Ex parte Bain, Jr

Citation7 S.Ct. 781,30 L.Ed. 849,121 U.S. 1
PartiesEx parte BAIN, Jr
Decision Date28 March 1887
CourtUnited States Supreme Court

[ Richard Walke, Leigh R. Page, and W. W. Crump, for petitioner.

Atty. Gen. Garland and John Catlett Gibson, for respondent.


This is an application to this court for a writ of habeas corpus to relieve the petitioner, George M. Bain, Jr., from the custody of Thomas W. Scott, United States marshal for the Eastern district of Virginia. The original petition set out with particularity proceedings in the circuit court of the United States for that district, in which the petitioner was convicted, under section 5209 of the Revised Statutes, of having made a false report or statement as cashier of the Exchange National Bank of Norfolk, Virginia. The petition has annexed to it as an exhibit all the proceedings, so far as they are necessary in the case, from the order for the impaneling of a grand jury to the final judgment of the court sentencing the prisoner to imprisonment for five years in the Albany penitentiary. Upon this application the court directed a rule to be served upon the marshal to show cause why the writ should not issue, to which that officer made the following return: 'Comes the said Scott, as marshal aforesaid, and states that there is no sufficient showing made by the said Bain that he is illegally held and confined in custody of respondent; but, on the contrary, his confinement is under the judgment and sentence of a court having competent jurisdiction to indict and try him, and he should not be released; and respondent prays the judgment of this court, that the rule entered herein against him be discharged, and the prayer of the petition be denied.' The attorney general of the United States and the district >>attorney for the Eastern district of Virginia appeared in opposition to the motion, and thus the merits of the case were fully presented upon the application for the issue of the writ.

Upon principles which may be considered to be well settled in this court, it can have no right to issue this writ as a means of reviewing the judgment of the circuit court simply upon the ground of error in its proceedings; but if it shall appear that the court had no jurisdiction to render the judgment which it gave, and under which the petitioner is held a prisoner, it is within the power and it will be the duty of this court to order his discharge. The jurisdiction of that court is denied in this case upon two principal grounds. The first of these relates to matters connected with the impaneling of the grand jury, and its competency to find the indictment under which the petitioner was convicted; the second refers to a change made in the indictment, after it was found, by striking out some words in it, and then proceeding to try the prisoner upon the indictment as thus changed. We will proceed to examine the latter ground first.

Section 5209 of the Revised Statutes of the United States, under which this indictment is found, reads as follows: 'Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, draws and order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section,—shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.' Section 5211 requires every banking association organized under this act of congress to 'make to the comptroller of the currency not less than five reports during each year, verified by the oath or affirmation of the president or cashier of such association, and attested by the signatures of at least three of the directors.'

The indictment in this case, which contains but a single count, and is very long, sets out one of these reports, made on the seventeenth day of March, 1885, by the petitioner, as cashier, and Charles E. Jenkins, John B. Whitehead, and Orlando Windsor, as directors, of the Exchange National Bank of Norfolk, a national banking association. The indictment also points out numerous false statements in this report, which, it is alleged in the early part of it, were made 'with intent to injure and defraud the said association, and other companies, bodies politic and corporate, and individual persons to the jurors aforesaid unknown, and with the intent then and there to deceive any agent appointed by the comptroller of the currency to examine the affairs of said association.' Following this allegation come the specifications of the particulars in which the report is false, and the concluding part charges that the defendants, 'and each of them, did then and there well know and believe the said report and statement to be false to the extent and in the mode and manner above set forth; and that they, and each of them, made said false statement and report in manner and form as above set forth with intent to deceive the comptroller of the currency and the agent appointed to examine the affairs of said association, and to injure, deceive, and defraud the United States and said association and the depositors thereof, and other banks and national banking associations, and divers other persons and associations to the jurors aforesaid unknown, against the peace of the United States and their dignity, and contrary to the form of the statute of the said United States in such case made and provided.'

The defendants, having been permitted to withdraw the pleas of not guilty which they had entered, were then allowed to demur to the indictment, and, as it is important to be accurate in stating what was done about this demurrer, the transcript of the record on that subject is here inserted:

'United States v. Geo. M. Bain, Jr., John B. Whitehead, Orlando Windsor, and C. E. Jenkins.

'Indictment for making false entries, etc.

'This day came the parties, by their attorneys, pursuant to the adjournment order entered herein on the thirteenth day of November, 1886, ad thereupon the defendants, by their counsel, asked leave to withdraw the pleas heretofore entered; which being granted, they submitted their demurrer to the indictment, which, after argument, was sustained; and thereupon, on motion of the United States by counsel, the court orders that the indictment be amended by striking out the words 'the comptroller of the currency and,' therein contained. Thereupon, on motion of John B. Whitehead and C. E. Jenkins, by their counsel, for a severance of trial, it was ordered by the court that the case be so severed that George M. Bain, Jr., cashier and director, be tried separately from John B. Whitehead, Orlando Windsor, and C. E. Jenkins, directors. Thereupon the trial of George M. Bain, Jr., was taken up, and the said defendant, George M. Bain, Jr., entered his plea of not guilty.'

This was done December 13, 1886, 13 months after the presentment of the indictment by the grand jury, and probably long after it had been discharged. A verdict of guilty was found against Bain, a motion for a new trial was made and then a motion in arrest of judgment, both of which were overruled. The opinion of the circuit judge on the question which we are about to consider, delivered in overruling that motion, is found in the record.

The proposition, that in the courts of the United States any part of the body of an indictment can be amended after it has been found and presented by a grand jury, either by order of the court or on the request of the prosecuting attorney, without being resubmitted to them for their approval, is one requiring serious consideration. Whatever judicial precedents there may have been for such action in other courts, we are at once confronted with the fifth of those articles of amendment adopted early after the constitution itself was formed, and which were manifestly intended mainly for the security of personal rights. This article begins its enumeration of these rights by declaring 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 a class of cases of which this is not one. We are thus not left to the requirements of the common law in regard to the necessity of a grand jury or a trial jury, but there is the positive and restrictive language of the great fundamental instrument by which the national government is organized, that 'no person shall be held to answer' for such a crime, 'unless on a presentment or indictment of a grand jury.' But even at common law it is beyond question that in the English courts indictments could not be amended. The authorities upon this subject are numerous and unambiguous. In the great case of Rex v. Wilkes, 4 Burrow, 2527, tried in 1770, which attracted an immense deal of public attention, Wilkes, after being convicted by a jury of having printed and caused to be published a seditious and scandalous libel, was brought up before the court of king's bench, on a motion to set aside the verdict, on the ground that an amendment had been made in the language of the information on which he was tried. In the course of an opinion delivered by Lord MANSFIELD overruling the motion, he remarks, on this subject (page 2569) that 'there is a great difference between amending indictments...

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    • United States
    • U.S. District Court — District of South Carolina
    • 6 Julio 2007
    ...the crime was termed "Housebreaking." (Petition App. at 15-16.) While relying on an overruled Supreme Court case, Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), as well as South Carolina case law until 2005 when the rule changed (State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2......
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  • Indictment and information
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    ...failed to state an offense or is otherwise “defective.” United States v. Cotton , 535 U.S. 625, 630-31 (2002) (holding that Ex Parte Bain , 121 U.S. 1, 7 (1887), is overruled insofar as it held that defective indictment deprives court of jurisdiction). In so doing, the Supreme Court has cal......
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