jeopardy of life and limb; nor shall be compelled in any criminal case to be witness against himself, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.96 "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defense."97 The principles contained in the fifth amendment together with those contained in the sixth date back to Magna Charta, where they may be found in their rudimentary state in the thirty-ninth and fortieth sections of that instrument as follows: 39. "No free man shall be taken or imprisoned, or disseised, or outlawed, or exiled, or any ways destroyed; nor will we go upon him, nor will we send unto him, unless by the lawful judgment of his peers, or by the laws of the land." 40. "To none will we sell, to none will we deny, or delay, right or justice." The protection under the fifth and sixth amendments do not apply to persons in the army or navy of the United States. Every one connected with either the military or naval branches of the public service is amenable to the jurisdiction which Congress has created for their government, and while thus serving surrenders his right to be tried by the civil courts.98 99 § 242. Indictment.-The necessity for commencing a prosecution by "presentment or indictment of a grand jury" only applies to what are known as infamous cases." Any crime which is punished by imprisonment, at hard labor, for life, or for at term of years, is an infamous one.100 A declaration by Congress 101 that a crime is, or is not, infamous has no effect.10 Misdemeanors are ordinarily not included within the term.102 Prosecutions for all crimes not infamous may be begun by criminal information.103 The protection of this provision of the Constitution applies to resident aliens as well as to citizens.104 It does not extend, however, to questions relative to the extradition of those accused of a crime in a foreign country,105 nor does it extend to proceedings for the expulsion or deportation of aliens who have come to the United States in violation of law.106 This provision does not apply to consular criminal courts created by the United States government;107 nor to the courts of the colonies;108 nor to the Indian tribal courts.108 Where this constitutional right belongs to an accused party he cannot waive it so as to give the court jurisdiction. 110 The fifth amendment in no way limits the extent of the jurisdiction of courts-martial.111 § 243. Double jeopardy. The provision, "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," applies to misdemeanors as well as to treason and felonies.112 The prohibition is not against double punishment, but against double jeopardy, and a person has been equally in jeopardy at the first trial whether it resulted in conviction or 106 United States v. Wong Lep Ken, 57 Fed. Rep. 207. 107 In re Rose, 44 Fed. Rep. 185, affirmed 140 U. S. 459. 108 Hawaii v. Mankichi, 190 U. S. 211. For a discussion of this case see Chapter XIV. 109 Talton v. Mayes, 163 U. S. 382. 110 Ex parte McClusky, 40 Fed. Rep. 14. 111 Rumkle v. United States, 19 Ct. Cl. 411. 112 Berkowitz v. United States, 93 Fed. Rep. 452. acquittal.113 A person has been in jeopardy if a jury has been sworn to try him under a valid indictment,114 or if there has been an acquittal on the merits of the case under an invalid indictment.115 Where a judgment of conviction against the accused is set aside, he is not held to have been in jeopardy.118 117 A judgment either of conviction or acquittal in a State court. will not be a bar to proceedings in the Federal courts, where the crime is such that both State and Federal courts have jurisdiction. Nor where a party is subject both to civil and military law, will a judgment in either court be a bar to proceedings in the other.118 The punishment, by expulsion or otherwise, by a legislative body of one of its members has no effect on criminal proceedings. 119 A former conviction or acquittal must be pleaded.120 The former trial to be a defense, must have been for the same identical offense; the criterion of the identity of crimes is whether the facts charged in one indictment would have been sufficient to justify a conviction and judgment upon the other, by the court in which the trial first was had.122 It is well settled that under the common law the prosecution has no right of appeal in criminal cases,123 and such an appeal constituted double jeopardy.12 124 President Roosevelt, in a message to Congress at its last session, urged upon that body the need of altering the present law, and of conferring upon the United States the right of appeal in 113 United States v. Ball, 163 U. S. 662. 114 Kepner v. United States, 196 U. S. 100, 128. 113 United States v. Ball, 163 U. S. 662. 118 Id. See also Robertson V. Baldwin, 165 U. S. 281. 117 United States v. Barnhart, 22 Fed. Rep. 290. 118 United States v. Clark, 3. Fed. Rep. 715. 119 United States v. Houston, 4 Cranch (C. C.), 26 Fed. Cases, No. 15, 398. 120 United States v. Wilson, 7 Peters, 159. 121 United States v. Cashiel, 1 Hughes, 552, 25 Fed. Cases, No. 14, 744. 122 United States v. Houston, 4 Cranch (C. C.), 261, 26 Fed. Cases, No. 15, 398. 123 United States v. Sanges, 144 U. S. 310. 124 Kepner v. United States, 195 U. S. 100. See Chapter XIII. ** 126 127 criminal cases on questions of law. In answer to this advice the House of Representatives passed a bill allowing the United States "the same right of review by writ of error that is given to the defendant, including the right to a bill of exceptions: provided that * a verdict in favor of the defendant shall not be set aside."125 This bill did not reach a vote in the Senate. § 244. Incriminating evidence. No person can be compelled in a criminal case to furnish evidence against himself. This constitutional guarantee, like the preceding one, is merely the reaffirmation of a well-established common law principle." A broad and liberal construction must be given this right.1 In Counselman v. Hitchcock the court held that the privilege extended to a proceeding before a grand jury; that a witness is protected by the constitutional provision from being compelled to disclose the circumstances of his offenses, or the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained or made effectual for his conviction; and that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him can have the effect of supplanting the privilege conferred by the Constitution of the United States. In Brown v. Walker128 the court said: "The clause should be construed, as it was doubtless designed, to effect a practical and beneficent purpose, not necessarily to protect witnesses against every possible detriment which might happen to them from their testimony, nor to unduly impede, hinder or obstruct the administration of criminal justice." "It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it, so as to furnish matter for that conviction. In such a case the witness must himself judge what his 125 See Congressional Record, first session 59th Congress, 5408. 128 United States v. Three Tons Coal, 6 Biss. 379, 28 Fed. Cases, No. 16, 515. 127 142 U. S. 547. 128 161 U. S. 601. answer will be, and if he say, on oath, that he cannot answer without accusing himself, he cannot be compelled to answer."129 This protection is not limited to such persons as are themselves on trial on a criminal charge, but extends to all persons who may be summoned as witnesses in the trial. In fact, at the time of the adoption of the fifth amendment, defendants themselves were excluded from testifying.130 It is fatal to an indictment that the defendant was called to testify before the grand jury in the matter without being informed that his own conduct was under investigation.131 Suits for penalties and forfeitures under criminal charges are within the scope of this provision;132 but proceedings in rem for the forfeiture of property under the revenue laws are not criminal proceedings.133 In Brown v. Walker134 the Supreme Court held the following provision of the Interstate Commerce Commission Act to be Constitutional: "No person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the commission, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding." If a person has given testimony in a case he must submit to proper cross-examination on the subjects135 on which he has testified. If any person waives this privilege and testifies falsely |