Swayne, C. J.It is proper to remark that the authorities upon the general subject as to how far an indicted party may go behind the indictment, as regards the action of the grand jury, or the questions he may raise, or the objections he may make, or what objections, if sustained, are fatal, or what are otherwise, are in utter confusion upon the subject.[1]
I have examined a great number of them, and undoubtedly it may be said that they are in a state of thorough conflict. In a large number of well-considered adjudicated cases it is held that the same principles are to be applied. In this aspect of the subject, (i. e., to the finding of the indictment,) rules of the same strictness are applied as to the indictment itself—that everything relating to the subject is to be considered with the microscopic eye of the special demurrer. On the other hand, the authorities are equally numerous, and perhaps equally weighty, as to the sources from whence they come, to the effect that if there is a defective grand jury, and the indictment is found by such grand jury, all inquiry is shut out, and the party must go to trial, if the indictment itself be properly framed. The case of the United States v. Reed, 12 How. 361, lays down the proposition, and maintains it unanswerably, that, as regards ail criminal proceedings and jurisprudence in the courts of the United States, the courts of the United States are in no wise bound by state laws or state practice in anything. The particular point, however, under consideration and decided in that case, was that the rules of evidence did not apply, and are to be disregarded by the courts of the United States; i. e., the rules laid down by the state authorities.
It is provided, by the act of congress under which this grand jury was sworn, that certain proceedings were to be had touching the summoning of the grand jury. It is expressly provided by the act of congress that the clerk, and a gentleman of different politics and established character, etc., should put into the box certain names, and that there should be
- ↑ The authorities are collected in 1 Wharton’s Am. Crim. Law, §§ 463 and 472, et seq.—[Rep.
