Argument for Plaintiff in Error.

223. U. S.

Mr. S. H. Sutherland, with whom Mr. R. A. Ayers was on the brief, for plaintiff in error:

There can be no grand jury for a United States court unless ordered by the judge, and the only method of summoning a grand jury is by venire facias. Rev. Stat., §§ 803, 810; 4 Fed. Stat. Ann. 742-744; United States v. Antz, 16 Fed. Rep. 119; United States v. Reed, 2 Blatchf. 435.

The grand jury which returned this bill of indictment was never sworn, and therefore could not return a true bill of indictment. Under Amendment V no court of the United States has authority to try a person without an indictment returned by a grand jury for an offense of this kind. Ex parte Bain, 121 U. S. 1; Rowe v. State, 20 So. Rep. (Ala.) 459; 2 Sawy. C. C. 667; Bishop Criminal Procedure, § 1357; Barker v. State, 39 Arkansas, 180; Lyman v. People, 7 Brad. (Ill.) 345; Foster v. State, 31 Mississippi, 421; Abram v. State, 25 Mississippi, 589; Stokes v. State, 24 Mississippi, 621; 4 Bl. Com. 302; 1 Chit. Crim. L. 178; Cooley's Const. L. 318.

It takes both impaneling and swearing to constitute a grand jury. Whatever is essential in a criminal proceeding to deprive a person of his liberty must appear of record and nothing is taken by intendment or implication. Ball's Case, 140 U. S. 118; Hopt v. Utah, 110 U. S. 574; United States v. Crane, 162 U. S. 625; Barnes' Case, 92 Virginia, 722; Jones' Case, 87 Virginia, 63; Spurgeon's Case, 86 Virginia, 652; Cawood's Case, 2 Virginia Cases, 527; Rich v. People, 1 Tex. App. 206.

No inference that they were sworn can be drawn from the word impaneled. Layman v. People, 7 brad. (Ill. App.) 345; Zapf v. State, 35 Florida, 210; 7 So. Rep. 225; see also State v. Potter, 18 Connecticut, 166; Porter v. People, 7 How. Pr. (N. Y.) 441.

This right cannot be waived by a plea of not guilty like the waiver to the qualification of a grand juror. United

223 U.S.

Argument for Plaintiff in Error.

States v. Gale, 109 U. S. 65; Rodriguez v. United States, 198 U. S. 156; Watson's Case, 87 Virginia, 612; Curtis' Case, 87 Virginia, 589; Abram v. State, 25 Mississippi, 589.

The indictment was defective and the fourth and sixth counts should have been stricken out. Wh. Cr. Pl. and Pr., § 239; United States v. Cook, 17 Wall. 168.

The jury that tried this case was not summoned as required by law. A jury must be selected and summoned as required by law and it is indispensable that it should so appear. 1 Bish. Crim. Pro., § 1357; Johnson v. State, 47 Alabama, 62; Jones v. State, 5 Alabama, 656; State v. Rollins, 2 Fost, 528; Warren v. State, 1 Green, 106; Harriman v. State, 2 Id. 207.

Colly's testimony should have been rejected or stricken out. Fitzpatrick v. United States, 178 U. S. 304; Bram v. United States, 168 U. S. 532; Brown v. Walker, 161 U. S. 561; Counselman v. Hitchcock, 142 U. S. 562; United States v. Ball, 81 Fed. Rep. 837; Cullen's Case, 24 Gratt. 721; Cooley's Const. Lim., 6th ed. 385; McKelvey on Ev. 299; Rex v. Garbett, Dennison's Crown Cases, 236; 2 Car. & K. 474; 1 Greenl. on Ev., 16th ed., §§ 216, 254a, 4696.

The admission of Powers before the commissioner was not such an admission as amounted to a judicial confession; it is essential it be made of the free will of the party, and with full and perfect knowledge of the nature and consequences of the confession. 1 Greenl. on Ev., § 216.

A party has no right to cross-examine any witness, except as to facts and circumstances connected with the matter stated in his direct examination. If he wishes to examine him as to other matters, he must do so by making the witness his own and calling him in the subsequent progress of the cause. Phila. & Trenton Ry. Co. v. Stimpson, 14 Pet. 448; Miller v. Miller, 92 Virginia, 510; 1 Greenl. on Ev. 445.

The defendant could stop at any place he chose and the cross-examination could only go to facts and circumstances VOL. CCXXIII-20

Argument for the United States.

223 U. S.

connected with the direct examination. Cooley's Const. Lim., 6th ed., 384-386. His constitutional privilege protects him from cross-examination on any point not touched in his examination in chief. State v. Lurch, 12 Oregon, 99; 6 Pac. Rep. 408; State v. Bacon, 13 Oregon, 143; 8 Pac. Rep. 393; 57 Am. Rep. 8; State v. Saunders, 14 Oregon, 300; 12 Pac. Rep. 441; State v. Gallo, 18 Oregon, 435; 23 Pac. Rep. 264.

If the defendant after going on the stand in his own behalf refused to answer any question on cross-examination he could not be punished for it. The remedy in this case for the Government would be to strike out his evidence in chief.

Powers going on the stand before the commissioner and giving testimony did not waive the constitutional privilege as to such testimony at a later stage. Cullen's Case, 24 Gratt. (Va.) 624. For this evidence was clearly extorted by compulsion through fear of imprisonment.

The waiver of the privilege must always be made understandingly and willingly, and generally after being fully warned by the court. Cullen v. Commonwealth, 24 Gratt. 624; 1 Greenl. on Ev., § 451.

The confession by the defendant was made under such circumstances that it was not admissible evidence even had it been made out of court. Bram v. United States, supra; United States v. Ball, 81 Fed. Rep. 837.

The guaranty must have a broad and liberal construction in favor of the party and rights which it was intended to secure. Counselman v. Hitchcock, supra; Boyd v. United States, 116 U. S. 616; Wilson v. United States, 221 U. S. 361; § 860, Rev. Stat.

Mr. Assistant Attorney General Denison, with whom Mr. Loring C. Christie was on the brief, for the United States:

The omission of the commissioner to advise the de

223 U. S.

Argument for the United States.

fendant of his privilege was not a breach of the privilege.

Furthermore, this defendant in fact resisted giving the answer and did so only under compulsion. There was nothing to show that he was not fully cognizant of his rights. Wilson v. United States, 162 U. S. 613, 623.

The warning as to the privilege is not essential. Wigmore on Evidence, § 2269.

Unless defendant's privilege was violated at the preliminary hearing, it was not violated at all, for Colly's quotation at the final trial, of what defendant had previously said, was no new breach of the privilege.

Defendant could not have been compelled to testify personally at his final trial, even though he voluntarily testified at the preliminary hearing.

The testimony below was that of Colly, not of the defendant. The defendant was not on the witness stand. No new pressure was exerted on him. If his former admissions were not improperly extorted by the commissioner, it was competent for Colly to testify as to them, just as to formal confessions. Wilson v. United States, 162 U. S. 613, 623; Hardy v. United States, 186 U. S. 224, 228; Moore v. Commonwealth, 29 Leigh (Va.), 701; State v. Branham, 13 S. Car. 389; State v. Melton, 120 N. Car. 591; Jackson v. State, 39 Oh. St. 37; Ortiz v. State, 30 Florida, 256; State v. Burrell, 27 Montana, 282; Wigmore, §§ 850, 852, 2276.

The admissions of the defendant were not improperly obtained at the preliminary hearing before the commissioner, because they fell within his waiver of privilege.

No objection on the score of relevancy was taken to this testimony either before the commissioner or on the trial; and, in the discretion of the court, it was plainly relevant, both as bearing on the defendant's explanation of his presence at the still particularly charged, Wood v. United States, 16 Pet. 342; Buckley v. United States, 4 How.

Argument for the United States.

223 U.S.

251, 259; Wigmore on Evidence, §§ 215, 242, 300, 371, and as bearing on his credibility, Tla-Koo-Yel-Lee v. United States, 167 U. S. 274; Johnson v. Jones, 1 Black, 209, 225; Langhorne v._Commonwealth, 76 Virginia, 1016; Wigmore on Evidence, § 988 (p. 1142), § 983 (p. 1114).

A defendant who takes the stand waives privilege as to questions along both these lines. Brown v. Walker, 161 U. S. 597; State v. Wentworth, 65 Maine, 234, 243; Guy v. State, 90 Maryland, 29; Lawrence v. State, 103 Maryland, 17; State v. Ober, 52 N. H. 459; R. R. Co. v. D'Aoust, 3 Ont. L. R. 653.

An accused taking the stand may be asked as to prior convictions. Norfolk v. Gaylord, 28 Connecticut, 309. Defendant was not privileged as to other acts of intercourse. State v. Klitzke, 46 Minnesota, 343.

Bastardy; defendant denying the intercourse charged, compelled to testify as to other intercourse. People v. Dupounce (Mich.), 94 N. W. Rep. 388.

The waiver extends to "any question, material to the case, which would in the case of any other witness be legitimate cross-examination," even though it involves some other crime; here applied to questions concerning the rape intercourse which led to the charge of bastardy. Connors v. People, 50 N. Y. 240.

Assault; questions as to former arrests, to affect credibility, allowed. People v. Casey, 72 N. Y. 393, 398.

Questions as to former assaults, to affect credibility, allowed. People v. Tice, 131 N. Y. 651, 655.

Approving Connors v. People; defendant not privileged as to questions affecting his credibility. People v. Webster, 139 N. Y. 73, 84; People v. Tice followed; People v. Rozelle, 78 California, 84.

Defendant may be cross-examined by the same rule as other witnesses, except that the court has no discretion. People v. Meyer, 75 California, 383.

Privilege waived as to cross-examination to character.