competent, must be set aside.16 Thus, an indictment which is based wholly on the evidence of the accused, who, in violation of his constitutional rights and privileges was compelled to testify against himself before the grand jury," or on the knowledge of a grand juror who was not sworn as a witness,18 or partly on evidence given by the wife of the accused,1o which is incompetent because confidential or privileged, or upon the evidence of a physician of communications by his patient to him which came under the rule of statutory privilege,20 is invalid.21

An indictment cannot stand unless it is based on evidence which, at some time or another, has been considered by the grand jury which finds the indictment. The grand jury may, without re-examining witnesses, find one indictment as a substitute for another previously found.22 But an indictment which has been quashed, or on which a nol. pros. has been entered, is not alone evidence enough to support a new indictment.23

As a general rule, a grand jury should hear no other evidence than that adduced by the prosecution, but they are sworn "to in

16 Sparrenberger v. State, 53 Ala. 481, 486, 25 Am. 643; People v. Restenblatt, 1 Abb. Pr. (N. Y.) 268, 272; United States v. Farrington, 5 Fed. 343; State v. Logan, 1 Nev. 509, 516; United States v. Coolidge, 2 Gall. (U. S.) 364, 25 Fed. Cas. 14858; Commonwealth v. Knapp, 9 Pick. (Mass.) 496, 498, 20 Am. Dec. 491; People v. Briggs, 60 How. Pr. (N. Y.) 17, 30; Royce v. Territory, 5 Okla. 61, 47 Pac. 1083; State v. Grady, 84 Mo. 220, aff'g 12 Mo. App. 361.

17 State v. Froiseth, 16 Minn. 296, 298; United States v. Edgerton, 80 Fed. 374; post, § 27.

18 State v. Cain, 1 Hawks. (N. Car.) 352, 353. Cf. Commonwealth v. Hayden, 163 Mass. 453, 455, 40 N. E. 846, 47 Am. St. 468, 28 L. R. A. 318n.

19 People v. Briggs, 60 How. Pr. (N. Y.) 17; Commonwealth v. Woodcroft, 17 Pa. Co. Ct. 554.

20 People v. Sellick, 4 N. Y. Cr. Rep. 329.

2 In United States v. Coolidge, 2 Gall. (U. S.) 364, 25 Fed. Cas. 14858, the court said, setting aside an indictment based upon the evidence of a witness not sworn: "The grand jury is the great inquest between the government and the citizen. It is of the highest importance that this institution be preserved in its purity and no citizen tried until he has been regularly accused. Every indictment is subject to the control of the court, and this indictment having been found irregularly, and upon the mere unsworn statement of a witness, which was not evidence, a cassetur must be entered."

22 Commonwealth V. Woods, 10 Gray (Mass.) 477, 483; Creek v. State, 24 Ind. 151, 156.

quire and true presentment make;" and if, in course of their inquiries, they have reason to believe that there is other evidence not presented and within reach, which would qualify or explain away the charge under investigation, it would be their duty to order such evidence to be produced.24

§ 27. The accused as a witness before the grand jury.-Under the universal constitutional provisions that no one shall be compelled in any criminal matter to be a witness against himself, an indictment should be quashed when the defendant was compelled by subpoena to testify before the grand jury, and the indictment is founded on his testimony alone.25 The fact that the accused voluntarily testifies before the grand jury affords no ground for setting aside the indictment. It must be shown, however, not only that his appearance was voluntary, but that he confessed his wrong-doing voluntarily and not inadvertently, or under the compulsion or constraint of his situation, or under the obligation of an oath.26

The question arises, ought an indictment to be quashed on motion merely because the accused, being at that time not charged with any crime, happened to be one of several witnesses summoned and examined by the grand jury in investigating a crime?

If any person summoned fails to claim his privilege against answering incriminating or implicating questions, the mere fact that he has testified is not enough to invalidate an indictment against him, though based solely upon his testimony.27 Nor will the fact that a suspected person has been required to give evidence in another matter be sufficient to set aside an indictment on the ground that he was compelled to testify against himself, unless

"United States v. Kilpatrick, 16 Abb. N. Cas. (N. Y.) 96; State v. Fed. 765. Donelon, 45 La. Ann. 744, 12 So. 922, 923.

State v. Froiseth, 16 Minn. 296, 298; Boone v. People, 148 Ill. 440, 449, 36 N. E. 99; People v. Haines, I N. Y. S. 55; United States v. Edgerton, 80 Fed. 374. This rule is applicable, though the accused was cautioned that he was under no obligation to answer and was not sworn. People v. Singer, 5 N. Y. Cr. 1-4, 18

20 People v. King, 28 Cal. 265, 272; United States v. Brown, I Sawy. (U. S.) 531, 537, 24 Fed. Cas. 14671.

27 United States v. Brown, 1 Sawy. (U. S.) 531, 24 Fed. Cas. 14671; Boone v. People, 148 Ill. 440, 36 N. E. 99.

it affirmatively appears that he was indicted wholly or in part on his own admissions.28

28. Sufficiency of evidence before the grand jury.-The early judges, prompted, doubtless, by a too great subserviency to the Crown, and by a disgraceful zeal for securing the punishment of those who were obnoxious to the royal power, did not require that the evidence presented to the grand jurors on which an indictment was based should be either copious or convincing. "If there be probable evidence, they ought to find the bill," says Hale,” “because it is but an accusation, and the trial follows." The better and more modern rule, as stated by Blackstone, is that "a grand jury ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes, and not to rest satisfied with remote probabilities." In other words, the grand jury ought not to indict unless they are convinced that the accused is guilty and that the evidence before them is sufficient, if unexplained and uncontradicted, to convict him.31

§ 29. Contempt by witnesses before the grand jury.-The grand jury is a part of the court. Its session is a session of the court, and witnesses when summoned before it are amenable to punishment for contempt if they refuse to appear or on appearing refuse to testify.32 The grand jurors may direct their own officer to take

S. Car. 356; State v. Fasset, 16 Conn. 458, 473; In re Grand Jury, 62 Fed. 840. And this is the statutory rule in many states, but the ancient rule that the court will not revise the judgment of the grand jury for the purpose of determining whether or not the finding was on sufficient evidence was upheld in United States v. Reed, 2 Blatchf. (U. S.) 435, 27 Fed. Cas. 16134; Raney v. Commonwealth, 2 Ky Law 62; State v. Lewis, 38 La. Ann. 680. Note on sufficiency of evidence before grand jury to sustain indictment, 28 L. R. A. 324.

32 Taylor, In re, 8 Misc. (N. Y.) 159, 28 N. Y. S. 500, 509; Commonwealth v. Crans, 3 Pa. L. J. 442, 453

the witness before the judge in order that he may be punished if he remains contumacious, and the judicial sentence on the contempt, whether fine or imprisonment, is final and conclusive.33

§ 30. The indictment is not evidence.-The indictment is read in the statement of the case of the prosecution. It does not when thus read have the weight and significance which attach to it if read in evidence. Its true and sole use is to charge the crime, and to inform the accused of the offense alleged against him. The indictment is not evidence and should not be read to or by the jurors either in the court-room or elsewhere. If the court shall permit this, and the indictment is thus placed in evidence without any limitation or any explanation of the purpose of its introduction, the jury may take it as an intimation from the court that the mere fact of the accused having been indicted is evidence, and that the indictment must be considered in determining his guilt.3*

*Taylor, In re, 8 Misc. (N. Y.) 159, 28 N. Y. S. 500, 504; Lockwood v. State, Ind. 161; Ward v. State, 2 Mo. 120, 22 Am. Dec. 449; People v. Kelly, 24 N. Y. 74; People v. Fancher, 2 Hun (N. Y.) 226. A witness is not in contempt who refuses to answer

self-incriminating questions before the grand jury. State v. Lewis, 96 Iowa 286, 65 N. W. 295.

34 State v. Hart, 66 Mo. 208, 215; State v. Desroches, 48 La. Ann. 428, 19 So. 250.

§ 31. Proving the substance of the offense-What variances are material. The strict technical rules formerly governing this subject have been greatly relaxed, if not altogether abrogated, by statutory enactment or by the liberal spirit of the modern courts. of criminal jurisdiction. In determining whether a variance is material, the question to be decided is, does the indictment so far fully and correctly inform the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense? If this be not so, then the variance is material, and the state, having failed to prove the crime, in substance as it is alleged, the acquittal of the accused should be directed.

Whether a greater strictness of proof is required in criminal than is necessary in civil proceedings in favor of life and liberty is a question upon which the cases differ. But though the general rule is that the crime which is laid in the indictment must be

1

1Harris v. People, 64 N. Y. 148, 153, 154. Variance in proof of substance of charge, Elliott Ev., § 2714; variance in prosecution for gambling, Elliott Ev., § 3007.

United States V. Porter, 3 Day (Conn.) 283, 286. Contra, 2 Russ. on Cr., $ 588; Rosc. Cr. Ev. 73; United States v. Britton, 2 Mason (U. S.) 464, 468, 24 Fed. Cas. 14650;

2 Beech's Case, I Leach Cr. L. 158; Walker v. State, 91 Ala. 76, 9 So. 87.