H An information was held to be defective when it set out the effect of a material document without reciting any of the contents of the same.27 A prayer for any specified penalty or for judgment is not essential to the validity of an information.28 The authorities are in conflict as to whether an information must be supported by an affidavit showing probable cause for the prosecution, arising from facts within the knowledge of the affiant. The better opinion is that such an affidavit is not required,29 unless the information is used to support an arrest.80 It has been held, however, that an affidavit is indispensable in every case 31 unless the information is supported by the depositions of witnesses taken upon a preliminary examination,32 or affidavits upon which a warrant of arrest against the accused was previously issued, which may be sufficient.38 An affidavit upon information and belief is sufficient.34 It has been held that such an affidavit cannot be taken before a notary public,35 and suggested that when taken before a notary, a County Clerk's certificate of his appointment is required.36 An objection to the omission of an affidavit or to an irregularity in the verification must be taken specially.37 It cannot be raised for 27 U. S. v. Watson, 17 Fed. 145. 28 Standard Oil Co. v. Missouri, 224 U. S. 270, 285, 56 L. ed. 760, 769; Creekmore v. U. S., C. C. A., 237 Fed. 743. 29 U. S. v. Baumert, 179 Fed. 735, 742; Weeks v. U. S., C. C. A., 216 Fed. 292; Kelly v. U. S., C. C. A., 250 Fed. 947; State v. Smith, 114 La. 322, 38 So. Rep. 204; State v. Guglielmo, 46 Or. 250, 79 Pac. 577, 80 Pac. 103, 69 L. R. A. 466, 7 Ann. Cas. 976; Territory v. Cutinola, 4 N. M. (Gild.) 160, 14 Pac. 809. Contra Dictum in U. S. v. Morgan, 222 U. S. 274, 282, 32 Sup. Ct. 81, 82, 56 L. ed. 198. 30 Weeks v. U. S., C. C. A., 216 Fed. 292, 300; U. S. v. Polite, 35 Fed. 58; Johnston v. U. S., C. C. A., 87 Fed. 187, supra, § 485. 31 U. S. v. Tureaud, 20 Fed. 621; U. S. v. Polite, 35 Fed. 58; Lustig v. People, 18 Colo. 217, 32 Pac. 275; State v. Gleason, 32 Kan. 245, 4 Pac. 363; Myers v. People, 67 Ill. 503; Eichenlaub v. State, 36 Ohio St. 140; De Graff v. State, 2 Okl. Cr. 519, 103 Pac. 538; Thornberry v. State, 3 Tex. App. 36; State v. Boulter, 5 Wyo. 236, 39 Pac. 883. 32 U. S. v. Polite, 35 Fed. 58; U. S. v. Smith, 40 Fed. 755; U. S. v. Wells, 225 Fed. 320; U. S. v. Quaritius, 267 Fed. 227. See U. S. v. Morgan, 222 U. S. 274, 282, 32 Sup. Ct. 81, 56 L. ed. 198. 33 U. S. v. Polite, 35 Fed. 58. 34 Creekmore v. U. S., C. C. A., 237 Fed. 743. 35 U. S. v. Schallinger Produce Co., 220 Fed. 290. 36 U. S. v. Baumert, 179 Fed. 735. 37 Simpson v. U. S., 241 Fed. 841. the first time upon writ of error.38 It seems that one remedy, when an information is filed without the proper affidavits, is by a motion to quash it.39 Otherwise, proceedings upon information are similar to those upon indictment.40 § 495. Indictments. The Fifth Amendment ordains: That "no person shall be held to answer for a capital or otherwise infamous crime, unless on a 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." It has been said that this intends not merely an indictment in form, but a valid indictment found and presented according to the settled usage and established mode of procedure.2 An indictment is a written accusation of one or more persons of a crime or misdemeanor, which is preferred to and presented upon oath by a grand jury. The Revised Statutes regulate indictments in the courts of the United States as follows: No indictment shall be found, nor shall any presentment be made, without the concurrence of at least twelve grand jurors."4 The indictment need not allege that it was found by twelve grand jurors. It is the safer practice for the defendant to move to quash the indictment, when he objects to the same on the ground that twelve jurors did not concur therein. It has been held that, when the defendant pleads not guilty and goes to trial upon the 38 Ibid. 39 U. S. v. Polite, 35 Fed. 58. 40 Weeks v. U. S., C. C. A., 216 Fed. 292, 295; Blackstone's Commentaries, IV, 310. § 495. 1 See supra, § 381i; Burchett v. U. S., C. C. A., 194 Fed. 821. 2 Renigar v. U. S., C. C. A., 26 L.R.A. (N.S.) 683, 172 Fed. 646. 3 Blackstone, IV, 302; U. S. v. London, 176 Fed. 976. An indictment may be presented by a Grand Jury without a preliminary complaint or arrest. U. S. v. Baumert, 179 Fed. 735. It has been held that the submission of an indictment to a Grand Jury and the examination of witnesses before them in relation to the same, are no part of criminal proceedings against the accused within the meaning of the Fifth Amendment, U. S. v. Price, 163 Fed. 904; but that they and the indictment are included within the phrase, "Any suit or proceeding'' in § 299 of the Judicial Code, 36 St. at L. 1087. 4 U. S. R. S., § 1021. 5 U. S. v. Laws, 2 Lowell 115, Fed. Cas. No. 15,579. 6 Re Wilson, 140 U. S. 575, 35 L. ed. 513. Cf., § 515, infra. merits, the objection that twelve competent jurors did not concur in the indictment is waived." Such an objection cannot be raised collaterally by habeas corpus after conviction.8 "In prosecutions for perjury committed on examination before a naval general court-marshal, or for the subornation thereof, it shall be sufficient to set forth the offense charged on the defendant, without setting forth the authority by which the court was held, or the particular matters brought before, or intended to be brought before, said court."9 "When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated." 10 "No indictment found and presented by a grand jury in any District or Circuit or other Court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." 11 The description of a man by the initials of his christian name only is a defect in the indictment, of which advantage may be taken by a plea in abatement, unless the grand jury allege that his name is unknown to them otherwise than as set forth.12 A defendant may be described in the indictment under one name, or otherwise called another name, or alias another name.18 § 496. Captions of indictments. The caption of an indictment is a formal statement of the proceedings which describes the court where the indictment was found; the time and place of the finding thereof and the grand jurors who made the finding.1 It should also state that the grand jurors were sworn, 7 Ibid. 8 Ibid. 9 U. S. R. S., § 1023. 10 U. S. R. S., § 1024. 11 U. S. R. S., § 1025. 12 U. S. v. Upham, 43 Fed. 68; infra, § 516. A description of the defendants who are named as do ing business under a certain firm name and style does not prevent the indictment from being against such individuals. Schraubstadter v. U. S., C. C. A., 199 Fed. 568. 13 U. S. v. Polite, 35 Fed. 58.. $ 496. 1 Harrington v. U. S., C. C. A., 267 Fed. 97; 22 Cyc. 228. if such was the case. It is part of the record. It is not part of the indictment. It is different from the introduction to the indictment, which is a part thereof and may supplement the subsequent averments.5 Statements in the caption, when referred to in the body of the indictment may cure omissions but not unless there is such a reference.7 6 An amendment to the caption of an indictment is immaterial and not prejudicial.8 A clerical error in the caption of an indictment, such as a mistake in the year of the term when the record shows that the grand jury was in fact impanelel in the current year,9 a recital that the indictment was found in the Circuit Court of the United States for a specified district when in fact the grand jury was impaneled in the District Court of such district,10 an omission of anything to show the organization or composition of the court or who were present as constituent parties thereof, when the indictment was returned 11 and an omission of any express recital that twelve jurors concurred in the finding,12 may be disregarded. § 497. Body of indictment. An indictment must allege every essential element of the crime charged.1 2Burchett v. U. S., C. C. A., 194 Fed. 821. 3 Ibid. 4 Harrington v. U. S., C. C. A., 267 Fed. 97. 5 Ibid. 6 U. S. v. Boyden, 1 Lowell, 266, 24 Fed. Cas. No. 14,632; Commonwealth v. Edwards, 4 Gray (Mass.) 1; Commonwealth v. Fisher, 7 Gray (Mass.) 492; Anderson v. State, 104 Ind. 467, 4 N. E. 63, 5 N. E. 711; State v. Buralli (Nevada), 71 Pac. 532; 22 Cyc. 239. 7 U. S. v. Howard, 132 Fed. 325. 8 Gardes v. U. S., C. C. A., 87 Fed. 172. 9 U. S. v. Bornemann, 35 Fed. 824. 10 Ledbetter v. U. S., C. C. A., 108 Fed. 52. Fed. Prac. Vol. III-28 11 Caha v. U. S., 152 U. S. 211, 38 L. ed. 415. 12 Ibid. § 497. 1 U. S. v. Potter, 56 Fed. 918. The statute does not validate 1 It is an essential element of due process of law that a man shall have notice of the charge or claim against him, not only sufficient to inform him that some charge or claim has been made, but so distinct and specific as clearly to advise him what he has to meet, and to give him a fair and reasonable opportunity to prepare his defense. When a man is indicted, the presumption is that he is innocent, and consequently that he is ignorant of the facts of which the pleaded founds his charges. The sufficiency of an indictment must be tested on the presumption that the defendant has no knowledge of the facts therein charged against him. It is essential to the sufficiency of an plaint is made, is that some element of the offense is stated loosely and without technical accuracy. Dunbar v. U. S., 156 U. S. 185, 39 L. ed. 390. 2 U. S. v. Aviles, 222 Fed. 474; Fontana v. U. S., C. C. A., 262 Fed. 283. 3 Fontana v. U. S., C. C. A., 262 Fed. 283. 4 Ibid.; Miller v. U. S., C. C. A., 133 Fed. 337, 341; Maftzger v. U. S., C. C. A., 200 Fed. 494, 502; U. S. v. Britton, 107 U. S. 665, 669, 670, 2 Sup. Ct. 512, 27 L. ed. 520; U. S. v. Hess, 124 U. S. 483, 488, 8 Sup. Ct. 571, 31 L. ed. 516; Miller v. U. S., C. C. A., 133 Fed. 337, 341; Armour Pkg. Co. v. U. S., C. C. A., 153 Fed. 1, 16, 17; Etheredge v. U. S., C. C. A., 186 Fed. 434; Winters v. U. S., C. C. A., 201 Fed. 845, 848; Horn v. U. S., C. C. A., 182 Fed. 721, 722; Fontana v. U. S., C. C. A., 262 Fed. 283, 285. "Sometimes a statute, either through embracing a great many offenses of the same class, or for some other reason, is so general in its terms that the indictment must allege many particulars which the statute omits." U. S. v. Cruik shank, 92 U. S. 542, 557, 23 L. ed. 589. U. S. v. Potter, 56 Fed. 83, 88, 89, 90, 91, per Putnam, J.: "It is not sufficient that the pleader state merely the facts from which an offense can be implied, or only so many of the essential elements as in the ordinary experiences of life, or even in a statute, might suggest all the other elements; but he must state in terms everything necessary to constitute a criminal act. For example, as is well known, there are no common-law offenses against the Federal authority; so that theft on shipboard on the open seas would not be punishable without a statute providing for it. It would be sufficient that such a statute set out in terms that larceny on shipboard on the high seas should be punishable, with a certain penalty named; but every legal mind would at once admit that, although this would be sufficient in the stat-. ute, an indictment which alleged merely that the person accused committed larceny on board a certain ship, naming it, on the high seas, embracing the entire phraseology of the statute, but without details of the property stolen and of its own |