Ex Parte Bain
1887 U.S. LEXIS 2019, 7 S. Ct. 781, 121 U.S. 1 (1887)
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Rule of Law:
The Fifth Amendment mandates that no person shall be held to answer for an infamous crime unless on a grand jury indictment, and this indictment cannot be amended by the court or prosecutor without resubmission to the grand jury, even if the changes concern perceived surplusage.
Facts:
- George M. Bain, Jr. served as the cashier of the Exchange National Bank of Norfolk, Virginia.
- National banking associations were required by § 5211 of the Revised Statutes to submit reports to the Comptroller of the Currency not less than five times annually.
- On March 17, 1885, Bain, as cashier, along with directors Charles E. Jenkins, John B. Whitehead, and Orlando Windsor, submitted one such report.
- The submitted report contained numerous false statements.
- A grand jury indicted Bain and the directors, alleging the false statements were made with intent to deceive "the Comptroller of the Currency and the agent appointed to examine the affairs of said association."
Procedural Posture:
- A grand jury in the United States Circuit Court for the Eastern District of Virginia found an indictment against George M. Bain, Jr., and three directors under § 5209 of the Revised Statutes.
- The defendants initially entered pleas of not guilty, but were later granted leave to withdraw them.
- The defendants submitted a demurrer to the indictment, which the Circuit Court sustained.
- Upon motion by the United States, the Circuit Court ordered the indictment to be amended by striking out the words "the Comptroller of the Currency and."
- The Circuit Court granted a motion for severance of trial, ordering George M. Bain, Jr., to be tried separately.
- George M. Bain, Jr. subsequently entered a plea of not guilty to the amended indictment.
- A jury found Bain guilty.
- Bain filed motions for a new trial and in arrest of judgment, both of which the Circuit Court overruled.
- Bain was sentenced by the Circuit Court to five years imprisonment in the Albany penitentiary.
- Bain filed an application with the Supreme Court for a writ of habeas corpus to be released from the custody of Thomas W. Scott, United States Marshal.
- The Supreme Court directed a rule to show cause to be served upon the marshal.
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Issue:
Does a court's amendment of a grand jury indictment for an infamous crime, even by striking out words deemed surplusage, violate the Fifth Amendment's requirement that no person shall be held to answer for such a crime unless on a presentment or indictment of a grand jury?
Opinions:
Majority - Mr. Justice Miller
Yes, a court's amendment of a grand jury indictment, even when striking words deemed surplusage, violates the Fifth Amendment's grand jury clause and deprives the court of jurisdiction to try the defendant. The Court emphasized that the Fifth Amendment unequivocally guarantees 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." This constitutional safeguard means that a defendant can only be tried on the indictment exactly as it was found and presented by the grand jury. The Court noted that at common law, indictments were considered immutable and could not be amended, unlike 'informations' which were prosecutorial declarations. The argument that the stricken words, "the Comptroller of the Currency and," were mere surplusage and caused no harm was rejected. The Court reasoned that it could not presume what the grand jury would have done or how individual grand jurors might have been influenced by that specific language concerning the intent to deceive. To permit a court to alter the charging part of an indictment would "fritter away" the essential value of the grand jury as a check against governmental overreach and unfounded accusations. Citing precedents from state courts, such as Commonwealth v. Child and Commonwealth v. Mahar, the Court reaffirmed the principle that indictments cannot be amended, even with the defendant's consent. Because the prosecution was for an infamous crime requiring a grand jury indictment, the modified indictment was no longer the one presented by the grand jury, and thus the trial court lost its jurisdiction over the offense, rendering the subsequent conviction void.
Analysis:
This case profoundly reinforced the inviolability of a grand jury indictment under the Fifth Amendment, establishing that federal courts cannot substantively alter the charging instrument for infamous crimes without resubmitting it to the grand jury. The ruling underscores the grand jury's constitutional role as an independent body protecting individuals from arbitrary or politically motivated prosecutions, whose findings cannot be unilaterally modified by the judiciary or prosecution. Ex parte Bain set a strict precedent, limiting prosecutorial flexibility in amending indictments and ensuring that defendants face charges precisely as formulated by a grand jury. Its principles continue to guide federal criminal procedure regarding the scope of permissible amendments to indictments.
