tion apply only to the federal government, and that limitations intended as restrictions on state power make specific reference to the states. 228. Due Process of Law. The most important general limitation in both state and federal constitutions, applicable in criminal prosecutions as well as in civil suits, is the guaranty found in Amendment V, and in similar provisions in state constitutions, against "depriving any person of life, liberty, or property without due process of law." This restriction is specifically imposed on the states in Amendment XIV (see below, ch. xliv). It is difficult to describe in very definite way the essentials of due process of law in criminal cases. It was no doubt intended by the use of this language to preserve the common-law methods of procedure for the punishment of crimes, which involve usually some form of accusation on oath before a magistrate; the issuance by such magistrate of a warrant for the arrest of the accused; a preliminary investigation by the magistrate to determine whether the accused shall be held under bail or otherwise to appear before the grand jury; the hearing of evidence by the grand jury to determine whether there is such reasonable ground to believe the accused to be guilty as to justify the finding of an indictment against him; trial by jury on the charge made in the indictment; sentence by the court to a specified punishment on a verdict of guilty; and execution of the sentence imposed by the court. These are the usual steps as to crimes of a graver nature designated as felonies; but the preliminary proceedings with relation to the issuance of a warrant of arrest are not regarded as essential steps and may be omitted, for the charge can be made directly to the grand jury, or the grand jury can investigate on its own motion, and a warrant of arrest can be issued in the first instance by the court to which the indictment is returned. The essential steps, therefore, as to felonies are, so far as the protection of the rights of the accused may be concerned, indictment by grand jury, trial by jury, and sen $ 229] Presentment by Indictment. 317 tence on verdict of guilty. But in case of crimes involving a lesser degree of criminality, accusation by information may be substituted for indictment by grand jury, and indeed some petty crimes can be punished on trial before a magistrate without a jury. Therefore, it cannot be said that in all criminal cases indictment and jury trial are essential to due process of law. It may, however, safely be stated that the accused in any criminal proceeding is entitled to know what acts are charged as constituting the crime for which he is put on trial and to an investigation of these facts on evidence received in a judicial tribunal governed by the rules of evidence generally recognized by courts, and to be convicted only when the evidence establishes his guilt beyond a reasonable doubt. These, therefore, are the essential features of due process of law in criminal prosecutions. Certain specific restrictions with reference to each of these steps in the procedure must now be separately considered. 229. Presentment by Indictment. The first guaranty in Amendment V to the federal constitution is, "No person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia when in actual service in time of war or public danger." A distinction is here recognized between "presentment" and "indictment" which is of no practical value. Either must be the result of action by a grand jury. A presentment is made by a grand jury on its own motion, based on an investigation had at the instance of the members themselves and not upon charges submitted by a prosecuting officer, while an indictment is drawn by a prosecuting officer and approved by the grand jury after hearing the evidence tending to show that the person charged is guilty of the crime. named and described in the indictment; but the effect in each case is the same and the distinction need not be further referred to. At The grand jury at common law is a body of persons qualified to act in that capacity and selected in accordance with some established procedure and sworn to discharge fairly and impartially the duty of investigating crimes of which they have knowledge or which are brought to their attention in proper form, and to return indictments against those whom they have reasonable ground to believe to be guilty of such crimes. common law a grand jury may consist of not more than twentythree qualified persons, twelve of whom must concur in finding an indictment. In every case, therefore, in which indictment is required it is meant, unless otherwise provided, that such an indictment must have been concurred in by twelve grand jurors. In states having constitutional provisions in this respect similar to that found in Amendment V, the same rule is applicable; but by express constitutional provision a grand jury of less than twelve may be authorized, for there is no restriction in the federal constitution on the act of states in this respect. Indeed it is now provided in some state constitutions that the accused may be put on trial without indictment, some other form of accusation being substituted, and this is no violation of the provisions of the federal constitution. In other words, indictment by grand jury is not essential to due process of law, and is not required in the state courts unless either expressly or by implication the state constitution so provides (Hurtado v. California). 230. Capital or otherwise Infamous Crimes. In states where by constitutional provision indictment is still essential, it is usually required in cases of treason and felony; but Amendment V uses somewhat different language and specifies the crimes triable only on indictment in the federal courts as those which are capital or otherwise infamous. Capital crimes are those for which punishment by death may be imposed; and infamous crimes are those subjecting the guilty person to an infamous punishment. The infamy which is referred to in this description is infamy in the punishment which may be imposed, and not infamy in the nature of the crime it $ 232] Twice in Jeopardy 319 self. An infamous punishment not capital is punishment by imprisonment in a penitentiary, as distinct from imprisonment in a county jail (Mackin v. United States). Crimes which are not capital or otherwise infamous may be prosecuted in the federal court on indictment, but in such cases indictment is not essential under the constitutional provision. There must, however, be some recognized form of accusation, and the usual form in such cases is called an information, which is a complaint made under oath and presented by the prosecuting officer to the court, charging the crime in substantially the same manner which is usual in an indictment. 231. Courts-Martial. The exception found in Amendment V, with reference to cases arising in the land and naval forces or in the militia, applies to proceedings in courts-martial for violation of the military law. (See above, § 114.) Such courts proceed in accordance with the provisions made by Congress under the authority to establish rules for the government and regulation of the land and naval forces and for governing such part of the militia as may be employed in the services of the United States (Const. Art. I, § 8, ¶¶ 14, 16). The ordinary constitutional limitations are not applicable to such courts. 232. Twice in Jeopardy. The clause found in Amendment V of the federal constitution and in the constitutions of the various states, that no person shall be subject for the same offence to be twice put in jeopardy of life or limb, is merely a partial statement of a common-law principle that no one shall be twice tried for the same offence. As found in the federal constitution the clause is of extremely limited application, and strictly interpreted relates only to crimes which may be punished by death, for maiming as a form of punishment has never been recognized in this country. But similar provisions in the state constitutions go to the full extent of prohibiting a second trial for an offence for which the same person has previously been put on trial. But if the ac aside for some The usual application of this rule is in cases where the accused has been acquitted by a jury; and such acquittal is conclusive, not only as to the crime charged, but as to any other crime involving the same acts which were depended upon or sought to be established in the first trial for the purpose of securing a conviction. No matter how unwarrantable under the evidence may be the action of the jury, and no matter how erroneous may have been the procedure in the court, the verdict of the jury acquitting the accused is final. cused is convicted and the conviction is set error of the court or misconduct of the jury, the accused who has procured the hostile verdict to be thus set aside may be again put on trial, although, as held by some courts, he cannot be again tried for any higher crime or higher degree of crime charged than that for which he was convicted, the conviction of the lesser crime or lower degree being deemed an acquittal of any higher crime or higher degree of crime (Kring v. Missouri). The constitutional provision also prevents a second trial for a crime which involves any criminal act for which the accused has been convicted on a previous trial. It is not practicable to discuss in full the doctrine of second jeopardy as applied to cases where a prosecution has been duly commenced, and for some reason has never proceeded to the verdict of a jury. It is sufficient to say that if the defendant by escaping from custody or otherwise has prevented the trial of the case, or if by reason of sickness of the judge or inability of the jury to agree no verdict has been reached, the accused may be again put on trial. 233. Self-Crimination. The provision in Amendment V that no person shall be compelled in any criminal case to be a witness against himself, which is found also in many, though not all, of the state constitutions, is an announcement of a general rule of evidence long recognized in common-law courts as applicable in civil as well as criminal cases. The object of this rule of evidence is to protect the witness against being compelled in any judicial pro |