§ 130. Power of United States Attorney to Promise Immunity. A United States Attorney has no authority to promise immunity to an accomplice upon his turning "state's evidence." 1 But circumstances may exist which may compel the Court to dismiss the case where the accused carried out fully his agreement with the prosecuting attorney or the trial will be adjourned to give the defendant an opportunity to apply for a pardon.2

§ 130. 1 Whiskey Cases, 99 U. S. 594, 25 L. ed. 399; Gladstone v. United States, 248 Fed. 117, 160 C. C. A. 257 (9th Cir.), Certiorari denied, 247 U. S. 521, 62 L. ed. 1246, 38 S. C. 582; United States v.

Lee, 4 McLean, 103, Fed. Cas. No. 15588; United States v. Hinz, 35 Fed. 272.

2 United States v. Hinz et al., 35 Fed. 277; Gladstone v. United States, supra.

§ 131. Constitutional Right to Indictment.

§ 132. Grand Jury Cannot Be Dispensed with.

§ 133. Distinction between a Presentment and an Indictment.

§ 134. Ex Parte Character of Hearings before Grand Jury.

§ 135. Prying into Personal Affairs.

§ 136. Witnesses before Grand Jury.

§ 137. Common Law and Statutory Definition of Infamous Crimes.

§ 138. Right to Indictment Cannot Be Waived.

§ 139. Informing of Nature of Accusation.

§ 140. Organization of the Grand Jury - Discretionary Power of Court. § 141. Drawing of Jury.

§ 142. Foreman to Be Appointed.

§ 143. Number of Grand Jurors

§ 144. Challenge to Array

Challenges.

Exception Must Be Taken.

§ 145. Discharge of Grand Juries.

§ 146. Indictment Cannot Be Returned by Less than Twelve Jurors.

§ 147. Effect of Irregular Selection of Grand Jury.

§ 148. Time to Object to Organization of Grand Jury.

§ 149. Private Prosecutors not Permitted.

§ 150. Appointment of Special Prosecutors.

§ 151. Who May Be Present in Grand Jury Room.

§ 152. Presence of Unauthorized Persons, Stenographers in Grand Jury

§ 154. Motions to Quash Indictment When Based on Insufficient or Incompetent Evidence.

§ 155. Returning Indictment into Court.

§ 156. Change in Indictment.

§ 131. Constitutional Right to Indictment.

The Fifth Amendment to the Constitution of the United States 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 land or naval forces, or in the Militia, when in actual service in time of War or public danger." Without a good and sufficient indictment there can be no valid trial consistent with the "due process of law" clause of the Constitution of the United States.1 But where one grand jury failed to indict, the United States Attorney without leave of Court, may resubmit the case to another grand jury.2

§ 132. Grand Jury Cannot Be Dispensed With.

By the Constitution of the United States, no person can 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 land or naval forces, or in the militia when in actual service in time of war or public danger. No steps, therefore, can be taken, with the exceptions mentioned, for the prosecution of any crime of an infamous character and under that designation the whole series of felonies is classed-beyond the arrest, examination and commitment of the party accused, until the grand jury have deliberated and acted upon the accusation. It is not essential that the grand jury be first instructed or charged by the Court as to its duties. And both grand and petit juries may be selected from a part of the district.3

§ 133. Distinction between a Presentment and an Indictment. The Constitution speaks of a presentment or indictment by a grand jury. An indictment is a formal accusation made by the grand jury charging a party with the commission of a public offense. Formerly the public prosecutor handed an instrument of this character to the grand jury, that is, a bill of indictment in form, with a list of the witnesses to establish the offense charged.

§ 131. Fontana v. United States, 262 Fed. 283 (C. C. A. 8 Circ.)

2 United States v. Thompson (U. S. Supreme Court decided March 1, 1920).

§132. Frisbie v. United States, 157 U. S. 160, 39 L. ed. 657, 15 S. C. 586; Mr. Justice Field's charge to Jury, 2 Sawyer, 667, Fed. Cas. No. 18255.

2 Ruthenberg v. United States, 245 U. S. 480, 62 L. ed. 414, 38 S. C. 168, citing Frisbie v. United States, supra, and Hale v. Henkel, 201 U. S. 43, 50 L. ed. 652, 26 S. C. 370. Ruthenberg v. United States,

supra.

If in such case the jury found that the evidence produced justified the finding of an indictment they indorsed on the instrument 'A true bill'; otherwise, 'Not found', or 'Not a true Bill', or the words Ignoramus - we know nothing of it' from the use of which latter word the bill was sometimes said to be ignored. A presentment differs from an indictment in that it wants technical form, and is usually found by the grand jury upon their own knowledge, or upon the evidence before them, without having any bill from the public prosecutor. It is an informal accusation, which is generally regarded in the light of instructions upon which an indictment can be framed. This form of accusation has fallen in disuse since the practice has prevailed, which practice now generally obtains, for the prosecuting officer to attend the grand jury and advise them in their investigations. The government now seldom delivers bills of indictment to the grand jury in advance of their action, but generally awaits their judgment upon the matters laid before them. It is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and, after determining that the evidence is sufficient to justify putting the suspected party on trial, to direct the preparation of the formal charge or indictment.2

§ 134. Ex Parte Character of Hearings before Grand Jury. An investigation before a Federal Grand Jury is not a "suit" nor a prosecution.1 A person whose conduct is being investigated by a Federal Grand Jury is not entitled as of right to present his side of the case to the Grand Jury. At the foundation of our Federal Government the inquisitorial function of the Grand Jury and the compulsion of witnesses were recognized as incidents of the judicial power of the United States. By the Fifth Amendment a presentment or indictment by Grand Jury was made

§ 133. 1 Mr. Justice Field's charge to Jury, 2 Sawyer, 667, Fed. Cas. No. 18255; McKinney v. United States, 199 Fed. 25, 117 C. C. A. 403 (8th Cir.).

2 Frisbie v. United States, 157 U. S. 160, 39 L. ed. 657, 15 S. C. 586. § 134. Blair v. United States,

250 U. S. 273, 63 L. ed., 39 S. C. 468; Post v. United States, 161 U. S. 583, 40 L. ed. 816, 16 S. C. 611; Virginia v. Paul, 148 U. S. 107, 37 L. ed. 386, 13 S. C. 536.

2 United States v. Bolles, et al., 209 Fed. 682, and cases cited.

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essential to hold one to answer for a capital or otherwise infamous crime, and it was declared that no person should be compelled in a criminal case to be a witness against himself; while, by the Sixth Amendment, in all criminal prosecutions the accused was given the right to a speedy and public trial, with compulsory process for obtaining witnesses in his favor.3 By the first Judiciary Act,* the mode of proof by examination of witnesses in the courts of the United States was regulated, and their duty to appear and testify was recognized. These provisions are modified by subsequent legislation.5 By Act of March 2, 1793, it was enacted that subpoenas for witnesses required to attend a court of the United States in any district might run into any other district, with a proviso limiting the effect of this in civil causes so that witnesses living outside of the district in which the court was held need not attend beyond a limited distance from the place of their residence. Witnesses required to attend any term of the district court on the part of the United States may be subpoenaed to attend to testify generally; and under such process they shall appear before the grand or petit jury or both, as required by the court or the district attorney. By the same act fees for the attendance and mileage of witnesses were regulated; and it was provided that where the United States was a party, the marshal, on the order of the court, should pay such fees.10 The statutes 11 contain provisions for requiring witnesses in criminal proceedings to give recognizance for their appearance to testify, and for detaining them in prison in default of such recognizance.12 In all of these provisions, as in the general law upon the subject, it is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which

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