73 issues it,70 must show his authority," where and when made,72 must issue in the name of the proper authority,78 and be directed to the proper jailer,74 must sufficiently describe the accused to identify him, giving his Christian name if known,75 must state the nature of his offense,76 and the time and place of his imprisonment." Errors in commitment do not affect the validity of subsequent proper proceedings.78 The remedy for illegal commitment is by habeas corpus. 70 State v. Caswell, Charlt. (Ga.) 280; 4 Bl. Comm. 300. 71 State V. Manley, 1 Overt. (Tenn.) 428; 1 Chitty Crim. L. 109. 72 2 Hale P. C. 122. 731 Chitty Crim. L. 109. 74 Rex v. Smith, 2 Strange 934. 751 Hale P. C. 577. 76 Commonwealth v. Ward, 4 Mass. 497; 4 B1. Comm. 300. 77 Rex v. Fell, 1 Ld. Raym. 424; 1 Chitty Crim. L. 111. 78 In re Schurman, 40 Kans. 533, 20 Pac. 277. § 895. Modes of accusation-Indictment-Information.Before a person can be put on trial for a crime a formal accusation must be made against him, otherwise the court The has no jurisdiction, even by consent of the accused. chief modes of accusation are indictment by a grand jury, and information by the proper prosecuting officer, without intervention of a grand jury. Accusation may be by coroner's inquisition in cases of homicide, or by complaint and information upon oath of a private person. Originally the indictment was an informal, oral statement made by the foreman of the grand jury and taken down in writing by the clerk of the court, who later recorded it. In the reign of Edward I a statute was passed requiring the grand jury to make its presentments in writing, and by the year 1500 the present rigid form of indictment, with its many technicalities, had been established. There is a certain distinction between an indictment and a presentment, in that a presentment was drawn up by the grand jury, from information possessed or obtained by them, upon which an indictment was afterwards drawn up by the proper officer, while an indictment was drawn up by the prosecuting officer, submitted by him to the grand jury, and by them found as true. This distinction is of little practical value today. An information lies at common law for all misdemeanors, but not for felonies. The information is merely the allegation of the prosecuting officer, that he believes that there is sufficient evidence for instituting a criminal action againsta certain person. The procedure is regulated in most states by statutes, some of which require verification;2 others that 1 People v. Campbell, 4 Park Cr. (N. Y.) 386; State v. Duhon, 142 La. 919, 77 So. 791; Reynolds v. State (Tex. Cr.), 198 S. W. 958; State v. LaFlamme, 116 Maine 41, 99 Atl. 772; Sherrod v. State, 197 Ala. 286, 72 So. 540; Merchant v. State, 12 Okla. Cr. 360, 157 Pac. 2 State v. Hayward, 83 Mo. 299. there shall have been a preliminary examination before a magistrate, and a finding of probable cause.3 At common law the information need not be verified. Where a death occurs under circumstances requiring investigation, the coroner summons a jury, who are sworn, view the body, and take evidence, and if the jury finds that the deceased was killed by some person, under circumstances amounting to murder or manslaughter, the record of their finding, or inquisition, which is similar to the finding of a grand jury, is sufficient for the foundation of a prosecution. The formal rules applying to indictments also apply to inquisitions. In case of certain petty misdemeanors only, statutes permit in some states that prosecution may be had in an inferior court upon an information made under oath by a private person, similar to the complaint made for the purpose of arrest. § 896. The grand jury.—The grand jury dates from early English times, even as early as the reign of Henry II and came to this country with the early colonists as a part of our heritage of English law. As we have seen, at common law, prosecution for a felony must be upon indictment returned by a grand jury. The institution has been regarded as an essential to liberty, and is required by some constitutions, though in other states it is held that the grand jury system is not essential to the trial by due process of law which is guaranteed by constitutions, if some other formal and sufficient mode of accusation is provided." The grand jury is a body of men summoned from all parts of the county to determine whether sufficient evidence exists against persons charged with crime within the county 3 O'Hara v. People, 41 Mich. 623, 3 N. W. 161. 4 Reg. v. Ingham, 9 Cox Cr. C. 508. 5 Ex parte Bain, 121 U. S. 1, 30 L. ed. 849; Hurtado v. People, 110 U. S. 516, L. ed. 232; Alt v. State (Tex. Cr.), 203 S. W. 53. to put them on trial. At common law a full panel consists of twenty-three men, twelve of whom must concur in order to return an indictment. In some states the number has been changed by statute. In Indiana, for instance, a grand jury consists of six men, five of whom must concur in a finding." § 897. Qualifications of grand jurors.—The qualifications of grand and petit jurors are not the same. Unless statutes provide otherwise, grand jurors should be free holders of the county. But as grand jurors may find an indictment from their personal knowledge, and are not confined, as a petit jury is, to a finding based upon evidence offered before them, the fact that a grand juror has formed or expressed an opinion as to the guilt of the accused, or the fact that he is related to the injured party, or that he has a personal interest in his prosecution, 10 does not disqualify him. § 898. Procedure of grand jury.—After impaneling, a foreman is chosen, and the jurors are sworn, the usual oath binding them to diligently inquire into the matters given them in charge, to keep secret their proceedings, to present no one from envy, hatred or malice, to leave no one unpresented from fear, favor, affection, hope of reward, or gain, but to present all things truly, as they come to their knowledge, to the best of their understanding.11 As a rule the oath is given to the foreman in the presence of the others, 6 State v. Barker, 107 N. Car. 913, 12 S. E. 115, 10 L. R. A. 50; 2 Hale P. C. 121. 7 Burns' Rev. Stat. (1914), §§ 1955, 1981. See also, State v. Wood, 175 N. Car. 809, 95 S. E. 1050; State v. Bachman (Nev.), 168 Pac. 733. 8 State v. Clarissa, 11 Ala. 57. 9 In re Tucker, 8 Mass. 286; State v. Sharp, 110 N. Car. 604, 14 S. E. 504; State v. Easter, 30 Ohio St. 542, 27 Am. Rep. 478. 10 In re Tucker, 8 Mass. 286. See also, Christopoulo v. United States, 230 Fed. 788, 145 C. C. A. 98. 11 2 Bish. New Crim. Proc., § 856, (2). |