United States v. Williams and Cox. the venires were accordingly issued on the same day; and the record further states, that the court met again on the 3d of November, 1857, pursuant to the last adjournment, when the venires were duly returned, and the persons drawn as grand jurors appeared and were duly impanelled and sworn, and the name of each grand juror, including that of the foreman who was duly appointed, was entered in the record of the case. These proceedings were regular in form, and they show beyond controversy that the jurors were summoned, impanelled, and sworn as a grand jury of the United States of America for the First Circuit and District of Maine, and in strict compliance with every requirement of the law in such cases made and provided. Act of Congress, July 20, 1840. Rev. Sts. of Maine, c. 135, §§ 10-20. And it also appears from the record, that the same jury, on the 5th of November, 1857, came into court and returned the indictment under consideration, with three others, as true bills against the prisoners at the bar, and the indictments were received by the court and duly filed and entered of record. None of these proceedings are called in question by the counsel of the prisoners, and yet it is contended in their behalf that the indictment itself is defective, because the words used therein, as descriptive of the jurors by whom it was found, are not the same as those employed in the fifth article of the amendments to the Federal Constitution. That article provides that no person shall be held to answer for a capital or otherwise infamous crime (with certain excepted cases) unless on a presentment or indictment of a grand jury; and the argument proceeds upon the ground that the words, "the jurors of the United States of America," which are the words employed in the indictment, are not equivalent to the words "grand jury," as contained in that provision; and it is insisted that the judgment should be arrested on account of that defect in the indictment. No other exception is taken to the indictment, except that the word "grand " is omitted before the word "jurors" at the commencement; and it is very properly admitted that the indictment is, in this particular, drawn in perfect accordance with the general practice and precedents in this district, and in all, save one, of the States included in the First Circuit. United States v. Williams and Cox. Nearly seventy years have elapsed since the judicial system of the United States was organized under the act of Congress, passed on the 24th of September, 1789; and throughout the entire period, since that time, the form of indictments in this district, so far as respects the particular in question, has been the same as the one adopted in this case. While Maine remained a part of Massachusetts, the District Court had jurisdiction in all cases cognizable in a Circuit Court, except appeals and writs of error, and was authorized to proceed therein in the same manner as a Circuit Court; and as early as the first day of June, 1790, the records of that court furnish an example of an indictment, for the crime of murder, in form like the one against the prisoners at the bar; and shortly after Maine was admitted as a State, the records of this court furnish another example to the same effect; and in the case first named, the prisoner was convicted, sentenced, and executed. We have examined these indictments, and are satisfied they were drawn from the precedents in general use in the State composing the district. They are in substance and legal effect the same as the precedents in general use in England immediately prior to the separation of the Colonies from the parent country; and in all formal particulars, including the one in question, they are in exact conformity to the most approved precedents of indictments, used in all the courts of the Commonwealth of Massachusetts, when the Judiciary Act was passed. A formal indictment, in criminal cases, is as necessary in the Federal courts as in the criminal jurisprudence of the States; and yet, when the Federal system of the United States was organized, the form of indictments was not prescribed; and there is nothing contained in any act of Congress, directly referring the matter to any standard, by which their precise requisites can be ascertained. That system was organized, as before remarked, under the act of 1789; and the eleventh section provides, among other things, that the Circuit Courts shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the District Courts, of the crimes and offences cognizable United States v. Williams and Cox. therein; and it is provided by the twenty-ninth section, that in cases punishable with death, the trial shall be had in the county where the offence was committed, or where that cannot be done without great inconvenience, twelve petit jurors shall be summoned from thence. And the section then goes on to declare the manner in which juries shall be formed in the Federal courts, and prescribes their qualifications; and we refer to those provisions as furnishing a clear and decisive indication as to the rule of decision, to which it was the intention of Congress to refer all matters connected with the accusation and trial of offenders in the Federal courts, not otherwise provided for in the Constitution and laws of the United States. The forming of juries is expressly referred to the practice in the State where the trial is had, and to the laws of the State as they existed at the time when the Judiciary Act was passed; and, by necessary implication, the qualification of jurors was to be determined by the same rule. Some of the provisions of the act of 1790, called the Crimes Act, furnish further confirmation of the proposition, that all matters respecting the accusation and trial of offenders not otherwise provided for were referred to the usages and laws of the States. That act prescribes the punishment, annexed to all the principal crimes against the United States, including treason, misprision of treason, murder, piracy, manslaughter, forgery, and perjury and subornation of perjury, and yet it is silent in regard to the form of indictments in every one of the crimes enumerated in the act, except the two last named; and the provision made in respect to them we think deserves a particular examination. It is contained in sections nineteen and twenty. Section nineteen provides, in effect, that it shall be sufficient, in an indictment for wilful and corrupt perjury, to set forth the substance of the offence, and by what court or before whom the oath or affirmation was taken, together with the proper averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, otherwise than as aforesaid, and without setting forth the commission or authority of the court or person before whom the perjury was committed; United States v. Williams and Cox. and the twentieth section contains a similar provision in regard to the rule of pleading in an indictment for subornation of perjury. These provisions were not the work of supererogation. On the contrary, they were obviously designed to subserve a useful purpose, and, beyond question, had the effect to modify some existing rule of decision, which would have continued to operate, if those provisions had not been enacted; and the inquiry is, What was that rule of decision which Congress intended to modify by those enactments? It could not have been any rule previously established by an act of Congress, as the national legislature had never before passed any act upon the subject; and certainly it could not have been the rule prevailing in England at that time, as her laws were then foreign laws, and of course they could have no effect in the Federal courts; and still it is obvious that it was the purpose of the act to modify some acknowledged and wellknown rule upon the subject, so as to relieve the prosecutor from the strictness in pleading which had previously been required in respect to those offences; and as there is no other rule which Congress could have had in view, we are led to conclude it must have been the common law prevailing in the jurisprudence of the States, and, if so, it affords strong ground for presumption that it was the intention of Congress to refer all the matters not otherwise provided for in respect to the accusation and trial of offenders to the same source for their solution. No other provision was made either in the act of 1789 or the Crimes Act of 1790, respecting the form of indictments, and none whatever in regard to the mode of conducting the trial after the jury are sworn, or the rules of evidence by which the guilt or innocence of persons accused of offences was to be ascertained or determined. Matters of such moment could not have been overlooked, for the reason that, without some regulation upon the subject, the system itself would have been imperfect and useless; and as there is no other standard by which they can be determined, it is clear that they must be referred to the laws of the States and the usages and customs of the courts at the time when the judicial system of the United States was organized. United States v. Reed et al., 12 How. 761. United States v. Williams and Cox. The motion in arrest of judgment is therefore overruled. Several propositions are embraced in the motion for a new trial, which we will now proceed to examine in the order in which they were presented by the counsel of the prisoners. Before doing so, however, we desire very briefly to notice a preliminary question, whether this court, under the Constitution and laws of the United States, possesses the power to grant a new trial in a capital case, as it would be useless to consider the merits of the motion, if there is no power conferred upon the court to grant it. It was held by Judge Story, in United States v. Gibert et al., 2 Sumn. 19, that a new trial could not be granted in a case very much like the present. That conclusion was based chiefly upon the ground that a second trial, though allowed at the request of the accused, would be a violation of that provision of the Constitution which provides in effect that no person "shall be subject for the same offence to be twice put in jeopardy of life and limb." Judge Davis dissented at the time, and held that the prohibition was intended for the security and benefit of the accused, and as such, that it might be waived and relinquished; and such is now the settled doctrine in all the Circuit Courts of the United States, and in every State court where the subject has been considered. Since the date of that decision, the point has been discussed in twenty of the States of this Union, and in every instance it has been held that a new trial may be granted on the application of the accused. Many of the cases are collected in The People v. Morrison, 1 Parker Cr. R. 624, to which we refer for a summary of the authorities upon the subject. They are also to be found in 2 Ben. & H. Leading Crim. Cases, 464, where the whole subject is very satisfactorily reviewed. New trials were unknown in the ancient common law, either in civil or criminal cases; and after the power of courts in this behalf was fully established in the time of Lord Mansfield, it was seldom and perhaps never exercised in criminal cases above the grade of misdemeanors. In later times, new trials are granted in England in felonies as well as in the lower offences, whenever the error is one which cannot be satisfactorily corrected in any other way. Regina v. Scaife et al., 2 Den. & Pea. 281. 2 |