At common law, the King, through his Attorney-General, might file informations in certain classes of cases without any evidence and against all evidence. The Fourth Amendment to the Constitution of the United States provides, among other things, that no warrants shall issue but upon probable cause supported by oath or affirmation. It follows that no warrant may issue upon an information filed by a United States District Attorney, except it be supported by a statement made under oath or affirmation by someone having actual knowledge as to facts which if true, show probable cause to believe the accused guilty. If the latter is already in custody upon a warrant duly issued by a United States Commissioner upon a complaint in ordinary form, it is not necessary for the District Attorney to have new complaints or affidavits made. He may annex to his information the affidavits made to the complaint before the Commissioner or the evidence of the witnesses given at the preliminary hearing before the committing magistrate.2 Leave of Court is necessary before an information can be filed. This leave is usually granted, though it may be denied.3 92. Either Indictment or Information Necessary Before Accused Can Be Put Upon His Trial for Anything Other Than a Petty Offense.-No one can be tried, upon a criminal charge, unless he has been indicted by the. Grand Jury or an information has been filed against him by the District Attorney. Prosecutions for what at common law were known as petty offenses are exceptions to this rule. In all other cases the prosecution may begin with a complaint to, and a warrant of arrest from, the committing magistrate. The accused is given a hearing before the latter. The indictment or information is a subsequent step in the proceedings. The Grand Jury may, however, itself investigate United States vs. Tureaud, 20 Fed. 621; Johnston vs. United States, 87 Fed. 187. 2 United States vs. Baumert, 179 Fed. 739. 3 United States vs. Schurman, 177 Fed. 581. the case before a warrant has been sworn out against anybody. The first paper filed before any legal tribunal may be the presentment. In like manner the District Attorney may without giving the accused a previous hearing, exhibit an information against him. 93. An Indicted Person Arrested in the District in Which the Indictment Has Been Found, Cannot Demand a Preliminary Hearing.—Mr. Hughes in his book on Federal Procedure1 says "the preliminary examination is a valuable right, and the prisoner can have it either on prosecutions instituted by complaint or by indictment." For this the case of United States vs. Farrington is cited. An examination of the opinion in that case shows that the particular point was not involved. The Supreme Court appears to have definitely ruled that the absence of the preliminary examination is no ground for objection to the indictment.3 An earlier case on circuit was to the same effect. 94. Persons Accused of Anything More Serious Than Petty Offenses Cannot in Federal Courts Waive Jury Trials. There is one marked distinction in the trial of criminal cases between the practice of the Federal and some of the State Courts. For example, in the Courts of Maryland a prisoner may in any case whatever elect to be tried by the Judge without a jury. In the United States Courts he may do so only when charged with the so-called petty offenses.1 Among them are the violations of the navigation laws referred to in sections 4300 to 4304 of the Revised Statutes. These latter may be prosecuted without either indictment or information upon a written. complaint verified by oath and presented to the Court. It is read to the accused. He may plead to or answer it or make a counter statement. The trial is then proceeded with 1 25 Fed. 343. 'Goldsby vs. United States, 160 U. S. 73. 4 United States vs. Fuers, 25 Fed. Cases, No. 15174. 1Thompson vs. Utah, 170 U. S. 343. in a summary manner before the Court. The accused may at the time of pleading or answering demand a jury trial. If he does a plea of not guilty is entered on his behalf, and a jury is impanneled. The complaint takes the place of an indictment or information. To detain the accused until a jury can be gotten together to try him may sometimes inflict upon him a greater punishment than is merited by the offense with which he is charged. At one time many Federal Judges doubted whether even under such circumstances a defendant could constitutionally waive a jury trial. Whenever it was possible a jury was impanneled even when the traverser was willing to go to trial without one.2 I have in a few cases in this district, tried such cases without a jury. The doubt as to the constitutionality of such proceeding can no longer be entertained. The case of Shick vs. United States was an action by the Government to recover a penalty of $50 under section 11 of the Oleomargarine Act. The parties in writing waived a jury trial and agreed to submit the issues to the Court. This was something they had a clear statutory right to do if the proceeding was a civil one. The Supreme Court, however, held that the case was in its nature criminal, though it was one of the class known to the common law as petty offenses and did not necessarily involve any moral delinquency. was not a crime within the meaning of the third clause of section 2 of Article 3 of the Constitution, which provides that the trial of all crimes, except in cases of impeachment, shall be by jury. Consequently the defendant could lawfully and effectually waive his right to such a trial. It 95. The Trial.-In what respects may the procedure in a criminal trial in a Federal differ from that in a State Court? 96. Accused May Be Tried at One Time for Several Crimes or Offenses of the Same Class.-In Maryland, as In re Smith, 13 Fed. 25; United States vs. Smith, 17 Fed. 510. 195 U. S. 65. in many other States, one accused of several offenses may ordinarily demand a separate trial upon each of them. He may do so even when the different charges are of the same general character and are in a sense at least all parts of one continuous transaction. Thus, a clerk in the employ of the City of Baltimore was said to have embezzled or stolen a very large sum from it. It was stated that, as usual in such cases, the money had been taken on many different occasions. The Grand Jury made each of these asserted takings the basis of a distinct indictment. He had several trials. He had several trials. At each of them he was called upon to answer a single charge only. The evidence for the State was confined with more or less strictness, to matters relevant to the alleged abstraction of the particular sum named in the indictment the jury was sworn to try. Had he been in the employ of the Federal Government and accused of stealing from it, the case would have taken a different course. In all probability the Federal Grand Jury would have combined all the accusations against him in a single indictment of many counts. Each of these counts would have charged the taking of a particular sum. It is possible that separate indictments would have been found against him as they were in the State Court. In either event he would in all likelihood have been tried on all the charges at the same time. Section 1024 of the Revised Statutes provides, that whenever there are several charges against any person growing out of the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses which may be properly joined, instead of having several indictments, the whole may be joined in one indictment and in separate counts. If two or more indictments are found the Court may order them to be consolidated. The language is permissive, not mandatory. The question of whether indictments for offenses which may be joined shall be consolidated, is therefore left to the sound judicial discretion of the Court. It is not easy to lay down any precise rule as to what offenses may be joined in one indictment or tried together upon the consolidation of separate indictments, or as to when the prosecutor will be compelled to elect between or among the counts of the indictment. Such election will be compelled at any stage of the trial when it becomes apparent to the Court that otherwise the prisoner may be embarrassed in his defense.1 The accused demurs or pleads precisely as he does in the State Courts. 97. Challenge of Jurors.-Assuming that a plea of not guilty has been interposed, the next step is the selection of a jury. State law or practice has nothing to do with the number of peremptory challenges allowed either the Government or the accused. That is fixed by Federal statute.1 In trials for treason and capital felonies, the prisoner is entitled to twenty; for felonies not punishable by death to ten. In each of the above classes of cases the Government has six. In all other cases, civil and criminal, each party has three. The parties on either side, no matter how numerous they may be, are for the purpose of challenging considered as one. Five defendants jointly tried will have no more peremptory challenges that if only one of them stood at the bar. 98. Laws of Evidence in Criminal Trials in Federal Courts. After the jury has been selected and sworn and the opening statements made, the witnesses are examined. By what laws of evidence are the Federal Courts governed in the trial of criminal cases? Since 1862 a Federal statute has provided that, with some exceptions not necessary to be here mentioned, the laws of the State in which the Court is held shall govern the competency of witnesses in the Courts of the United States, in trials at common law, in equity and admiralty. A criminal 1 Pointer vs. United States, 151 U. S. 403. 1 Section 287, Jud. Code. |