United States v. Gill

• Court: U.S. District Court — District of New Mexico
• Writing for the Court: PHILLIPS, Circuit
• Citation: United States v. Gill, 55 F.2d 399 (D. N.M. 1931)
• Decision Date: 28 December 1931
• Docket Number: No. 6164.,6164.
• Parties: UNITED STATES v. GILL.

55 F.2d 399 (1931)

UNITED STATES v. GILL.

No. 6164.

District Court, D. New Mexico.

December 28, 1931.

Hugh B. Woodward, U. S. Atty., of Albuquerque, N. M.

George R. Craig, Harry A. Wilson, and Claud S. Mann, all of Albuquerque, N. M., for defendant.

PHILLIPS, Circuit Judge.

On April 10, 1931, defendant was arrested on a charge of violating the National Motor Vehicle Theft Act (18 USCA § 408). The following day he was arraigned before a United States Commissioner, entered a plea of guilty, and was bound over to await the action of the grand jury. Being unable to make bond, he was confined in the Bernalillo County jail at Albuquerque, New Mexico. On June 16, 1931, he filed a motion herein in which he set up the foregoing facts and prayed that the court authorize the filing of an information charging him with the violation of such act, and permit him to enter a plea of guilty thereto. This motion stated that defendant had been fully advised of his legal rights.

I entered an order authorizing the filing of the information. Thereupon the United States Attorney filed an information which properly charged the offense, and set up the motion and order of the court. Attached thereto was a written waiver of indictment and consent to the filing of such information duly signed by defendant. Defendant appeared in open court, and personally and by his counsel expressly waived indictment by a grand jury, and asked the court to accept his plea of guilty to the information. After satisfying myself that defendant had been fully advised as to his rights by competent counsel and had consented to the filing of such information, I directed the plea to be entered, and sentenced defendant to serve a term of three years in an appropriate penal institution, suspended the execution of such sentence, and placed defendant on probation.

On June 18, 1931, at my request defendant filed herein his motion to vacate and set aside such sentence.

Two questions are presented:

First. May a defendant waive the provision of the Fifth Amendment 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," and consent to be charged by information for an offense above the grade of misdemeanor?

Second. Assuming that such provision of the Fifth Amendment creates a personal right or privilege which may be waived, has the United States Attorney authority to charge a person with the commission of a felony by an information?

I. May an accused waive indictment for a capital or otherwise infamous crime? All of the provisions of the Constitution for the protection of persons accused of crimes, except the above quoted provision of the Fifth Amendment, have been held personal rights or privileges which may be waived.

The provision against self-incrimination, "Nor shall be compelled in any Criminal Case to be a witness against himself" (Amendment 5), is a personal privilege which may be waived. Powers v. United States, 223 U. S. 303, 32 S. Ct. 281, 56 L. Ed. 448; Reagan v. United States, 157 U. S. 301, 15 S. Ct. 610, 39 L. Ed. 709; Ex parte Tracy (D. C. N. Y.) 177 F. 532; Levin v. United States (C. C. A. 9) 5 F. (2d) 598; Thompson v. United States (C. C. A. 7) 10 F.(2d) 781; Optner v. United States (C. C. A. 6) 13 F.(2d) 11; Diggs v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Brown v. Walker, 161 U. S. 591, 16 S. Ct. 644, 40 L. Ed. 819; United States v. Commissioner of Immigration, 273 U. S. 103, 47 S. Ct. 302, 71 L. Ed. 560.

The provision for a speedy trial, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial" (Amendment 6), is a personal right which may be waived. Daniels v. United States (C. C. A. 9) 17 F.(2d) 339; Phillips v. United States (C. C. A. 8) 201 F. 259; Worthington v. United States (C. C. A. 7) 1 F.(2d) 154.

The right of an accused to be confronted with witnesses, "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him" (Amendment 6), is a personal right which may be waived. Diaz v. United States, 223 U. S. 442, 32 S. Ct. 250, 56 L. Ed. 500, Ann. Cas. 1913C, 1138; Grove v. United States (C. C. A. 4) 3 F.(2d) 965; Fukunaga v. Territory of Hawaii (C. C. A. 9) 33 F.(2d) 396.

The provision against double jeopardy, "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb" (Amendment 5), is a personal privilege which may be waived. Brady v. United States (C. C. A. 8) 24 F. (2d) 399; Levin v. United States, supra; Trono v. United States, 199 U. S. 521, 26 S. Ct. 121, 50 L. Ed. 292, 4 Ann. Cas. 773.

The provision relating to unreasonable searches and seizures, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" (Amendment 4), is a personal right which may be waived. Waxman v. United States (C. C. A. 9) 12 F.(2d) 775; Giacolone v. United States (C. C. A. 9) 13 F.(2d) 110; Cantrell v. United States (C. C. A. 5) 15 F.(2d) 953; Windsor v. United States (C. C. A. 6) 286 F. 51; Poetter v. United States (C. C. A. 9) 31 F. (2d) 438.

The right to be represented by counsel, "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence" (Amendment 6), is a personal right which may be waived. Schick v. United States, 195 U. S. 65, 72, 24 S. Ct. 826, 49 L. Ed. 99, 1 Ann. Cas. 585; Patton v. United States, 281 U. S. 276, 310, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263.

The right to trial by jury in criminal cases, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury" (article 3, § 2), and, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury" (Amendment 6), is a personal right or privilege which may be waived. Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263.

Stephen in his "History of the Criminal Law of England," vol. I, p. 244, says: "Since the Norman Conquest there have been three modes of trial in criminal cases, namely, trial by ordeal, trial by battle, and trial by jury; and there have been also three modes of accusation, namely, appeal or accusation by a private person, indictment or accusation by a grand jury, and informations which are accusations either by the Attorney-General or by the Master of the Crown Office."

The grand jury is an ancient institution of the common law. Bl. Com., Book IV, p. 302; Charge to Grand Jury, 2 Sawy. 667, Fed. Cas. No. 18,255.

Blackstone, in Book IV, p. 309, says: "This mode of prosecution by information filed on record by the king's attorney-general, or by his coroner or master of the crown office in the court of the king's bench, is as ancient as the common law itself." See also "History of the Criminal Law of England" (Stephen) vol. I, pp. 294, 297.

At common law prosecution by information was limited to misdemeanors. Bl. Com., Book IV, p. 310; 31 C. J. § 11, p. 564; Joyce on Indictments (2d Ed.) § 7; United States v. Shepard, Fed. Cas. No. 16,273; Weeks v. United States (C. C. A. 2) 216 F. 292, 295, L. R. A. 1915B, 651, Ann. Cas. 1917C, 524.

The authorities are not in accord on the question of whether an accused may waive indictment where the offense charged is above the grade of misdemeanor.

In Ex parte Bain, 121 U. S. 1, 7 S. Ct. 781, 787, 30 L. Ed. 849, the court was called upon to determine whether an indictment, after it had been returned and filed with the court, could be amended by an order of the court. In holding that such amendment could not be made, the court said: "We are of the opinion that an indictment found by a grand jury was indispensable to the power of the court to try the petitioner for the crime with which he was charged."

In Ex parte McClusky (C. C. Ark.) 40 F. 71, 74, the court said that the provision of the Fifth Amendment 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,' provides for a requisite to jurisdiction," and that "a party cannot waive a constitutional right when its effect is to give a court jurisdiction."

In Cancemi v. People, 18 N. Y. 128, the court held that a defendant could not waive the right of trial by jury in a capital case.

In Low v. United States (C. C. A. 6) 169 F. 86, 92, the court held that neither the accused nor the United States Attorney could waive trial of a crime by jury. It said: "The jurisdiction of the court to pronounce a judgment or conviction for crime, when there has been a plea of not guilty, rests upon the foundation of a verdict by a jury."

In Dickinson v. United States (C. C. A. 1) 159 F. 801, the court held that a person accused of an infamous crime could not waive his right to be tried by a jury of twelve persons and consent to be tried by, and abide the verdict of a jury of ten persons.

In People ex rel. Battista v. Christian, 249 N. Y. 314, 164 N. E. 111, 61 A. L. R. 793, the court held that the constitutional requirement that "No person shall be held to answer for a capital or otherwise infamous crime * * * unless on presentment or indictment of a grand jury" is jurisdictional and cannot be waived.

In the case of Edwards v. State, 45 N. J. Law, 419, the court had under consideration whether an accused could waive indictment and trial by jury pursuant to an act of the New Jersey legislature entitled, "An act to facilitate judicial proceedings in the county of Essex," Pamphlet Laws 1867, p. 463. Paragraph 9, art. 1, of the New Jersey Constitution, provides that, "No person shall be held to answer for a criminal offence unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases cognizable by justices of the peace, or arising in the army or...