Puslapio vaizdai
PDF
„ePub“

This amendment is not limited in its application to citizens, but applies generally to all persons within the jurisdiction of the United States. Yick Wo v. Hopkins (1886), 118 U. S. 356; Colyer v. Skeffington (D. C. 1920), 265 Fed. 17.

The fundamental guaranties of life, liberty, and property made by the Federal Constitution have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country. Neely v. Henkel (1901), 21 Sup. Ct. 302, 307, 180 U. S. 109; 45 L. Ed. 448. This amendment only announces and reaffirms the ancient principles of the common law, and prevents them from being unjustly invaded by the power of the Federal Government. North Carolina v. Vanderford (C. C. 1888), 35 Fed. 283.

This amendment applies to proceedings in the United States courts. Ex parte Brown (D. C. 1905), 140 Fed. 461.

Under this amendment the people through the grand jury system initiate criminal prosecutions, and it was adopted as a safeguard against arbitrary or oppressive action. U. S. v. Wells (D. C. 1908), 163 Fed.` 313.

Provisions of this amendment for the protection of persons charged with crime held not applicable to proceedings for extradition to a foreign country. Ex parte La Mantia (D. C. 1913), 206 Fed. 330.

The provision in Fourteenth Amendment that no State shall make any law abridging the privileges and immunities of citizens of the United States, does not extend the operation of this amendment to the States. State v. Atkinson (1893), 40 S. C. 363, 18 S. E. 1021, 42 Am. St. Rep. 877; Id. (1894), 41 S. C. 551, 19 S. E. 691.

Applicability to District of Columbia.— The jurisdiction of Congress in respect to the District of Columbia, in matters municipal as well as political, is exclusive, and not controlled by the provisions of the Fourteenth Amendment, though, in the exercise of such legislative powers, Congress is subject to the provisions of the fifth amendment. Wight v. Davidson (1901), 21 Sup. Ct. 616, 621, 181 U. S. 371, 45 L. Ed. 900. Applicability to Territories. Where Territory is a part of the United States, its Inhabitants are entitled to the guaranties of this amendment. Rasmussen v. U. S. (1905), 25 Sup. Ct. 514, 518, 197 U. S. 516, 49 L. Ed. 862.

a

II. Necessity for Presentment or Indictment.

Scope of provision.-The provision that "no person shall be held to answer for a capital or other infamous crime, unless on Indictment or presentment of a grand jury," does not apply to the individual States, but restricts the power to the Gen

eral Government only. Williams v. Hert (C. C. 1901), 110 Fed. 166. [C. S. p. 14,323].

Territorial enactments.-The guaranty of a trial on presentment or indictment of one charged with an infamous crime, constitutes a substantial right under the laws of Congress and the laws of Oklahoma Territory, and any State law which operates as a de nial of such right alters the situation of accused to his disadvantage and is ex post facto as to such offense. Garnsey v. State (Okl. 1910), 112 Pac. 24.

Sufficiency of presentment or indictment. The indictment referred to is the presentment to the proper court under oath by a grand jury duly impaneled of a charge describing an offense against the law. Ex parte Bain (1887), 7 Sup. Ct. 781, 121 U. S. 1, 30 L. Ed. 849; U. S. v. Munday (D. C. 1914), 211 Fed. 536.

In case of an infamous crime, required to be charged by indictment, the indictment is a necessary requisite to give the court jurisdiction. Garnsey v. State (Okl. 1910), 112 Pac. 24.

Amendment of indictment.-When an indictment is filed no change can be made in the body of the instrument by order of the court or by the prosecuting attorney without a resubmission to the grand jury, and the fact that the court may deem the change immaterial, as striking out of surplus words, makes no difference. Ex parte Bain (1887), 7 Sup. Ct. 781, 784, 121 U. S. 1, 30 L. Ed. 849.

Waiver of right.-One can not waive his constitutional right to be tried by indictment or presentment. Ex parte McClusky (C. C. 1889), 40 Fed: 71.

The provision requiring an indictment by a grand jury does not give a citizen or a temporary subject the right to claim the guaranty when tried before a consul or tribunal, in accordance with a treaty for offenses committed in a foreign country; nor does the fact that the offense is committed on an American vessel give the offender the right to invoke the guaranty on the ground that the deck is territory of the United States. Ross v. McIntyre (1891), 11 Sup. Ct. 897, 140 U. S. 453, 35 L. Ed. 581. Where an offense is made punishable by imprisonment, but the statute provides no mode of prosecution, an indictment will lie. U. S. v. Malebran (C. C. 1820), Fed. Cas. No. 15,711.

Where an act is declared unlawful, and a penalty prescribed, but no remedy speclally provided, an offender may be proceeded against either by indictment or by an action of debt. U. S. v. Bougher (C. C. 1854), Fed. Cas. No. 14,627.

Infamous crime.-A crime punishable by imprisonment in a State prison or peni

tentiary with or without hard labor is an infamous crime. Ex parte Wilson (1885), 5 Sup. Ct. 935, 114 U. S. 417, 29 L. Ed. 89 [C. S. p. 14,325].

In determining whether a crime is infamous, the inquiry is whether it "is one for which the statute authorizes the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one." U. S. v. Thompson (D. C. 1912), 202 Fed. 346; U. S. v. Evans (1906), 28 App. D. C. 264; Palmer v. Lenovitz (1910), 35 App. D. C. 303.

The amendment did not have special reference to the particular crimes which theretofore had been known at common law as capital and infamous; but it was intended for all offenses which might thereafter be made capital or infamous by the legislation of Congress. U. S. v. Brady (D. C. 1881), 3 Cr. Law Mag. 69.

To make a penalty infamous it must pronounce against the offender a degradation from his civil rights as a citizen, and in the absence of such forfeiture the crime is not legally infamous unless it is so expressly pronounced. U. S. v. Cross (D. C. 1873), 1 McArthur, 149.

An offense punishable by imprisonment not exceeding one year without hard labor is not infamous. U. S. v. Cobb (D. C. 1890), 43 Fed. 570.

It is not the law that no crime is infamous within the meaning of this amendment that has not been so declared by Congress. Ex parte Wilson (1885), 5 Sup. Ct. 935, 114 U. S. 417, 29 L. Ed. 89.

Jurisdiction of military courts.-Military commissions organized in a State invaded and not engaged in rebellion in which the Federal courts were open and in the unobstructed exercise of their judicial functions had no jurisdiction to try a citizen who was neither a resident of a rebellious State or prisoner of war nor a person in the military or naval service, and Congress could not invest them with such power. Ex parte Milligan (1866), 4 Wall. 2, 119, 18 L. Ed. 281.

This amendment expressly excepts cases arising in the land or naval forces," and leaves such cases subject to the rules for the government and regulation of those forces which, by the eighth section of the first article of the Constitution, Congress is empowered to make. Courts-martial form no part of the judicial system of the United States, and their proceedings, within the limits of their jurisdiction, can not be controlled or revised by the civil courts. Congress has never conferred upon civil officers or magistrates or private citizens any power over offenders punishable only in a military tribunal. Kurtz v. Moffitt (1885),

6 Sup. Ct. 148, 152, 115 U. S. 487, 29 L. Ed. 458.

This provision is no authority for the contention that the district court has no jurisdiction to indict and try a person charged with having forged an obligation of the United States with intent to defraud, which is made an offense against the United States by R. S. sec. 5414, although such person was at the time an officer of the Army, and the alleged offense was committed at a military post and, with intent to defraud an enlisted soldier, where accused has since been discharged from the Army without any action against him having been taken by the military authorities. Neall r. U. S. (1902). 118 Fed. 699, 701, 56 C. C. A. 31.

Articles of War can not take the place of or supersede the criminal or civil laws without violating this amendment. In re Kelly (C. C. 1895), 71 Fed, 545, 553.

Offenses triable by court-martial.-Act March 3, 1873, providing that prisoners under confinement in military prisons undergoing sentences of court-martial shall be liable to trial and punishment by courtsmartial for offenses committed during said confinement, is not in conflict with this amendment. In re Craig (C. C. 1895), 70 Fed. 969; ex parte Wildman (D. C. 1876), Fed. Cas. No. 17.653a.

Congress may provide for the trial and punishment of military and naval offenses in the manner practiced by civilized nations. Dynes v. Hoover (1857), 20 How. 65, 78, 15 L. Ed. 838.

A soldier who while standing guard over a jail attempts to kill a prisoner onfin ̧ð therein may be tried by court-martial, in being a case "arising in the land or naval forces," and the exception as to "actua! service in time of war or public danger" relating only to the militia. Ex parte Mason (1881), 105 U. S. 696, 700, 26 L. Ed. 1213.

The provision that "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," in effect says that offenses in those forces shall be dealt with according to military law. Runkle v. U. S. (1884), 19 Ct. Cl. 396. Conscription act March 3, 1863, making a man subject to military laws, and liable to punishment as a deserter, as soon as he is drafted, and before he is mustered into service, is not repugnant to the amend ment. Kneedler v. Lane (1863), 45 Pa. St. (9 Wright) 238, 5 Phila. 485.

[ocr errors][merged small]

L. Ed. 1213; Johnson v. Sayre (1895), 15 Sup. Ct. 773, 775, 158 U. S. 109, 39 L. Ed. 914; in re Bogart (C. C. 1873), Fed. Cas. No. 1,526; U. S. v. Mackenzie (D. C.), Fed. Cas. No. 18,313.

III. Former Jeopardy.

Limitation to Federal action. The provision that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb, applies only to offenses against, and trials under, the laws of the United States. Barron v. City of Baltimore (1833), 32 U. S. (7 Pet.) 243, 8 L. Ed. 672. [C. S. p. 14,328].

Jeopardy. The common-law principle of double jeopardy is included in this article. In re Lange (1873), 18 Wall. 163, 170, 21 L. Ed. 872.

[blocks in formation]

to mean nothing short of the acquittal or conviction of the prisoner, and the judgment of the court thereon. U. S. v. Haskell (C. C. 1823), Fed. Cas. No. 15,321.

The jeopardy of the law means real peril, originally of life or limb, and always of substantial punishment or penalty. (1906) 25 Op. Atty. Gen. 623.

In construing this provision resort should be had to the common law, since such pro visions are a mere recognition of a maxim of the common law. State v. Duvall (1914), 65 So. 904, 135 La. 710.

"Limb."-The term "limb is a typical expression for punishment. State v. Cheevers (1852), 7 La. Ann. 40.

Applicability to Philippine Islands - By the Bill of Rights enacted by Congress for the Philippine Islands (act July 1, 1902, sec. 5, (32 Stat. 693), guaranties cquivalent to the "twice in jeopardy' clause of this amendment were extended to the Philippine Islands. Serra v. Mortiga (1907), 27 Sup. Ct. 343, 345, 204 U. S. 470, 51 L. Ed. 571.

One acquitted by a military court of competent jurisdiction of the crime of homicide, as defined by Pen. Code P. I. art. 404, can not be tried a second time in a civil court of those islands for the same offense. Grafton v. U. S. (1907), 27 S. Ct. 749, 206 U. S. 333, 51 L. Ed. 1084, 11 Ann. Cas. 640. Prosecutions to which amendment applies. It is not necessary to insist that other cases besides those involving life or limb are positively covered by the language of this amendment. It is very clearly the spirit of the instrument to prevent a second prosecution for the same crime, so far as the common law gave that protection. Ex parte Lange (1873), 85 U. S. (18 Wall.) 163, 21 L. Ed. 872.

The provision that no person shall be subject, for the same offense, to be twice

put in jeopardy of life or limb, applies to misdemeanors as well as treason and felony. Berkowitz v. U. S. (1899), 93 Fed. 452, 35 C. C. A. 379.

Times at which jeopardy attaches.-Act Mar. 2, 1907, allowing the United States a writ of error in certain instances in criminal cases, is not in violation of this provision; the point of Jeopardy not having been reached in the cases provided for. Taylor v. U. S. (1907), 28 Sup. Ct. 53, 55, 207 U. S. 120, 52 L. Ed. 130.

Where at the time set for hearing a motion to punish defendant for contempt for violation of an injunction, ex parte affidavits taken by petitioners were suppressed on defendant's motion, and the hearing was continued for the taking of testimony, such proceeding did not put defendant in jeopardy nor constitute a bar to a subsequent hearing. New Jersey Patent Co. v. Martin (C. C. 1911), 186 Fed. 513.

One is in jeopardy when put on trial before a court of competent jurisdiction on an indictment sufficient to sustain a conviction, and a jury has been impaneled and sworn to try him, and a formal judgment of acquittal after a trial regularly conducted is rendered. Nordlinger v. U. S. (1904), 24 App. D. C. 406, 70 L. R. A. 227.

The provision has reference only to the trial and verdict; and no person can claim its protection, unless he has once been tried by a lawful jury, upon a good indictment, and been acquitted or convicted. Taylor r. State (1872), 35 Tex. 97.

Identity of offenses.-The act of Congress has made the judgments of the Supreme Court of the District of Columbia conclusive as to the question whether under the circumstances of the case a prisoner has or has not for the same offense been twice put in jeopardy of life or limb. Ex parte Bigelow (1885), 5 Sup. Ct. 542, 113 U. S. 328, 28 L. Ed. 1005.

Whether a conviction or acquittal under one indictment is a bar to a subsequent conviction or sentence under another depends, not on whether defendant has been tried for the same act, but whether he has been put in jeopardy for the identical offense. Ryan v. U. S. (C. C. A. 1914), 216 Fed. 13.

Sufficiency of facts charged in second prosecution to sustain former prosecution.--On a plea of former acquittal, the test of the identity of the offenses is whether the facts necessary to conviction under the second indictment would have been sufficient, if proved, to have warranted

[blocks in formation]

Commonwealth v. Shoener (1906), 30 Pa. Super Ct. 321; judgment affirmed (1906), 64 A. 890, 216 Pa. 71.

Offenses against State and Federal laws in the same act.-A conviction in the circuit court of the United States for a crime of which that court has no jurisdiction is not a bar to a prosecution in a State court. Blyew V. Commonwealth (1891), 91 Ky. 200, 15 S. W. 356; Commonwealth v. Peters (1847), 53 Mass. (12 Metc.) 387.

An acquittal of murder after a regular trial in a State court having full jurisdiction in the premises is a bar to so much of an indictment for conspiring criminally in violation of R. S. secs. 5508, 5509, as seeks by charging defendants with the commission of such murder, to enforce the provision of sec. 5509, that if, in carrying out such conspiracy, an offense against the State has been committed, the punishment provided for by the State for such offense shall be imposed. U. S. v. Mason (1909), 29 Sup. Ct. 480, 213 U. S. 115, 53 L. Ed. 725.

A. and B. were indicted in the United States court for the crime of manslaughter, committed in killing an Indian on the Umatilla Reservation, and pleaded to the indictment a former acquittal, from which plea it appeared that they had been indicted and tried in the State court for the murder of said Indian, and acquitted. Held, on demurrer to the plea, that the crime of which the defendants were acquitted in the State court was not the same as that charged in the indictment in the United States court, the defendants being guilty of two crimes-one against the State, and the other against the United States-and therefore the plea was bad. U. S. v. Barnhart (C. C. 1884), 22 Fed. 285. While the finding of a court of military inquiry, acquitting the prisoner, charged with killing a military prisoner to prevent his escape, of all blame, is not a legal bar to a prosecution in the civil courts, it is entitled to weight as an expression of the views of the military court of the necessity of using a musket to prevent the escape of the deceased. U. S. v. Clark (C. C. 1887), 31 Fed. 710.

An acquittal by a military court-martial is no bar to a prosecution for the same act by the proper State civil authorities. In re Fair (C. C. 1900), 100 Fed. 149.

The conviction and punishment of a defendant for violation of a state law is not technically a bar to his conviction and punishment under a Federal law for the same act; but, in the absence of extraordinary circumstances, where the offenses are substantially the same, such double punish

ment should not be inflicted. U. S. v. Palan (C. C. 1909), 167 Fed. 991.

Where petitioner was convicted and served a term for breaking and entering a building used as a post office on December 12, 1904, with intent to commit larceny therein, and on his discharge was immedi ately arrested on an indictment in the State court, charging that on the same day he unlawfully, etc., entered the private office of A. and did feloniously take, steal, and carry away therefrom $700 in money, $800 in postage stamps, and other valuable papers and checks of the value of $37, the property of A., but there was nothing to indicate that such property was or might be the property of the Government, there was no such similarity of offenses as to entitle accused to release. Ex parte Roach (D. C. 1908), 166 Fed. 344.

That accused was prosecuted and convicted under R. S. sec. 5478, imposing a penalty for forcibly breaking and entering a post office with intent to commit larceny therein, would not justify a plea of former conviction to bar a subsequent prosecution by State authorities for burglary under an indictment charging the same facts. State v. Moore (Iowa, 1909), 121 N. W. 1052.

A statute of Massachusetts providing for the punishment of an act which is also punishable under the statutes of the United States is not unconstitutional on the ground that it makes a person liable to be punished twice for the same offense, since an acquittal or conviction in one jurisdiction is a bar to a trial for the same crime in the other. Commonwealth 2'. Fuller (1844), 49 Mass. (8 Metc.), 313, 41 Am. Dec. 509.

An acquittal by a general court-martial, established pursuant to law, for punishing offenses when committed by persons in the service of the United States, can not be pleaded in bar to an indictment for murder, under the laws of this State. State v. Rankin (1867), 44 Tenn. (4 Cold.) 145.

A party may be subjected to a different and double punishment for the same act as two different offenses, when it is in violation of the laws of the United States and also of the State. This is not a violation of the Constitution of the United States by placing a party in jeopardy twice for the same act. Id.

Lesser offenses included in greater.An acquittal of homicide, as defined in Pen, Code P. I. art. 404, is a bar to a subsequent conviction of the same offense arising out of the same facts, under an information charg Ing the higher crime of assassination, as defined by article 403, since, if not guilty of the lesser crime, the accused could not, for the same acts, be guilty of the offense of

higher grade. Grafton v. U. S. (1907), 27 Sup. Ct. 749, 752, 206 U. S. 333, 51 L. Ed. 1084, 11 Ann. Cas. 640.

A conviction of assault and battery will not bar a subsequent indictment for murder, where the person afterwards dies from the injuries. Hopkins v. U. S. (1896), 4 App. D. C. 430.

Different offenses in same transaction.-Since indictable statutory offenses may be punished as such while the offenders may still be subjected to punishment for the same acts as contempts, R. S. sec. 102, making it a misdemeanor punishable by indictment to refuse to give testimony before either house of Congress, is not invalid, as putting the witness twice in jeopardy for the same offense, though the refusal may still be punished as a contempt. In re Chapman (1897), 17 Sup. Ct. 677, 166 U. S. 661, 41 L. Ed. 1154.

A person is not twice put in jeopardy, by a sentence of an Army court-martial imposing both fine and imprisonment upon an Army officer convicted of two charges of violating the sixtieth article of war, one of which charges a conspiracy to defraud the United States and the other the causing of false and fraudulent claims to be made against the United States, even if the punishment prescribed by such article for violations of its provisions is confined to fine, or imprisonment In the alternative, as such charges are separate and distinct offenses, although they related to and grew out of one transaction. Carter 12. MeClaughry (1902), 22 Sup. Ct. 181, 183 U. S. 365, 46 L. Ed. 236, affirming order (C. C. 1990), 105 Fed. 614.

Punishment of dismissal from the Army imposed by sentence of an Army courtmartial for conduct unbecoming an officer and a gentleman, under the sixty-first article of war, is not illegal on the theory that, as by such sentence, fine, and imprisonment are also imposed for conspiring to defraud the United States and causing false and fraudulent claims to be made against the United States, in violation of the sixtieth article of war, a third punishment is inflicted where but two offenses were committed, since the offense of conduct unbecoming an officer and a gentleman is not the same offense as conspiracy to defraud, or the causing of false and fraudulent claims to be made, although to be guilty of the latter involves being guilty of the former. Id.

An indictment under R. S. sec. 5440, charging a defendant with conspiring to utter as true false naturalization certificates, in violation of R. S. sec. 5424, charges an offense different from that inder the lafter section; and hence an acquittal on the indictment for such conspiracy is not a

bar to a subsequent prosecution for the offense of uttering, etc. Berkowitz v. U. S. (1899), 93 Fed. 452, 35 C. C. A. 379.

The words same offense " are not synonymous with the words "same act," and, since more than one offense may be committed by a single act, this amendment does not shield the perpetrator from punishment for other offenses when he has been convicted or acquitted of one, though it exempts him from a second prosecution for the identical offense. In re Stubbs (C. C. 1905), 133 Fed. 1012.

Particular offenses.-That defendant had been acquitted of passing a counterfeit note was no bar to his subsequent prosecution for passing another counterfeit note. C. S. v. Raudenbush (1834), 8 Pet. 288, 289, 8 L. Ed. 948.

A plea of former jeopardy to an indictment for murder can not be based upon the fact that, upon the trial of two consolidated indictments for two other murders committed by defendant on the same day as the one charged in the indictment in question, he was found not guilty on the issue of insanity, which is the defense set up to such indictment. Hotema v. U. S. (1902), 22 Sup. Ct. 895, 186 U. S. 413, 46 L. Ed. 1225.

An acquittal upon the charge of having received the compensation forbidden by R. S., sec. 1782, from a specified person,

described in the indictment as an offcer and employee of a corporation, will not sustain a plea in bar of a prosecution upon the charge of having received such compensation from the corporation, where the accused declined to plead further after his demurrer to the answer, alleging that the two offenses are not, in legal effect, identical, was overruled. Burton r. U. S. (1906), 26 Sup. Ct. 688, 697, 202 U. S. 344, 50 L. Ed. 1057, 6 Ann. Cas. 392.

A person acquitted of a crime can not be again tried for it under the guise of a charge of perjury, and although he may be prosecuted for perjury for false swearing on his trial, where his testimony was not as broad as the charge, as a denial of guilt, but was to a subordinate evidential matter, the evidence on his trial must be confined to the narrower issue, and not be given such range as to amount to a retrial of the first case. Chitwood v. U. S. (1910), 178 Fed. 442, 101 C. C. A. 342.

One may be convicted of perjury for testifying falsely in his own behalf on his trial for an offense for which he was acquitted without being put twice in jeopardy. Allen v. U. S. (1912), 194 Fed. C64, 114 C. C. A. 357, 39 L. R. A. (N. S.), 385.

An acquittal upon an indictment for forging an order with intent to defraud

« AnkstesnisTęsti »