STATES
v. -KILPATRICK.
767
Motion: to QU!lsh Bill of Indictment. J. E. Boyd and W. S. Ball, U. S. Attys., for the United States. C. M ..McLoud and J. W. Bowman, for defendant.
DICK, J. This case having been called for trial, the defendant filed an affidavit, upon which amotion was made to quash the indictment. After hearing evidence and full arguments I decided that the bill should be quashed, and the defendant be held to await the action of the grand jury, then' in session, upon a new bill. As I was desirous of speeding an investigation and trial of the cause, I announced myct>nclusions of law orally, and stated that I would prepa:re a written 6pinion upon the important questions involved, so as to settle such matters of law, practice, and procedure in this district. The gronndsfor the motion to quash relate to the conduct of Mr. Bowtnan, an examiner of the department of justice, before the grand jury 'Which found the bill of indictment. They will be stated .and considered in a subsequent part of this opinion, after T have decided ')sorne important questions of law presented and discussed in the arguments of counsel. In my judicial experience I have never had occa.sion to consider fully and decide some of the matters of law, practice, and procedure now before me. Upon questions pertaining ·to the powers, duties, and responsibilities of grand juries, and to the practice and modes of procedure before such bodies, there have been some contrariety and conflict of opinions in the courts of the several states. This diversity in the decisions of the courts has arisen, in a great degree, from the fa.ct that the common law is not the same in all the states. Each state has its .peculiar social conditions and modes of thought, its local usages, customs, and statutes, which have changed .aildmodified ·the principles and rules of the English common law, and influenced state judicial decisions. I have carefully considered the decisions and opinions of the supreme court of this state,-cited in the arguments,-and have adopted their views as to the common law of this state, as I think such views are not in conflict with any decision of the supreme court of the United States, or with any positi"te congressional legislation. In matters which relate to the qualifications and exemptions of jurors the federal court must be governed by the laws of the states in which such courts are held. In designating, summoning, formjng, and impaneling juries, the federal courts have a large discretion, . and may by rules Or order adopt the state methods and usages, so
768
FEDERAL REPORTER.
far as practicable, as a strict conformity with state laws· is not required. There is no statute expressly requiring federal courts to conform their practice, pleadings, and modes of procedure in criminal trials, to the laws of the state in which they are held. There is no common law of the United States, and federal courts derive their criminal jurisdiction entirely from congressional statutes; but, in exercising their functions, they are guided by the rules of the common law, where there is no national statute regulating their action, and I am of the opinion that, in determining what these rules are, they should be greatly influenced by the decisions of the highest courts of the state in which they administer criminal justice. This course of practice and procedure would be in accordance with the liberal spirit of national legislation in regard to the common-law civil cases in the federal courts. The best interests of the whole country require that there should be as. little conflict of opinion and diversity of legal procedure as possible, between the state and na· tional courts that administer justice in the same communities. The grand jury is an institution that had its origin in the early periods of the common law. It has always been highly estimated and venerated in England and in this country, as it has been consid. ered as a safeguard of the liberties of the people against the encroachments and oppressions of political power, and against un. founded accusations prompted by private malice, personal animosity, or other improper motives. In contemplation of law grand juries are composed of the best and most intelligent citizens of the community,-men strictly impartial and free from all objections, and haYing permanent interests in the property of the country, and thus interested in securing justice and preserving the peace, good order, and well-being of society. 1 Ohit. Orim. Law, 307. As the grand jury is an informing and accusing body, which makes its investigations and holds its deliberations in secret, and is irresponsible for its official action upon matters of fact, except before the tribunal of public opinion, it is very important that its powers, duties, and methods of procedure should be well understood, and be .strictly confined within the conservative and salutary limits imposed by law, which experience has shown to be necessary to subserve the public good, and to accomplish a just and impartial administration of the criminal law. In state courts, where common-law jurisdiction over offenses is ex. ercised, the powers and duties of grand juries are more extensive and responsible than in federal courts, which have cognizance only
0'
USITED STATES V. KILPATBIOK.
769
offenses defined and declared by acts of congress; and there are special officers and agents appointed to make preliminary investigations of offenses against national laws. State grand juries have a general supervision over the peace, good order, and well-being of society, and may make presentments of offenses which are within their own personal knowledge and observation, or such as are of public notoriety and injurious to the entire community; but they cannot make inquisitions into the general conduct and private business of their fellow-citizens, and hunt up offenses by sending for witnesses to investigate vague accusations founded upon suspicions and indefinite rumors. The repose of society, as well as the nature of our free institutions, forbid such a dangerous mode of inquisition. A prosecuting offcer has no right to send witnesses to the grand jury room merely to be interrogated whether there has been any violations of law within their knowledge. Lewis v. Com'rs, 74 N. C. 194. An individual has no right to communicate private information to a grand jury for the purpose of obtaining a presentment. If he desires to prosecute an offender there are two modes by which he may accomplish his purpose. He can give information to the solicitor of the state, and have a bill of indictment and sent to the grand jury, and have his name marked as prosecutor, and thus become responsible for the costs and other liabilities which he may incur for the prosecution of a criminal action which he has instituted. He may also make a written complaint on oath before an examining and committing magistrate, and obtain a warrant of arrest and have a preliminary investigation of the accusations made, when and where the defendant can confront his accuser and witnesses with other testimony and have counsel for his defense. This mode is in conformity with our state and national constitutions, and consonant with the principles of natura.l justice and personal liberty founded in· the common law. It has been held a misdemeanor and a high contempt of court in any individual, acting as a volunteer, to approach or communi<late with the grand jury in reference to any matter which either is or may come before them. 1 Whart. Crim. Law, § 507. A grand jury is a component part of the court, and is under its general supervision and control, and grand jurors may be .indicted, or punished for contempt, for any willful misconduct or neglect of .duty i but they are independent in their action in determining quesv.16,no.7-49
'17D
tions of tact, and no ever be made as to how a grand juror voted, or what opinions he expressed upon such questions. They should be governed, as to questions of law, by instructions from the judge, and such instructions should generally be given in open court. "No other person' has' a right to give a grand jUfY an opinion on questions of law which affect the rights of individuals or society. In the cllose of Lewis v.,CorJ)'rs, supra, Mr. Justice BYNUM, with the approv\11 of the court, express,ed the opinion, in strong terms, that a solicitorC!ljnnot instruct the grand jury in the law, and he has no the grand jury room. He then said: ''' "None but'witnesseshave any business before them. No one can· counsel them but the court. They do not comxnunicatewith the solicitor, but with the court, either directly or throu;:w an officer sworn for that purpose. They act, upo,n. thel,r own 1,{j1o,wledge observation in making presentments. They act upon bills sent from the court with tile witnesses. The examination 'of witneases is conducted by them withont the advice or interference of others. be their own, unInflnenced by the promptings or suggesTheir findings 'tions of 'others, or the opportunity thereof."
I concur in the views thllS tersely and forcibly expressed, and, with slight modifications, have announced some of them in my oral charges to grand jurics. In deference' to the opinions of some eminent federal judges, and in part conformity to the usual practice of federal courts, I have given permission to the district attorney and his regular assistant to go before the grand jury when requested by the foreman, or when they regard their presence necessary for a speedy and proper administration of justice. I think that I may presume that lawyers of high standing, and officers of the government intrusted with the performance of important public duties, will not use their official position and the privilege granted by the court to oppress or in any way impair the legal rights of the citizen. When before the grand jury these officers may properly assist this body in the examination of witnesses; may direct them in matters of procedure according to the well-settled courS6 and practice of the courts; may read statutes upon which bills of indictment are founded; but they cannot give opinions upon questions of law which affect the rights and lib· erties of the citizen charged with crime, or give any advice as to the weight ap.d sufficiency of evidence. The district attorney, according to the usual practice, may, on hiB official responsibility, send a bill to a grand jury without a prior arrest and binding over, but he should exercise this power cautiously,
UNITED 'STATES V.' RILPATRIOK.
771
and never so act unless convinced that the exigencies of the occasion or the general public good demand it. If he has any doubts as to the propriety of such action he should oonsult the court. 1 Whart. Crim. Law, § 458, and notes. . Mr. Justice FIELD, in an able and well-coDsideredoharge to a grand jury in California, (5 Amer. Law J. 259,) very clearly defined his views as to the powers and duties of grand juries ,in the federal courts. He said, in substanoe, that their investigations are limited to such offenses as are called t(} their attention by the court, or submitted to their consideration by the district attorney; or such as may come to their knowledge in the course of their investigations of matter brought before them, or from their own observations; or such as may be disclosed by members of the body. With the above exceptions, he was of opinion that all criminal prosecutions should be commenced by preliminary examinations before a magistrate, where a person accused of crime may meet his accuser face to face, and have an opportunity for defense; as this method of procedure af. fords the citizen the greatest security against false accusations from any quarter. He also, in strong terms, directed the grand jurors not to allow private prosecutors to intrude themselves into the grand jury room and present accusations. On this subject he dwelt at some length and referred to high authority, urging the importance of securing grand juries against outside influenoes and improper interferences, which, if allowed, "would introduce a flood of evils, disastrous to the purity of the administration of criminal justice, and subversive of all public confidence in the action of these bodies.'1 In this connection he quoted the act of congress entitled "An act to prevent and punish the obstruction. of the administration of justice in the courts of the United States." Rev. St. §§ 5404-5. Investigations before grand juries must be made in accordance with the well-established rules of evidenoe, and they must have the best legal proof of which the case Itdmits. In this respect they are judicial tribunals. The prosecuting officer is presumed to be familiar with the rules of evidence, and it is his duty to take care. that no evidence is received by the grand jury which would not be admissible in a court upon the trial of a cause. 1 Whart. Crim. Law, § 493. If there should be any doubts as to the admissibility of evidence, the grand jury should submit the question to the coud for its instructions and, directions. Such inquiries should be made in writing, and the judge must determine whether the instructions should be by written tJommunication or from the benoh.
772
I will illustrate these legal propositions by reference to some questions which were suggested by the evidence in this case. The offense charged in the bill of indictment with technical precision is, in substance, that the defendant made and caused certain accounts to be presented to the treasury department for payment, well knowing them to be false and fraudulent. The fact of presentation is an essential ingredient of the crime alleged, and could only be proved by witnesses who could speak from their own knowledge of such facts, and not from information derived from others. The officers who received and filed such accounts were the best witnesses upon this subject. Hearsay evidence upon the question would not be admissible before the court or the grand jury. A witness is sometimes allowed to testify as an expert on questions of science and art upon which he has superior knowledge, but such testimony is not admissible as to matters of common knowledge in business transactions. 94 U. S. 469. Whether a witness is or is not an expert as to any particular science or art is to be determined by the c09-rt before he can be admitted to testify before the grand jury, or in the trial of a cause. A voluntary confession of guilt, made by a defendant, is admissible in evidence; but in any case, before it is admitted, it ought to appear that it was made voluntarily, and that no motives of hope or fear were employed to induce the accused to make it. All authorities agree that such evidence ought to be taken with great caution, and courts regard with suspicion confessions made to "a person in authority." The preliminary evidence on this question ought to be clear and satisfactory, showing that there were no inducements by promises of temporal advantage, or threats of the exercise of power. Cobley, Crim. Law, 314; State v. Matthews, 66 N. C. 106. Evidence of confessions ought never to be admitted before a grand jury, except under the direction of the court, or unless the prosecuting officer of the government is present and carefully makes the preliminary inquiries necessary to render the evidence admissible. As a general rule grand juries should hear no other evidence than that adduced by the prosecution, but they are sworn "to inquire and true presentment make," and if, in the course of their inquiries, they have reason to believe that there is other evidence, not presented and within reach, which would qualify or explain away the charge under investigation, it would be their duty to order such evidence to be produced. A grand jury ought not to find a bill upon evidence merely sufficient to render the truth of the charge probable; their
773
jUdgments flJlOnld be convinced that the evidence before them, unexplained ana uncontradicted, would warrant a conviction by a petit jury. Mr. Justice JhELD, charge supra. As to how far grand jurors may be allowed or compelled to testify as to proceedings before. their body, is a question upon which there is some diversity of decisions in the courts. By the policy of the law grand juries act in secret, and, with the view of sustaining that policy, it is prescribed that a grand juror shall, among other things, swear that "the state's counsel, your fellows', and your own, you shall keep secret." The principal grollnd of that policy is to inspire the jurors with a confidence of security in the discharge of their responsible duties; and secrecy as to the actions and the opinions of jurors upon matters before them must ever remain inviolable. A witness has no privilege to have testimony treated as a confidential communication, but he ought to be considered as deposing under all the obligations of an oath in a judicia.l proceeding; and the oath of a grand juror is no legal or moral impediment to his solemn examination, under the direction of the court, as to the evidence before him, whenever it becomes material to the administration of justice. State v. Broughton, 7 Ired. 96. I think the grand juror in this case was a competent witness, and his written examination and testimony were confined within legal limits. It is the duty of a court to look into what is brought to its attention outside the indictment, and even outside the record, in a cause, to see that a prosecution is properly instituted. State v. Horton, 63 N. C. 595. It was insisted by the counsel for the pros(;lcution that motions to quash indictments are not favored by the courts, and are not usually allowed. This position is correct where the motion is founded upon some matter which could be presented by demurrer, motion in arrest of judgment, or which could be made available by way of defense on trial before a jury. In such cases the practice of this court has been to refuse the motion. I have carefully considered the matters alleged in the affidavit and developed in the evidence, and I am of the opinion that they cannot properly be made available by the defendant in any other way than by plea in abatement or by motion to quash. Judgment can only be arrested for matter appearing in the record, or for some matter which ought to appear and does not appear in the record. A demurrer can only be used to object to an indictment as insufficient in law, because defective in substance or form. In ,this country demurrers in criminal proceedings are not
774
usual in practice, as all errors which can be thus presented can be availed of on motion in arrest of judgment. If a bill of indictment be found without evidence, or upon illegal evidence, or for any improper conduct of the jury, or for any improper influence brought to bear uvon th(:l, jury, such matters may be pleaded in abatement or may be ground for quashing an indictment, but cannot be availed of by moti0n in All such objectiolls must be made before a trial. State v. Horton, supra. Having briefly discussed and determined the important questions of law presented in the arguments of counsel, I will now proceed to consider the material questions of fact arising from the evidence, which was taken in writing and is now before me. It was insisted in support of the motion that Mr. Joel W. Bowman, examiner of the department of justice, instructed the grand jury as to questions of law when acting upon the bill. On this point Mr. Israel, who was a grand juror at the time ·the bill was found, testified as to Mr. Bowman's conduct: "He had a paper showing what was law and what was not. He would tell us what was law. He asked some witnesses questions. He said it was against the law to defraud the government, and it waS if you endeavored to do it, even if you did not do it." To this positive statement Mr. Bowman replied in his testimony: "I have no recollection what. ever of ever having advised the body, or any member thereof, as to matters of law, nor do I think I did so." There is some discrepancy lletween the testimony of witnesses of good character, but in this instance I will not apply the usual rules of evidence and decide the question of fact, as there are sufficient undisputed matters of fact upon which I can found my decision. I have, in a former part of this opinion, stated the principles of law relating to this subject. It was further insisted by the counsel of the defendant that Mr. Bowman carried before the grand jury and used in the investigation of this case papers that were not admissible evidence, because not properly authenticated. Upon this point the grand juror testified that Mr. Bowman had accounts with him: "He had a large roll of papers. He said he was sent here by the government. I think he said they were fr:om the treasury department. He explained a good deal about them, and told us how it was on such and such." In reply to this testimony Mr. Bowman said: "I was the custodian of the accounts upon which this indictment is based, which accounts I received from the files of the treasury department. I went before the grand jury as a witness to identify the particular sheets in the accounts, and to
UNITED BTATES V. KILPA.TRICK.
'775
show that they were the identical accounts presented to the department for payment. II On cross-exalllination he was asked; "Did you have ariyletters or affidavits before the grand jury?'; to which he replied, "I might have had both, butam not sure. I don't think I presented any of them.. I don't think I 'untied them, if I had them with me." Upon some of these points the testimony is don" fused, incomplete, ,and unsatisfactory. If Mr. Bowman in person ceived the original accounts from the treasury department, and had personal knowledge that,they had been presented totha:t department for payment, then he was it competent witness to prove such facts; but he ought to have stated how he acq:uiredsUiih' information in regard to papers thttt belonged to a department in which he was not employed. The officers of the treasury who received such best witnesses to such papers and had them in their custody are material facts. If' Mr. Bowman derived his information upon such subjects from the officers of the treasury, then his'information was hearsay evidence, and the accounts presented 'upon such evidence , were inadmissible before the grand jury, and improperly influenced their action.' If Mr. Bowman had letters and affidavits before the jury, and did not use them in any way Whatever, his motive in carrying them there might be a subject of comment on the part· of couDsel, but he committed no offense in law. The evidence as to some of the points is so indefinite that I will not 'express an opinion on the subject. It was further insisted by the counsel of the defendant that Mr· . Bowman was present before the grand jury, d.irected their inquiries, assisted in the examination of· the witnesses, and made statements as to the sufficiency of proof calculated to influei:lCe the deliberations of that body upon this indictment. Upon these points, I find the following facts from the written evidence: That Mr. Bowman was introduced to the grand jury by the district attorney, or his assistant; that he remained in the room during the examiriation of many of the witnesses; that, at the request of some member of that body, he assisted them in their investigations by explaining' accounts white the witnesses were on examination, and he asked some questions; that he directed the inquiries of the grand jury, at the request of some member, by telling them what certain witnesses would testify before they were introduced into the room;,that he did not regard himself as a prosecutor, but simply a witness, at the command of the jury and in dutybound to obe.v them: and that he left the room before any ballot was taken.
776
As to the question of fact, whether he made any statements as to the sufficiency of proof as to any points connected with the charges in the indictment, the evidence is too indefinite for me to express a positive opinion. Mr. Bowman, when on cross-examination, was asked to give a positive answer as to the inquiry. He said: "I don't think I did. I think I am safe in saying I did not. I have no recollection of it." Mr. Davis, the officer of grand jury, testified that Mr. Bowman was in the grand jury room for some time. "I recollect, when Mr. Bowman came out, he spoke to Bome one-1 think a witness-and said, 'I have. got my bill.' " r will pass over other questions of facts developed in the evidence about which there are differences between the recollections of Mr. Bowman and Mr. Davis, the of the grand jury. I will not attempt to weigh or reconcile conflicting testimony, but place my judgment upon the facts found from the statements of Mr. Bowman as to which there is no substantial contradiction. The written statement which the court, by adjourning, allowed Mr. Bowman time and opportunity to make with care and deliberation, after he had heard the testimony of the grand juror, shows that he was not guilty of intentional wrong or a contempt of the authority of the court, and it also shows sufficient ground for quashing the indictment. I am not fully advised as to the peculiar functions and duties of an examiner of the department of justice; but, I suppose, from the dignity of the official title, that he is an important officer duly authorized to investigate matters, committed to him by his department, in which there are irregularities, apparent frauds, or other suspected violations of law; that in accomplishing the ends of justice he affords fair opportunities for innocent parties to make reasonable explanations and adjustments; and that he repods to the proper authorities such negligent defaults of duty and such willful offenses as he may, in his official capacity, deem proper for a civil action 0 1' criminal prosecution. The other officers of the government, in any way connected with such matters, should afford him all proper facilities in their power to aid him in the performance of his duties. When he comes into a court of justice as a witness he is entitled to all the privileges and imm\lnities of other witnesses; nothing more and nothing less. It is his duty, to communicate to the district attorney information as to the facts of a case which he has investigated, and during the progrossof a trial he may sit in the bar of the court and
777
make suggestions to the district attorney upon matters of evidence, but he certainly cannot enter the grand jury room and assist that body in their investigations. The district attorney exercises that privilege only by the express permission of the court, and I am inclined to the opinion that the court could not legally confer such high au· thority upon an examiner of the department of justice. There was no necessity for the action of Mr. Bowman as custodian of the papers. Papers which are used as evidence in the prosecution of criminal trials should be placed in the custody of the court, and be subject to its inspection and control. I am of the opinion that no documentary evidence ought ever to be submitted to a grand jury except under the direction of the court. which Mr. Bowman possessed as to th,e items of The account must have been derived, in a great degree, from the officers of the treasury who had received and had special charge of said accounts, or from the witnesses which he had e'X.amined in the coutse of his investigations. This information could easily have been communicated to the district attorney or his assistant, who are skillful, able, and learned in their official duties and very prompt in discharging them. A judgment quashing a bill puts an end to that case, and frees the defendant from the accrued costs, but not from further investigation of the charges alleged, and it causes very little inconvenience and delay in the prosecution at the same term. The defendan,t is held to answer on a new bill, which may be sent to the grand jury with the attending witnesses, and on the return of a true bill a. trial can at once be commenced. It is all-important to the best interests of the government and of society that willful offenders should be speedily tried and punished, but it is equally important that the citizen should not be deprived of those guaranties which the law affords for securing his personal rights and liberties. Perhaps the most important protection to personal liberty consists in the mode of trial which is secured to every person accused of crime. From its initiation until guilt is established beyond a reasonable doubt by the verdict of a jury, a trial is surrounded by certain safeguards which the government cannot dispense with. Cooley, Const. Lim. 309. Courts cannot administer justice unless they enforce the well-settled principles and observe the due forms of law. Any other mode of trial would be a mockery of justice and judicial oppression, and would soon render courts objects of ,distrust and aversion.
FEDERAL REPORTEr..
Upon caretul consideration, after an examination of authorities, I am well satisfied that my judgment quashing the bill of in this case was in accordance with the plainest principles of natural justice and the laws of the land.
'Circuz't Court, D. Vermont. May Term, CoNSTITUTIONAL. LA.w':"'INFAMOUB CRIMB-PROSECUTION BY HiFORMATION.
Passing counterfeit money of the United States is not an infamous crime, within the meaning- of the fifth amendment to the constitution, and may be prosecuted by information.
Information for Pa!3Sing Counterfeit Money. Kittredge U. S. Atty., f.or prosecution. John Young and He ..tan S. Royce, for respondent. WHEELEJ1, J. ,This is an information filed by the district attorney, by leave of. couI't, against the respondent for passing oounterfeit money QftheUnited States. The respond'lnt has deII!-urred to the information solely upon the ground that the prosecution should be by indictment, and not by information, because, it is said, this is an: infamous crime within the meaning of article 5 of the e.mendments to thecons.tituti,on of the United States, which provides that .perlilon shall be held to answer fora capital or otherwise infamous crime except on presentment or indictment of a grand jury, etc. This amendment was proposed in 1789, and finally adopted in 1792. At oommonJu;w the counterfeiting of the king's money was treason, and a felony, and infamous, but the mere passing of the counterfeits was only a misdemeanor. 1 Hawk. P. C. §§ 55, 50; East, Cr. Law, ro. 4, § 26 j Bac. Abr. "Treason, I;" Fox v. Ohio, 5 HowAlO. This offense would not, be infamous unless made so by statute. There was no statute of the United States at the time of of th,1.t amen4mflut.llncl isno.ne now, characterizing it in anyway.. There. have in the meantime, making it a feature has been repealed. The repeal took away. ,the. efLect of the charaotel'ization, and left the crime as it was before,-.-a misdemeanor in punishment was made s verej bilt the extent: of punishment .does Do.t'alter the. nature. .of the offense.: U. S. v. . .. . . . 14 Amer. La,w Rog. 433; U. S. v. Coppersmith,. 4 EEI/.· Rmp.
no