CHAPTER II.

MODES OF PROSECUTION.

§ 13. General classification. There are four recognized methods of criminal prosecution: (1) By indictment; (2) by information; (3) by criminal complaint; (4) by summons.

SECTION 1. INDICTMENTS.

§ 14. The grand jury. A grand jury is the grand inquest of the county, which should not only inquire into the general subject of crime, but should keep a keen watch upon public institutions and public officials. As a general rule, it should consist of representative men, selected from the county at large. Blackstone says, they should be picked from the county at large, "some out of every hundred," and that they "are usually gentlemen of the best figure in the county" (1). Generally the grand jury is impaneled at the opening of a term of court, and is given a few general instructions by the judge, as to their powers and duties; after which they retire to their own room, and proceed in a great degree independent of the court. The sessions of the grand jury are secret. None other than themselves and the witness testifying should be present, except the prosecuting attorney, who by their

(1) 4 Bl. Com. 302.

consent may be admitted into the grand jury room to advise them as to the law, or to examine witnesses. He should not express his opinion on the evidence, and he should always retire before they discuss the evidence or take a vote (2). The practice of prosecuting attorneys in entering a grand jury room without an invitation, and remaining there throughout the deliberations and voting, is a pernicious one. His presence, in itself, may have a prejudicial effect, and restrict freedom of discussion among the jurors. Although there may be some conflict of opinion, it is the better rule that any indictment discussed or voted upon in his presence should be promptly quashed by the court.

Of late years, proceedings before grand juries are becoming regarded as matters of form. Indictments are often voted upon hearsay testimony, or upon formal proof at the request of the public prosecutor. Accumulation of business is alleged as an excuse for the undue haste with which cases are considered, but if the grand jury cannot properly dispose of all the business upon its docket, it should do what it properly can and leave the responsibility with the court, to impanel an extra grand jury, or to discharge the prisoners awaiting action. The grand jury system properly conducted, stands between the people and unjust prosecutions; and is the means to investigate fraud and official corruption.

§ 15. Presentment of indictments. If a bill before a grand jury receive twelve affirmative votes, it is endorsed,

(2) Gitchel v. People. 146 Ill. 175.

"A true bill." When a grand jury is ready to make a report, it appears in open court, and after the roll is called by the clerk of the court, if a quorum of twelve is present, the foreman, in the presence of the other grand jurors, presents such indictments as are found to the presiding judge, who passes them to the clerk to file. This completes the presentment. The indictments then become a part of the files of the court, and capiases are immediately issued that the accused persons may be brought into court, and either bailed or committed to jail. So zealously does the law regard the rights of the accused, that it is a well established rule of procedure, that unless the record shows that the indictment was presented in open court, a verdict of guilty by a trial jury cannot stand (3).

§ 16. The indictment. An indictment is a written accusation setting forth the charge against the defendant. It should be clear and certain in its language, so as to enable both to the court and the defendant to understand the precise nature of the charge. Considerable of the technical nicety of language required by the earlier practice in England has been abandoned. In several jurisdictions we have statutes which declare that an indictment charging the offense in the language of the statute defining it, or so as to be easily understood, is sufficient; but these statutes do not repeal the fundamental rule that the essential facts constituting the offense must be stated (4).

(3)

Aylesworth v. People, 76 Ill. 301.

(4) U. S. v. Carll, 105 U. S. 611; Brown v. State, 116 Ga. 559.

An indictment should describe the defendant by his full name, state the time and place of the supposed offense, and the facts constituting it.

§ 17. Names of persons. In setting out the name of the defendant or other person necessary to be named, initials should not be used, except for a middle name. Generally the middle name is not considered material; yet in some instances it may be, as where a party customarily uses it. For example, the names: Henry Ward Beecher, and Oliver Wendell Holmes. In either of these instances, the omission of the middle name might cloud the identity.

§ 18. Allegations as to time. A date for the alleged offense should be stated. At common law it was improper to allege the date as "on or about," though in a considerable number of states statutes permit it now. Although a date be alleged, the courts will generally permit a different date to be proven, for the prosecution should not fail because witnesses do not remember exact dates, or disagree as to them. If, however, the date is descriptive of a record, as, for example, the date on which a perjury was committed in court, or is essential to the offense, as selling liquor on a holiday, then the date alleged must be strictly proven or the case will fail.

§ 19. Venue. Local description. Generally speaking, it is sufficient to allege that the supposed offense was committed in the county where the indictment is presented, for that shows the power and jurisdiction of the court to entertain the charge. This is what may be termed pleading the venue. The venue must not only be pleaded in the indictment but must be proven on the trial. There are

cases, however, in which a special locality must also be alleged and proven. Thus, in charges of burglary, arson, or keeping a gaming-house, a particular building or locality must be described, and proved as described.

§ 20. Matters of description. In describing persons, or things, the pleader should exercise great care that his descriptions are accurate; for in matters of description the proof must strictly conform to the allegations in the indictment. Not only should the pleader be careful that the description is accurate, but that it is not too minute; for, in matters of description, that which is unnecessary to state, when stated, may become a material part of the accusation and must be proven. Thus, where an indictment charged the larceny of a hog with a crop off the left ear and a slit in the right ear, and the owner testified that the stolen hog had a crop off the right ear and a slit in the left ear, it was held by the supreme court of Georgia, that the proof did not sustain the indictment (5). The defendant was indicted for the theft of a particularly described hog, and on that charge alone was he placed upon trial. However, when the proof is accessible, the better practice is to give a description, by which the property or article may be identified from other articles of its general class, and at the trial present evidence which will conform to the indictment (6).

§ 21. Pleading a statutory exception. If, in defining a crime, a statute declares an exception, then an indict

(6) For collection of cases with editorial notes see 13 Am. Cr. Rep. 675-732.