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2674. The trial of all crimes except in cases of impeachment, must be by jury; and such trial shall be held in the state where the said crimes shall have been committed, but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed.(1) (See art. 81, supra.)
2675. In cases punishable with death, the trial shall be had in the county where the offence was committed; or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence.(2) (See art. 641.)
2676. The clerks of the district courts shall not issue process to summon or cause to be returned to any session of the said courts, a grand jury, unless by special order of the district judge.(3)*
(1) Con. art. 3, sec. 2, cl. 3.
(3) Act 20th May, 1826.
within the district, as must also the actual or regal presence of, or the procurement by the party. If the indictment charge the defendant with levying war at a particular place in a state, and specify the overt act, and his actual or legal presence be not proven; and his absence in another state be uncontroverted, evidence of subsequent transactions at a different place, is not admissible; but the court will reject all testimony of that kind at once, generally, without deciding particularly on each witness as adduced. No testimony in its nature corroborative or confirmatory, is admissible if the overt act be not proven by two witnesses.-U. S. v. Burr, Trial, 506, 507.
On the trial of an indictment for treason in levying war, as the crime consists in the overt act of levying war, and the treasonable intention, evidence to either point is relevant, and the prosecuting attorney may select the order in which such evidence shall be given. He may first give evidence of the treasonable intention: But such intention is that with which the overt act was committed, and relevant thereto, not a general evil disposition or an intention to commit a distinct fact. The latter is admissible only by way of corroboration as to the intention, and therefore ought to follow what it is to corroborate.-Ibid. 469, 472.
Conversations or actions at a different time and place may be given in evidence as corroborative of the overt act of levying war, after that has been proved in such manner as to be left to a jury.—Ibid.
• The number of the jury to be summoned for the trial of an offender is regulated by the common law, which authorizes the court to direct any number to be summoned on consideration of all the circumstances, and where the court make no order, the marshal may exercise his discretion. A venire should be issued in each case, and a separate panel returned.-U. S. v. Insurgents, 2 Dall. 335. (See U. S. v. Fries, 2 Dall. 514.
Where the state law fixes the number of grand jurors, the circuit court is governed thereby; if there be deficiencies on the panel, they must be supplied by the by-standers. And a person regularly put on the panel and summoned, cannot be displaced by the marshal.-U. S. v. Burr, 37.
And one under recognizance on a criminal charge, may, before the grand jury is sworn, which is to pass on the charge against him, except to an irregularity in summoning them.-Ibid.
If the panel of jurors be exhausted by the challenges of the defendant for favour, the court may award an additional panel of forty-eight.-Ibid, 353.
In murder, and the crimes set forth (treason excepted,) in the act of 30th April, 1790, the prisoner can challenge peremptorily only twenty jurors, but in offences created since that act in which the penalty is death, he may challenge thirty-five as at common law.-U. S. v. John's, 4 Dall. 414. See supra, act 3d March, 1835, sec. 4. In criminal cases, jurors who have deliberately formed and expressed an opinion that the defendant is guilty, are disqualified, unless the character of the defendant and the circumstances of his case are so notorious that a jury cannot be obtained, who have not made up their minds as to his guilt.-U. S. v. Burr, 416, 417, 418, 419. Mima & Child, v. Hepburn, 7 Cr, 290. U. S. v. Fries, 3 Dall. 515,
Grand, as well as petit jurors, may be challenged for favour by the United States and the prisoner; and they may be required to declare whether they have made up their minds, or have formed and expressed an opinion on the guilt or innocence of
2677. Any person who shall be accused and indicted of treason, shall have a copy of the indictment, and a list of the jury and witnesses to be produced on the trial for proving the said indictment, mentioning the names and places of abode of such witnesses and jurors, delivered unto him at least three entire days before he shall be tried for the same: and in other capital offences, shall have such copy of the indictment and list of the jury two entire days at least before the trial: And every person so accused and indicted for any of the crimes aforesaid, shall also be allowed and admitted to make his full defence by counsel learned in the law and the court before whom such person shall be tried, or some judge thereof, shall, and they are hereby authorized and required, immediately upon his request, to assign to such person such counsel, not exceeding two, as such person shall desire, to whom such counsel shall have free access at all seasonable hours; and every such person or persons accused or indicted of the crimes aforesaid, shall be allowed and admitted in his said defence to make any proof that he or they can produce, by lawful witness or witnesses, and shall have the like process of the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial, as is usually granted to compel witnesses to appear on the prosecution against them.(1)*
2678. In every presentment or indictment to be prosecuted against any person for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, or
(1) Act 30th April, 1790, sec. 28.
the accused.-U. S. v. Burr, Trial, 43, 424, 425. It is discretionary with a juror to testify as to the declarations made by him, but he cannot be compelled to give evidence in relation to them.-U. S. v. Fries, 3 Dall. 515.
If the panel of jurors be drawn out, and there be not twelve unchallenged, and the defendant retract his challenge of a juror previously made, such juror may serve on the trial.-U. S. v. Porter, 3 Dall. 345.
The caption of the indictment and the indictment itself form but one instrument; a copy of the caption as well as of the indictment, should be delivered to the prisoner. The list of the jurors and witnesses to be given to him should specify the township in which they respectively reside, but a specification of their occupations is not necessary.-U. S. v. Insurgents, 2 Dall. 335.
A reasonable time, though it be more than three days, may be allowed to the prisoner after the list of the names of the witnesses has been furnished to the accused to procure testimony from the county in which those witnesses live.-U. S. v. Stewart, 2 Dall. 243.
Persons charged with offences, not capital, have the right to examine their witnesses on the trial, and to the process of the court before as well as after indict.. ment found, to compel their attendance; and the subpœna in such case must be returnable at the term when the indictment is to be tried.-U. S. v. Burr, 180.
In misdemeanors punishable by statute, describing as the sole offender, the person committing the prohibited act, the principal is within the act, the accessary is not. One, therefore, who counsels or procures to be done acts forbidden by the sixth section of the act 20th April, 1818, art. 2593, is not indictable for committing the acts. Nor on an indictment so charging him, can the acts of the principal be given in evidence, unless to show the character and object of the expedition: nor the declarations of third persons not forming a part of the transactions, and not made in the presence of the accused; nor the acts of accomplices, except so far as they prove the character and objects of the expedition: nor the acts of the accused in a different district, constituting in themselves substantive cause for a prosecution, unless they go directly to prove the charges laid in the indictment.-U. S. v. Burr, 191, 189.
An indictment for perjury under the 18th section, act 30th April, 1790, must charge the perjury to have been in court.-U. S. v. Clark, 1 Gall. 497. And an indictment for perjury in a deposition is not good unless it state such deposition to have been taken pursuant to the laws of the United States. The word deposition means written testimony, and cannot be construed to include a verbal oath.-Ibid.
before whom the oath or affirmation was taken, (averring such court, or person or persons, to have a competent authority to administer the same,) together with the proper averment or averments to falsify the matter or matters wherein the perjury or perjuries is or are assigned; without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, other than as aforesaid, and without setting forth the commission or authority of the court, or person or persons before whom the perjury was committed.(1)
In every presentment or indictment for subornation of perjury, or for corrupt bargaining, or contracting with others to commit wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, and without setting forth the commission or authority of the court, or person or persons before whom the perjury was committed, or was agreed or promised to be committed.(2)
2679. If any person, upon his or her arraignment upon any indictment before any court of the United States for any offence, not capital, shall stand mute, or will not answer or plead to such indictment, the court shall, notwithstanding, proceed to the trial of the person, so standing mute, or refusing to answer or plead, as if he or she had pleaded not guilty, and upon a verdict being returned by the jury, may proceed to render judgment accordingly.(3) See supra, art. 2672, act 3d March, 1835.
2680. And the trial of all offences which shall be committed upon the high seas or elsewhere, out of the limits of any state or district, shall be in the district where the offender is apprehended, or into which he may be first brought.(3)*
2681. In every prosecution for any fine or forfeiture incurred under any statutes of the United States, if judgment is rendered against the defendant, he shall be subject to the payment of costs. And on every conviction for any other offence not capital, the court may, in their discretion, award that the defendant shall pay the costs of prosecution. And if any informer or plaintiff, on a penal statute, to whose benefit the penalty, or any part thereof, if recovered, is directed by law to accrue, shall discontinue his suit or prosecution, or shall be nonsuit in the same, or if, upon trial, a verdict shall pass for the defendant, the court shall award to the defendant his costs, unless such informer or plaintiff be an officer of the United States, specially authorized to commence such prosecution; and the court before whom the action or information shall be tried, shall, at the trial, in open court, certify upon record, that there was reasonable cause for commencing the same, in which case no costs shall be adjudged to the defendant.(4)
2682. No person or persons shall be prosecuted, tried, or punished for treason or other capital offence, wilful murder or forgery excepted, unless the indictment for the same be found by a grand jury within three years
(1) Act 30th April, 1790, sec. 19. (2) Ibid. sec. 20.
(3) Act 3d March, 1825, sec. 14.
* When several persons are charged in one indictment with the same offence, each defendant has a right to be tried separately.-U. S. v. Sharp & al. 1 Pet. 118,
The jury may be discharged from giving a verdict in a capital case, without the consent of the prisoner, whenever, in the opinion of the court, there is a manifest necessity therefor, or the ends of justice would be otherwise defeated. And the non-agreement of the jury is not a bar to the subsequent trial for the same offence. -U. S. v. Peres, 9 Wheat. 579.
next after the treason or capital offence aforesaid shall be done or committed; nor shall any person be prosecuted, tried, or punished for any of fence not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offence, or incurring the fine and forfeiture aforesaid: Provided, That nothing herein contained shall extend to any person or persons fleeing from justice.(1)*
2683. No conviction or judgement for any of the offences, (specified in act April 30th, 1790,) shall work corruption of blood, or any forfeiture of estate.(2) See art. 64.
2684. The manner of inflicting the punishment of death, shall be by hanging the person convicted by the neck until dead.(3)
2685. The court before whom any person shall be convicted of the crime of murder, for which he or she shall be sentenced to suffer death, may, at their discretion, add to the judgment, that the body of such offender shall be delivered to a surgeon for dissection; and the marshal, who is to cause such sentence to be executed, shall accordingly deliver the body of such offender, after execution done, to such surgeon as the court shall direct, for the purpose aforesaid: Provided, That such surgeon, or some other person by him appointed for the purpose, shall attend to receive and take away the dead body at the time of the execution of such offender.(4)
2686. If any person or persons shall, after such execution had, by force, rescue, or atempt to rescue, the body of such offender out of the custody of the marshal or his officers, during the conveyance of such body to any place for dissection as aforesaid; or shall, by force, rescue, or attempt to rescue, such body from the house of any surgeon, where the same shall have been deposited in pursuance of this act; every person so offending, shall be liable to a fine not exceeding one hundred dollars, and an imprisonment not exceeding twelve months.(5)
2687. In every case where any criminal convicted of any offence against the United States, shall be sentenced to imprisonment and confinement to hard labour, it shall be lawful for the court by which the sentence is passed, to order the same to be executed in any state prison, or penitentiary, within the district where such court is holden; the use of which prison or penitentiary may be allowed or granted by the legislature of such state for such purposes, and the expenses attendant upon the execution of such sentence, shall be paid by the United States.(6)
Whenever any criminal convicted of any offence against the United States, shall be imprisoned, in pursuance of such conviction, and of the sentence thereupon, in the prison or penitentiary of any state or territory, such
(1) Act April 30th, 1790, sec. 31. (2) Act 30th April, 1790, sec. 24. (3) Ibid. sec 32.
(4) Act 30th April, 1790, sec. 4.
(6) Act 3d March, 1825, sec. 15.
The limitation in the preceding article, extends as well to penalties created after as before the act of 1790, and to actions of debt as well as to informations and indictments.-Adams v. Woods, 2 Cranch, 336.
Any person or persons guilty of any crimes arising under the revenue laws of the United States, or incurring any fine or forfeiture by breaches of the said laws, may be prosecuted, tried, and punished, provided the indictment or information be found at any time within five years after committing the offence or incurring the fine and forfeiture, any law or provision to the contrary notwithstanding.-Act 26th March, 1804, sec. 3.
An offence against a temporary act of congress cannot be punished after the expiration of the act, unless a particular provision be made by law for that purpose. -The Irresistible, 7 Wheat. 552.
criminal shall, in all respects, be subject to the same discipline and treatment, as convicts sentenced by the courts of the state or territory, in which such prison or penitentiary is situated; and while so confined therein, shall also be exclusively under the control of the officers having charge of the same, under the laws of the said state or territory.(1)
2688. Whenever any person shall be convicted of any offence against the United States, which is punishable by fine and imprisonment, or by either, it shall be lawful for the court by which the sentence is passed, to order the sentence to be executed in any house of correction, or house of reformation for juvenile delinquents within the state or district where such court is holden, the use of which shall be allowed and authorized by the legislature of the state for such purpose. And the expenses attendant upon the execution of such sentence shall be paid by the United States.(2)
(1) Act June 30th, 1834.
(2) Act March 3d, 1835, sec. 5.