Chapter LXXIII: Section 4: The United States shall guarantee to every State in (6)

On March 18, 1949 Judge Bok sustained the demurrers and entered judgment in favor of the defendants. The opinion which accompanies his judgment pivots in part on the clear and present danger rule. It reads: "The only clear and present danger to be prevented by section 524 that will satisfy both the Constitution and the current customs of our era is the imminence of the commission of criminal behavior resulting from the reading of a book. Publication alone can have no such automatic effect."

This obviously overlooks the primary purpose of governmental interference with the distribution of "obscene literature," namely to protect immature minds from contamination. Dealing with this point Judge Bok protests against putting "the entire reading public at the mercy of the adolescent mind." Should, on the other hand, the adolescent mind be put at the mercy of the uninhibited reading tastes of an elderly federal judge?

[118] 310 U.S. 88 (1940).

[119] 310 U.S. 106 (1940).

[120] Thornhill _v._ Alabama, 310 U.S. 88, 102, 105 (1940).

[121] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941); _See also_ Hotel and Restaurant Employees' Alliance _v._ Board, 315 U.S. 437 (1942).

[122] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287, 293 (1941).

[123] American Federation of Labor _v._ Swing, 312 U.S. 321 (1941); Bakery and Pastry Drivers _v._ Wohl, 315 U.S. 769 (1942); Cafeteria Employees Union _v._ Gus Angelos, 320 U.S. 293 (1943).

[124] Teamsters Union _v._ Hanke, 339 U.S. 470, 474 (1950).

[125] Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949).

[126] Building Service Union _v._ Gazzam, 339 U.S. 532 (1950).

[127] Hughes _v._ Superior Court, 339 U.S. 460 (1950).

[128] Carpenters Union _v._ Ritter's Cafe, 315 U.S. 722, 728 (1942).

[129] Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949).

[130] Ibid. 501, 502, citing Fox _v._ Washington, 236 U.S. 273, 277, which predates any suggestion of the clear and present danger formula. _See_ above. [Transcriber's Note: Reference is to Section CONTRASTING OPERATION OF THE COMMON LAW RULE, above.]

[131] Lincoln Union _v._ Northwestern Co., 335 U.S. 525 (1949); A.F. of L. _v._ American Sash Co., ibid., 538.

[132] Auto Workers _v._ Wis. Board, 336 U.S. 245 (1949). In Teamsters Union _v._ Hanke, 339 U.S. 470 (1950), injunctions by State courts against picketing of a self-employer's place of business to compel him to adopt a union shop were sustained.

[133] Thomas _v._ Collins, 323 U.S. 516 (1945).

[134] Ibid. 566.

[135] Patterson _v._ Colorado, 205 U.S. 454 (1907). _Cf._ Toledo Newspaper Co. _v._ United States, 247 U.S. 402 (1918) in which the Court affirmed a judgment imposing a fine for contempt of court on an editor who had criticized the action of a federal judge in a pending case. The majority held that such conviction did not violate the First Amendment. Justices Holmes and Brandeis dissented on the ground that the proceedings did not come within the applicable federal statute, but did not discuss the constitutional issue. This decision was overruled in Nye _v._ United States, 313 U.S. 33 (1941).

[136] 314 U.S. 252 (1941).

[137] Ibid. 271.

[138] Ibid. 283, 284.

[139] 328 U.S. 331 (1946).

[140] Ibid. 350.

[141] Ibid. 349.

[142] 331 U.S. 367 (1947).

[143] Ibid. 376.

[144] Davis _v._ Massachusetts, 107 U.S. 43 (1897).

[145] Ibid. 47.

[146] 307 U.S. 496, 515, 516 (1939).

[147] 334 U.S. 558 (1948).

[148] Kovacs _v._ Cooper, 336 U.S. 77 (1949).

[149] Public Utilities Commission _v._ Pollak, 343 U.S. 451 (1952). The decision overruled the United States Court of Appeals for the District of Columbia. Here Judge Edgerton, speaking for himself and two associates, said: "Exploitation of this audience through assault on the unavertible sense of hearing is a new phenomenon. It raises 'issues that were not implied in the means of communication known or contemplated by Franklin and Jefferson and Madison.' But the Bill of Rights, as appellants say in their brief, can keep up with anything an advertising man or an electronics engineer can think of. * * *

"If Transit obliged its passengers to read what it liked or get off the car, invasion of their freedom would be obvious. Transit obliges them to hear what it likes or get off the car. Freedom of attention, which forced listening destroys, is a part of liberty essential to individuals and to society. The Supreme Court has said that the constitutional guarantee of liberty 'embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties * * *.' One who is subjected to forced listening is not free in the enjoyment of all his faculties." He quoted with approval Justice Reed's statement in Kovacs _v._ Cooper, "The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners."--191 F. 2d 450, 456 (1951).

[150] Lovell _v._ Griffin, 303 U.S. 444 (1938); Schneider _v._ State, 308 U.S. 147 (1939); Largent _v._ Texas, 318 U.S. 418 (1943).

[151] Schneider _v._ State, 308 U.S. 147 (1930); Jamison _v._ Texas, 318 U.S. 413 (1943).

[152] Marsh _v._ Alabama, 326 U.S. 501 (1946).

[153] Tucker _v._ Texas, 326 U.S. 517 (1946).

[154] Valentine _v._ Chrestensen, 316 U.S. 52 (1942).

[155] Martin _v._ Struthers, 319 U.S. 141 (1943).

[156] Breard _v._ Alexandria, 341 U.S. 622 (1951).

[157] 221 U.S. 418, 439 (1911). _See_ below. [Transcriber's Note: Reference is to Section FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND PRESS, above.]

[158] Near _v._ Minnesota, 283 U.S. 697 (1931).

[159] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941); Carpenters Union _v._ Ritter's Cafe, 315 U.S. 722 (1942).

[160] 315 U.S. 568 (1942).

[161] 319 U.S. 624 (1943).

[162] 315 U.S. 568, 571, 572 (1942).

[163] 319 U.S. 624, 633 (1943).

[164] Lovell _v._ Griffin, 303 U.S. 444, 451 (1938).

[165] Chaplinsky _v._ New Hampshire, 315 U.S. 568 (1942); Cox _v._ New Hampshire, 312 U.S. 569 (1941).

[166] Lovell _v._ Griffin, 303 U.S. 444 (1938); Hague _v._ C.I.O., 307 U.S. 496, 516 (1939); Schneider _v._ State, 308 U.S. 147 (1939); Cantwell _v._ Connecticut, 310 U.S. 296 (1940); Largent _v._ Texas, 318 U.S. 418 (1943); Thomas _v._ Collins, 323 U.S. 516, 538 (1945); Saia _v._ New York, 334 U.S. 558 (1948).

[167] Radio Comm'n _v._ Nelson Bros. Co., 289 U.S. 266 (1933); Communications Comm'n. _v._ N.B.C., 319 U.S. 239 (1943).

[168] Mutual Film Corp. _v._ Ohio Indus'l Comm., 236 U.S. 230, 244 (1915).

[169] 334 U.S. 131 (1948).

[170] Ibid. 166.

[171] Joseph Burstyn, Inc. _v._ Wilson, 343 U.S. 495 (1952).

[172] Ibid. 502. Justice Frankfurter, concurring for himself and Justices Jackson and Burton, elaborates upon the vagueness of connotation of the New York Court's use of the word "sacrilegious." _See_ Appendix to his opinion, Ibid. 533-40. Justice Reed, in his concurring opinion, suggests that the Court will now have the duty of examining "the facts of the refusal of a license in each case to determine whether the principles of the First Amendment have been honored." Ibid. 506-507.

[173] 314 U.S. 252 (1941).

[174] Ibid. 263.

[175] 323 U.S. 516 (1945).

[176] Ibid. 529-530.

[177] Palko _v._ Connecticut, 302 U.S. 319, 327 (1937).

[178] United States _v._ Carolene Products Co., 304 U.S. 144, 152, fn. 4 (1938).

[179] 328 U.S. 331 (1946).

[180] Ibid. 353.

[181] Kovacs _v._ Cooper, 336 U.S. 77, 88 (1949).

[182] Ibid. 90.

[183] Brinegar _v._ United States, 338 U.S. 160, 180 (1949).

[184] Terminiello _v._ Chicago, 337 U.S. 1, 4 (1949).

[185] Kunz _v._ New York, 340 U.S. 290, 302.

[186] Ibid. 309. In a footnote Justice Jackson points to the peculiarly protected position of the Court today, thanks to ch. 479, Public Law 250, 81st Congress, approved August 18, 1949. This makes it unlawful to "make any harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds." Sec. 5. It also forbids display of any "flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement." Sec. 6. Moreover, it authorizes the marshal to "prescribe such regulations approved by the Chief Justice of the United States, as may be deemed necessary for the adequate protection of the Supreme Court Building and grounds and of persons and property therein, and for the maintenance of suitable grounds." Sec. 7. Violation of these provisions or regulations is an offense punishable by fine and imprisonment.

[187] Grosjean _v._ American Press Co., 297 U.S. 233, 246 (1936).

[188] Ibid. 250.

[189] Ibid.

[190] Murdock _v._ Pennsylvania, 319 U.S. 105 (1943); Jones _v._ Opelika, 319 U.S. 103 (1943); Follett _v._ McCormick, 321 U.S. 573 (1944).

[191] Associated Press _v._ United States, 326 U.S. 1 (1945). A newspaper publisher who enjoyed a substantial monopoly of mass distribution of news was enjoined from refusing advertising from persons advertising over a competing radio station. The Court sustained the injunction against the objection that it violated freedom of the press, holding that appellant was guilty of attempting to monopolize interstate commerce. Lorain Journal _v._ United States, 342 U.S. 143 (1951).

[192] Associated Press _v._ Labor Board, 301 U.S. 103, 133 (1937).

[193] Okla. Press Pub. Co. _v._ Walling, 327 U.S. 186 (1946).

[194] 221 U.S. 418 (1911).

[195] Ibid. 430.

[196] 314 U.S. 469 (1941).

[197] Ibid: 477.

[198] Ibid. 478.

[199] United States _v._ C.I.O., 335 U.S. 106 (1948).

[200] 106 U.S. 371 (1882).

[201] 19 Stat. 143 Sec. 6 (1876).

[202] 53 Stat. 1147 (1939).

[203] United Public Workers _v._ Mitchell, 330 U.S. 75 (1947).

[204] Oklahoma _v._ United States Civil Serv. Comm., 330 U.S. 127 (1947).

[205] Schenck _v._ United States, 249 U.S. 47 (1919); Frohwerk _v._ United States, 249 U.S. 204 (1919); Debs _v._ United States, 249 U.S. 211 (1919); Abrams _v._ United States, 250 U.S. 616 (1919); Schaefer _v._ United States, 251 U.S. 466 (1919); Pierce _v._ United States, 252 U.S. 239 (1920); _cf._ Gilbert _v._ Minnesota 254 U.S. 325 (1920); Hartzel _v._. United States, 322 U.S. 680 (1944).

[206] 341 U.S. 494 (1951).

[207] 61 Stat. 136, 146 (1947); "Taft-Hartley Act."

[208] 339 U.S. 382 (1950).

[209] 339 U.S. 846 (1950). Answering in 1882 the objection of a pensioner to the terms of an act under which he received his pension from the Government, the Court answered: "Pensions are the bounties of the government, which Congress has the right to give, withhold, distribute or recall, at its discretion." United States _v._ Teller, 107 U.S. 64, 68. Can it be doubted that Congress has power to repeal at any time the protection which present legislation affords organized labor?

[210] 339 U.S. 382, 394, 397 (1950).

[211] Dennis _v._ United States, 341 U.S. 494 (1951).

[212] 54 Stat. 670 (1940).

[213] 341 U.S. 494, 509.

[214] Ibid. 509.

[215] Ibid. 510; citing 183 F. (2d) at 212.

[216] 341 U.S. 494, 510-511.

[217] Ibid. 513.

[218] 341 U.S. 494, 519-520.

[219] Ibid. 525.

[220] Ibid. 527-528.

[221] 341 U.S. 494, 539.

[222] 268 U.S. 652 (1925).

[223] 341 U.S. 494, 541.

[224] Ibid. 542.

[225] Ibid. 551-552.

[226] 341 U.S. 494, 567-569.

[227] Ibid. 572.

[228] 341 U.S. 494, 586; citing 274 U.S. 357, 376-377.

[229] Anti-Fascist Committee _v._ McGrath, 341 U.S. 123 (1951) heads the list.

[230] 341 U.S. 494 (1951).

[231] 339 U.S. 382; ibid. 846 (1950).

[232] 341 U.S. 716 (1951).

[233] 342 U.S. 485 (1952).

[234] New York Laws, 1949, c. 360.

[235] 342 U.S. 485, 493. Justice Frankfurter dissented on jurisdictional grounds. Justices Black and Douglas attacked the merits of the decision. Said the latter: "What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place of inquiry. A 'party line'--as dangerous as the 'party line' of the Communists--lays hold. It is the 'party line' of the orthodox view, of the conventional thought, of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the classroom. The teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipe line for safe and sound information. A deadening dogma takes the place of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin." Ibid. 510.

[236] 343 U.S. 250 (1952).

[237] Ibid. 258.

[238] Ibid, 259-263 _passim_. Justice Douglas, dissenting, urged the "absolute" character of freedom of speech and deplored recent cases in which, he asserted, the Court "has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate 'within reasonable length' the right of free speech. This to me is an ominous and alarming trend." Ibid. 285. Justices Black, Reed and Jackson also dissented. Justice Jackson's dissenting opinion is characteristically paradoxical: "An Illinois Act, construed by its Supreme Court to be a 'group libel' statute, has been used to punish criminally the author and distributor of an obnoxious leaflet attacking the Negro race. He answers that, as applied, the Act denies a liberty secured to him by the Due Process Clause of the Fourteenth Amendment. What is the liberty which that clause underwrites? The spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this Amendment underlies this, as it has many another, division of the Court. All agree that the Fourteenth amendment does confine the power of the State to make printed words criminal. Whence we are to derive metes and bounds of the state power is a subject to the confusion of which, I regret to say, I have contributed--comforted in the acknowledgment, however, by recalling that this Amendment is so enigmatic and abstruse that judges more experienced than I have had to reverse themselves as to its effect on state power. The thesis now tendered in dissent is that the 'liberty' which the Due Process Clause of the Fourteenth Amendment protects against denial by the States is the literal and identical 'freedom of speech or of the press' which the First Amendment forbids only Congress to abridge. The history of criminal libel in America convinces me that the Fourteenth Amendment did not 'incorporate' the First, that the powers of Congress and of the States over this subject are not of the same dimensions, and that because Congress probably could not enact this law it does not follow that the States may not." Ibid. 287-288. Proceeding from this position, Justice Jackson is able, none the less, to dissent from the Court's judgment. _Cf._ Chief Justice Stone's position in United States _v._ Carolene Products Co., 304 U.S. 144, at 152-53, note 4 (1938).

[239] 20 Stat. 355, 358 (1879); 48 Stat. 928 (1934).

[240] 327 U.S. 146 (1946).

[241] Ibid. 158. Justice Frankfurter, while concurring, apparently thought that the question of Congress's power in the premises was not involved. Ibid. 159-160. On this broader question, _see_ p. 269. (The Postal Clause).

[242] 333 U.S. 178 (1948); Public Clearing House _v._ Coyne, 194 U.S. 497 (1904).

[243] Here it is recited in part: "That if we, our justiciary, our bailiffs, or any of our officers, shall in any circumstances have failed in the performance of them toward any person, or shall have broken through any of these articles of peace and security, and the offence be notified to four barons chosen out of the five-and-twenty before mentioned, the said four barons shall repair to us, or our justiciary, if we are out of the realm, and laying open the grievance, shall petition to have it redressed without delay."

[244] 12 Encyclopedia of the Social Sciences, 98 ff, "Petition, Right of" (New York, 1934).

[245] United States _v._ Cruikshank, 92 U.S. 542, 552 (1876) reflects this older view.

[246] De Jonge _v._ Oregon, 299 U.S. 353, 364, 365 (1937). _See also_ Herndon _v._ Lowry, 301 U.S. 242 (1937).

[247] For the details of Adams' famous fight on "The Gag Rule," _see_ Andrew C. McLaughlin, A Constitutional History of the United States, pp. 478-481, Appleton-Century-Crofts, Inc., New York (1935).

[248] Rules and Manual United States House of Representatives (1949), Eighty-first Congress, by Lewis Deschler, Parliamentarian, United States Government Printing Office, Washington (1949), pp. 430-433.

[249] United States _v._ Baltzer, Report of the Attorney General, 1918, p. 48.

[250] 92 U.S. 542 (1876).

[251] 16 Stat. 141 (1870).

[252] 92 U.S. 542, 552-553 (1876). At a later point in its opinion the Court used the following language: "Every republican government is in duty bound to protect all its citizens in the enjoyment of an equality of right. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty." Ibid. 555. These words have reference, quite clearly, to counts of the indictment alleging acts of the conspirators denying "equal protection of the laws" "to persons of color," Congress's power to protect which is derived from Amendment XIV and is confined as the Court says, to protection against State acts. The above quoted words have, however, caused confusion. _See_ pp. 1176-1177.

[253] Hague _v._ C.I.O., 307 U.S. 496 (1939).

[254] 49 Stat. 449 (1935).

[255] 307 U.S. 496, 515-516 (1939).

[256] Ibid. 525.

[257] "As to the American Civil Liberties Union, which is a corporation, it cannot be said to be deprived of the civil rights of freedom of speech and of assembly, for the liberty guaranteed by the due process clause is the liberty of natural, not artificial, persons. Northwestern Nat. L. Ins. Co. _v._ Riggs, 203 U.S. 243, 255; Western Turf Asso. _v._ Greenberg, 204 U.S. 359, 363;" 307 U.S. 496, 527 (1939). _See also_ ibid. 514.

[258] 167 U.S. 43 (1897). This case was treated above, at p. 784.

[259] 314 U.S. 252 (1941).

[260] 323 U.S. 516 (1945).

[261] Auto Workers _v._ Wis. Board, 336 U.S. 245 (1949).

[262] Collins _v._ Hardyman, 341 U.S. 651 (1951); 17 Stat. 13, 8 U.S.C. Sec. 47 (3).

[263] 341 U.S. 651, 663 (1951).

[264] 2 U.S.C. Sec. 261-270. _See also:_ General Interim Report of the House Select Committee on Lobbying Activities, Eighty-First Congress, Second Session, created pursuant to H. Res. 298, October 20, 1950, United States Government Printing Office, Washington (1950): _see also_ 9 Encyclopedia of the Social Sciences 567, "Lobbying."

[265] National Association of Manufacturers _v._ McGrath, 103 F. Supp. 510 (1952). Upon review, the Supreme Court vacated this judgment as moot.--334 U.S. 804, 807.

[266] Rumely _v._ United States, 197 F. 2d 166, 174-175 (1952).

AMENDMENT 2

BEARING ARMS

Amendment 2

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The protection afforded by this amendment prevents infringement by Congress of the right to bear arms for a lawful purpose, but does not apply to such infringement by private citizens. For this reason an indictment under the Enforcement Act of 1870,[1] charging a conspiracy to prevent Negroes from bearing arms for lawful purposes was held defective.[2] A State statute which forbids bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, does not abridge the right of the people to keep and bear arms.[3] In the absence of evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length has some reasonable relationship to the preservation or efficiency of a well regulated militia, the Court refused to hold invalid a provision in the National Firearms Act[4] against the transportation of unregistered shotguns in interstate commerce.[5]

Notes

[1] 16 Stat. 140 (1870).

[2] United States _v._ Cruikshank, 92 U.S. 542, 553 (1876).

[3] Presser _v._ Illinois, 116 U.S. 252, 265 (1886).

[4] 48 Stat. 1236 (1934).

[5] United States _v._ Miller, 307 U.S. 174 (1939).

AMENDMENT 3

QUARTERING SOLDIERS

Amendment 3

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

"This amendment seems to have been thought necessary. It does not appear to have been the subject of judicial exposition; and it is so thoroughly in accord with all our ideas, that further comment is unnecessary."[1]

Notes

[1] Miller, Samuel F., The Constitution (1893), page 646.

AMENDMENT 4

SEARCHES AND SEIZURES

Page Coverage of the amendment 823 Necessity, sufficiency and effect of warrants 825 Records, reports and subpoenas 825 Search and seizure incidental to arrest 828 Search of vehicles 830 Use of evidence 830

SEARCHES AND SEIZURES

Amendment 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Coverage of the Amendment

This amendment denounces only such searches and seizures as are "unreasonable," and is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner to conserve public interests as well as the rights of individuals.[1] It applies only to governmental action, not to the unlawful acts of individuals in which the government has no part.[2] It has no reference to civil proceedings for the recovery of debts; consequently, a distress warrant issued by the Solicitor of the Treasury under an act of Congress is not forbidden, though issued without support of an oath or affirmation.[3] But the amendment is applicable to search warrants issued under any statute, including revenue and tariff laws.[4]

Security "in their persons, houses, papers and effects" is assured to the people by this article. Not only the search of a dwelling, but also of a place of business,[5] a garage,[6] or a vehicle,[7] is limited by its provisions. But open fields are not covered by the term "house"; they may be searched without a warrant.[8] A sealed letter deposited in the mails may not be opened by the postal authorities without the sanction of a magistrate.[9] The subpoena of private papers is subject to its test of reasonableness.[10] Retention for use as evidence of a letter voluntarily written by a prisoner, which, without threat or coercion, came into the possession of prison officials under the practice and discipline of the institution, is not prohibited.[11] Where officers demand admission to private premises in the name of the law, their subsequent explorations are searches within the meaning of the Constitution, even though the occupant opens the door to admit them.[12] A peremptory demand by federal officers that a person suspected of crime open a locked room and hand over ration coupons kept there was held not to amount to a seizure in view of the fact that the coupons were government property which the custodian was under a duty to surrender.[13] Neither wiretapping,[14] nor the use of a detectaphone to listen to a conversation in an adjoining room,[15] nor interrogation under oath by a government official of a person lawfully in confinement[16] is within the purview of this article. Nor does it apply to statements made by an accused on his own premises to an "undercover agent" whose identity was not suspected and who had on his person a radio transmitter which communicated the statements to another agent outside the building.[17] Said Justice Jackson for the Court: "Petitioner relies on cases relating to the more common and clearly distinguishable problems raised where tangible property is unlawfully seized. Such unlawful seizure may violate the Fourth Amendment, even though the entry itself was by subterfuge or fraud rather than force. But such decisions are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods."[18] But narcotics seized in a hotel room during absence of the owner, in the course of a search without warrant for either search or arrest, were not adducible as evidence against the owner, who, however, was not entitled to have them returned since they were legal contraband.[19]

Necessity, Sufficiency and Effect of Warrants

A warrant of commitment by a justice of the peace must state a good cause certain and be supported by oath.[20] A notary public is not authorized to administer oaths in federal criminal proceedings; hence a warrant based on affidavits verified before a notary is invalid.[21] A warrant of the Senate for attachment of a person who ignored a subpoena from a Senate committee is supported by oath within the requirement of this amendment when based upon the committee's report of the facts of the contumacy, made on the committee's own knowledge and having the sanction of the oath of office of its members.[22]

A belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search without a warrant.[23] A warrant issued upon an information stating only that "affiant has good reason to believe and does believe" that defendant has contraband materials in his possession is clearly bad under the Fourth Amendment.[24] It is enough, however, if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that the offense charged had been committed.[25]

The requirement of the Fourth Amendment that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken nothing is left to the discretion of the officer executing the warrant.[26] Private papers of no pecuniary value, in which the sole interest of the Federal Government is their value as evidence against the owner in a contemplated criminal prosecution, may not be taken from the owner's house or office under a search warrant.[27]

Records, Reports and Subpoenas

Since the common law did not countenance compulsory self incrimination, many years passed before the Supreme Court was called upon to interpret the constitutional provisions bearing upon the privilege against such testimonial compulsion. Not until Boyd _v._ United States[28] did it have to meet the issue; there, pursuant to an act of Congress, a court had issued an order in a proceeding for the forfeiture of goods for fraudulent nonpayment of customs duties, requiring the claimant to produce in court his invoices covering the goods, on pain of having the allegation taken as confessed against him. The order and the statute which authorized it were held unconstitutional in a notable opinion by Justice Bradley, as follows: "Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is [forbidden] * * * In this regard the Fourth and Fifth Amendments run almost into each other."[29] Thus the case established three propositions of far-reaching significance: (1) that a compulsory production of the private papers of the owner in such a suit was a search and seizure within the meaning of the Fourth Amendment;[30] (2) that in substance such seizure compelled him to be a witness against himself in violation of Amendment V,[31] and (3) that, because it was a violation of the Fifth Amendment, it was also an _unreasonable_ search and seizure under the Fourth.[32]

Only natural persons can resist the subpoena of private papers on the ground of self incrimination.[33] Even an individual cannot refuse to produce records which are in his custody on the plea that they might incriminate the owner or himself where the documents belong to a corporation,[34] or to a labor union.[35] A bankrupt can be compelled to turn over records which are part of his estate.[36] Papers already in the custody of a United States court in consequence of their having been used by the owner himself as evidence on another proceeding may be used before a grand jury as a basis for an indictment for perjury.[37] A corporation may challenge an order for the production of records if it is unreasonable on grounds other than self incrimination, i.e., if it is too sweeping,[38] if the information sought is not relevant to any lawful inquiry,[39] or if it represents "a fishing expedition" in quest of evidence of crime.[40] In Oklahoma Press Pub. Co. _v._ Walling,[41] the question of the protection afforded by the Constitution against the subpoena of corporate records was thoroughly reviewed. Justice Rutledge summarized the Court's views in the following words: "* * * the Fifth Amendment affords no protection by virtue of the self incrimination provision, whether for the corporation or for its officers; and the Fourth, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable. * * * It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command. * * * The requirement of 'probable cause, supported by oath or affirmation,' literally applicable in the case of a warrant is satisfied, in that of an order for production, by the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry. Beyond this the requirement of reasonableness, including particularity in 'describing the place to be searched, and the persons or things to be seized,' also literally applicable to warrant, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry."[42]

As a means of enforcing a valid statute, the Government may require any person subject thereto "to keep a record showing whether he has in fact complied with it,"[43] and to submit that record to inspection by government officers.[44] It may also compel the filing of returns disclosing the amount of tax liability,[45] and of reports under oath showing instances where employees have worked in excess of hours of labor permitted by law.[46] Without violating either the Fourth or Fifth Amendments, a judicial decree enjoining illegal practices under the Antitrust Act may provide that the Department of Justice shall be given access to all records and documents of the corporation relating to the matter covered by the decree.[47] The Supreme Court has intimated, however, that record keeping requirements must be limited to data which are relevant to the effective administration of the law.[48]

Search and Seizure Incidental to Arrest

The right to search the person upon arrest has long been recognized[49] but authority to search the premises upon which the arrest is made has been approved only in recent years. In Agnello _v._ United States,[50] the Supreme Court asserted that: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."[51] Books and papers used to carry on a criminal enterprise, which are in the immediate possession and control of a person arrested for commission of an offense in the presence of the officers may be seized when discovered in plain view during a search of the premises following the arrest.[52] The lawful arrest of persons at their place of business does not justify a search of desks and files in the offices where the arrest is made and seizure of private papers found thereon.[53] A search which is unlawfully undertaken is not made valid by the evidence of crime which it brings to light.[54]

By a five to four decision in Harris _v._ United States[55] the Court sustained, as an incident to a lawful arrest, a five hour search by four federal officers of every nook and cranny of a four-room apartment. It also upheld the seizure of papers unrelated to the crime for which the arrest was made, namely, Selective Service Registration cards which were discovered in a sealed envelope in the bottom of a bureau drawer. In justification of this conclusion, Chief Justice Vinson wrote: "Here the agents entered the apartment under the authority of lawful warrants of arrest. Neither was the entry tortious nor was the arrest which followed in any sense illegal. * * * The search was not a general exploration but was specifically directed to the means and instrumentalities by which the crimes charged had been committed, particularly the two canceled checks of the Mudge Oil Company. * * * If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated."[56] In a dissenting opinion in which Justices Murphy and Rutledge concurred, Justice Frankfurter challenged the major premises announced by the Court. "To derive from the common law right to search the person as an incident of his arrest the right of indiscriminate search of all his belongings, is to disregard the fact that the Constitution protects [against] both unauthorized arrest and unauthorized search. Authority to arrest does not dispense with the requirement of authority to search. * * * But even if the search was reasonable, it does not follow that the seizure was lawful. If the agents had obtained a warrant to look for the canceled checks, they would not be entitled to seize other items discovered in the process. * * * The Court's decision achieves the novel and startling result of making the scope of search without warrant broader than an authorized search."[57] A more limited search in connection with an arrest was held valid in United States _v._ Rabinowitz.[58] In that case, government officers, armed with a valid warrant for arrest, had arrested respondent in his one-room office which was open to the public. Thereupon, over his objection, they searched the desk, safe and file cabinets in the office for about an hour and a half and seized 573 forged and altered stamps. Justice Minton assigned five reasons for holding that the search and seizure was reasonable: "(1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; (5) the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars' tools, lottery tickets or counterfeit money."[59] This decision also overruled an intermediate case, Trupiano _v._ United States,[60] whereby the practical effect of the Harris decision had been circumscribed by a ruling that even where a valid arrest is made, a search without a warrant is not permissible if the circumstances make it feasible to procure a warrant in advance.

Search of Vehicles

The Fourth Amendment has been construed "* * *, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, where is it not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * * * The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported."[61] Where officers have reasonable grounds for searching an automobile which they are following, a search of the vehicle immediately after it has been driven into an open garage is valid.[62] The existence of reasonable cause for searching an automobile does not, however, warrant the search of an occupant thereof, although the contraband sought is of a character which might be concealed on the person.[63]

Use of Evidence

To remove the temptation to ignore constitutional restraints on search and seizure, evidence obtained in violation thereof is made inadmissible against an accused in federal courts.[64] This is contrary to the practice prevailing in the majority of States and has been severely criticized as a matter of principle.[65] The Court has intimated recently that the federal exclusionary rule is not a command of the Fourth Amendment, but merely a judicially created rule of evidence which Congress could overrule. In Wolf _v._ Colorado,[66] it ruled that while that amendment is binding on the States, it does not prevent State courts from admitting evidence obtained by illegal search. With respect to the federal rule, Justice Frankfurter said: "* * * though we have interpreted the Fourth Amendment to forbid the admission of such evidence, a different question would be presented if Congress, under its legislative powers, were to pass a statute purporting to negate the _Weeks_ doctrine. We would then be faced with the problem of the respect to be accorded the legislative judgment on an issue as to which, in default of that judgment, we have been forced to depend upon our own."[67] This rule does not prevent the use of evidence unlawfully obtained by individuals,[68] or by State officers,[69] unless federal agents had a part in the unlawful acquisition,[70] or unless the arrest and search were made for an offense punishable only by federal law.[71] A search is deemed to be "a search by a federal official if he had a hand in it; * * * [but not] if evidence secured by State authorities is turned over to the federal authorities on a silver platter. The decisive factor * * * is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it."[72] Samples of illicit goods constituting part of a quantity seized by federal officials under a valid search warrant may be used as evidence, whether or not the officers become civilly liable as trespassers _ab initio_, by reason of the fact that they unlawfully destroyed the remainder of the goods at the time the seizure was made.[73]

In Silver Thorne Lumber Co. _v._. United States,[74] the Court refused to permit the Government to subpoena corporate records of which it had obtained knowledge by an unlawful search. To permit "knowledge gained by the Government's own wrong" to be so used would do violence to the Bill of Rights.[75] But a defendant in a civil antitrust suit may be required to produce records which had been previously subpoenaed before a grand jury, despite the fact that the grand jury was illegally constituted because women were excluded from the panel.[76] Where government agents lawfully obtained knowledge of the contents of a cancelled check during examination of the records of a government contractor, the admission of such check in evidence was held not to be an abuse of discretion even if the seizure of the check itself was deemed illegal.[77] The seizure of papers under a writ of replevin issued in a civil suit between private persons does not violate the Fourth and Fifth Amendments.[78]

Notes

[1] Carroll _v._ United States, 267 U.S. 132, 147, 149 (1925).

[2] Burdeau _v._ McDowell, 256 U.S. 465, 475 (1921).

[3] Den ex dem. Murray _v._ Hoboken Land & Improv. Co., 18 How. 272, 285 (1856).

[4] Nathanson _v._ United States, 290 U.S. 41, 47 (1933)

[5] Gouled _v._ United States, 255 U.S. 298 (1921).

[6] Taylor _v._ United States, 286 U.S. 1 (1932).

[7] Carroll _v._ United States, 267 U.S. 132 (1925).

[8] Hester _v._ United States, 265 U.S. 57 (1924).

[9] Ex parte Jackson, 96 U.S. 727, 733 (1878).

[10] Boyd _v._ United States, 116 U.S. 616 (1886); Hale _v._ Henkel, 201 U.S. 43 (1906).

[11] Stroud _v._ United States, 251 U.S. 15, 21 (1919).

[12] Amos _v._ United States, 255 U.S. 313 (1921); Johnson _v._ United States, 333 U.S. 10 (1948).

[13] Davis _v._ United States, 328 U.S. 582 (1946).

[14] Olmstead _v._ United States, 277 U.S. 438 (1928). _Cf._ Nardone _v._ United States, 302 U.S. 379 (1937); 308 U.S. 338 (1939).

[15] Goldman _v._ United States, 316 U.S. 129 (1942).

[16] Bilokumsky _v._ Tod, 203 U.S. 149, 155 (1923).

[17] On Lee _v._ United States, 343 U.S. 747 (1952).

[18] Ibid. 753. Four Justices dissented, relying in the main on the dissent in the Olmstead case, which came later to be adopted by Congress. _See_ note 10 above. [Transcriber's Note: Reference is to Footnote 14, above.]

[19] United States _v._ Jeffers, 342 U.S. 48 (1951).

[20] Ex parte Burford, 3 Cr. 448 (1806).

[21] Albrecht _v._ United States, 273 U.S. 1 (1927).

[22] McGrain _v._ Daugherty, 273 U.S. 135, 156, 158 (1927).

[23] Agnello _v._ United States, 269 U.S. 20 (1925).

[24] Byars _v._ United States, 273 U.S. 28, 29 (1927).

[25] Steele _v._ United States, No. 1, 267 U.S. 498, 504, 505 (1925); Dumbra _v._ United States, 268 U.S. 435, 441 (1925).

[26] Marron _v._ United States, 275 U.S. 192, 196 (1927).

[27] Gouled _v._ United States, 255 U.S. 298 (1921).

[28] 116 U.S. 616 (1886).

[29] Ibid. 630.

[30] Ibid. 634, 635.

[31] Ibid. 633.

[32] Ibid. 635.

[33] Hale _v._ Henkel, 201 U.S. 43, 74 (1906); Essgee Co. _v._ United States, 262 U.S. 151 (1923). _Cf._ Interstate Commerce Commission _v._ Baird, 194 U.S. 25, 46 (1904).

[34] Wilson _v._ United States, 221 U.S. 361 (1911). _See also_ Wheeler _v._ United States, 226 U.S. 478 (1913); Grant _v._ United States, 227 U.S. 74 (1913).

[35] United States _v._ White, 322 U.S. 694 (1944).

[36] Re Fuller, 262 U.S. 91 (1923). _See also_ McCarthy _v._ Arndstein, 266 U.S. 34, 41 (1924).

[37] Perlman _v._ United States, 247 U.S. 7 (1918).

[38] Hale _v._ Henkel, 201 U.S. 43, 76 (1906).

[39] Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186, 208 (1946).

[40] Federal Trade Commission _v._ American Tobacco Co. 264 U.S. 298, 305-306 (1924).

[41] 327 U.S. 186 (1946).

[42] Ibid. 208-209.

[43] United States _v._ Darby, 312 U.S. 100, 125 (1941).

[44] Shapiro _v._ United States, 335 U.S. 1, 32 (1918).

[45] Flint _v._ Stone Tracy Co., 220 U.S. 107, 175 (1911).

[46] Baltimore & O.R. Co. _v._ Interstate Commerce Comm'n., 21 U.S. 612 (1911).

[47] United States _v._ Bausch & L. Optical Co., 321 U.S. 707, 725 (1944). _Cf._ United States _v._ Morton Salt Co., 338 U.S. 632 (1950).

[48] Shapiro _v._ United States, 335 U.S. 1, 32 (1948); Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186, 208 (1946).

[49] Weeks _v._ United States, 232 U.S. 383, 392 (1914).

[50] 269 U.S. 20 (1925).

[51] Ibid. 30.

[52] Marron _v._ United States, 275 U.S. 192 (1927).

[53] Go-Bart Importing Co. _v._ United States, 282 U.S. 344 (1931); United States _v._ Lefkowitz, 285 U.S. 452 (1932).

[54] Byars _v._ United States, 273 U.S. 28 (1927); Johnson _v._ United States, 333 U.S. 10, 16 (1948).

[55] 331 U.S. 145 (1947).

[56] Ibid. 153, 155.

[57] Ibid. 165. Separate dissenting opinions were written by Justices Murphy and Jackson.

[58] 339 U.S. 56 (1950).

[59] Ibid. 64.

[60] 334 U.S. 699 (1948); McDonald _v._ United States, 335 U.S. 451 (1948) is also overruled in effect, although it was not mentioned in the Court's opinion.

[61] Carroll _v._ United States, 267 U.S. 132, 153-156 (1925). Husty _v._ United States, 282 U.S. 694 (1931); Brinegar _v._ United States, 338 U.S. 160 (1949).

[62] Scher _v._ United States, 305 U.S. 251 (1938).

[63] United States _v._ Di Re, 332 U.S. 581 (1948).

[64] Weeks _v._ United States, 232 U.S. 383 (1914). This case was a virtual repudiation of Adams _v._ New York, 192 U.S. 585, 597 (1904). There the Supreme Court had ruled that in criminal proceedings in a State court the use of private papers obtained by unlawful search and seizure "was no violation of the constitutional guaranty of privilege from unlawful search or seizure." It added: "Nor do we think the accused was compelled to incriminate himself."

[65] Wolf _v._ Colorado, 338 U.S. 25, 29, 38 (1949); 8 Wigmore on Evidence (3d ed.) Sec. 2184 (1940).

[66] 338 U.S. 25 (1949).

[67] Ibid. 33.

[68] Burdeau _v._ McDowell, 256 U.S. 465 (1921).

[69] Byars _v._ United States, 273 U.S. 28, 33 (1927).

[70] Ibid. 32; Lustig _v._ United States, 338 U.S. 74 (1949).

[71] Gambino _v._ United States, 275 U.S. 310 (1927).

[72] Lustig _v._ United States, 338 U.S. 74, 78, 79 (1949).

[73] McGuire _v._ United States, 273 U.S. 95 (1927).

[74] 251 U.S. 385 (1920).

[75] Ibid. 392.

[76] United States _v._ Wallace & Tiernan Co., 336 U.S. 793 (1949).

[77] Zap _v._ United States, 328 U.S. 624 (1946).

[78] American Tobacco Co. _v._ Werckmeister, 207 U.S. 284, 302 (1907).

AMENDMENT 5

RIGHTS OF PERSONS

Page
Rights of accused persons 837
The grand jury clause 837
Double jeopardy 838
Self-incrimination 841
Source of the clause 841
Due process of law 844
Source and evolution of the meaning of the term 844
Scope of the guaranty 846
Procedural due process 846
General 846
Criminal prosecutions 847
Notice and hearing 847
Evidence and presumption in judicial proceedings 848
Administrative proceedings 849
Fair hearing 849
Judicial review 850
Aliens 851
Deportation 852
Substantive due process 853
Discrimination 853
Deprivation of liberty 854
Deprivation of property 855
Retroactive legislation sustained 855
Retroactive legislation disallowed 857
Bankruptcy legislation 857
Right to sue the government 858
Congressional police measures 859
The postal service 859
Regulation of public utilities 860
Regulation of railroads 861
Taxation 862
Retroactive taxes 863
Governance of the Indians 864
The national eminent domain power 864
Scope of power 864
Alien property 865
Public use 865
Rights for which compensation must be made 866
When property is taken 867
Navigable waters 867
Just compensation 869
Interest 871
Enforcement of right to compensation 872

RIGHTS OF PERSONS

Amendment 5

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 cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Rights of Accused Persons

THE GRAND JURY CLAUSE

Within the meaning of this article a crime is made "infamous" by the quality of the punishment which may be imposed.[1] The Court has recognized that: "What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another."[2] Imprisonment in a State prison or penitentiary, with or without hard labor,[3] or imprisonment at hard labor in the workhouse of the District of Columbia,[4] falls within this category. The pivotal question is whether the offense is one for which the Court is authorized to award such punishment; the sentence actually imposed is immaterial. When an accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.[5] Thus, an act which authorizes imprisonment at hard labor for one year, as well as deportation, of Chinese aliens found to be unlawfully within the United States, creates an offense which can be tried only upon indictment.[6] Counterfeiting,[7] fraudulent alteration of poll books,[8] fraudulent voting,[9] and embezzlement[10] have been declared to be infamous crimes. It is immaterial how Congress has classified the offense.[11] An act punishable by a fine of not more than $1,000 or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment exceeds that specified in the statutory definition of "petty offenses."[12]

A person can be tried only upon the indictment as found by the grand jury, and especially upon its language found in the charging part of the instrument. A change in the indictment deprives the court of the power to try the accused.[13] There is no constitutional requirement that an indictment be presented by a grand jury in a body; an indictment delivered by the foreman in the absence of the other grand jurors is valid.[14]

The words "when in actual service in time of war or public danger" apply to the militia only. All persons in the regular army or navy are subject to court martial rather than indictment or trial by jury, at all times.[15] The exception of "cases arising in the land or naval forces" was not aimed at trials of offenses against the laws of war. Its objective was to authorize trial by court martial of the members of the Armed Forces for all that class of crimes which under the Fifth and Sixth Amendments might otherwise have been deemed triable in the civil court. Either citizen or alien enemy belligerents may be tried by a military commission for offenses against the laws of war.[16]

DOUBLE JEOPARDY

By the common law not only was a second punishment for the same offense prohibited, but a second trial was forbidden whether or not the accused had suffered punishment, or had been acquitted or convicted.[17] This clause embraces all cases wherein a second prosecution is attempted for the same violation of law, whether felony or misdemeanor.[18] Seventy-five years ago a closely divided Court held that the protection against double jeopardy prevented an appeal by the Government after a verdict of acquittal.[19] A judgment of acquittal on the ground of the bar of the statute of limitations is a protection against a second trial,[20] as is also a general verdict of acquittal upon an issue of not guilty to an indictment which was not challenged as insufficient before the verdict.[21] Where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized either punishment, but not both, it could not, after the fine had been paid, during the same term of court, change its judgment by sentencing the defendant to imprisonment.[22] But where a statute carried a minimum mandatory sentence of both a fine and imprisonment, the imposition of the minimum fine five hours after the court had erroneously sentenced the defendant to imprisonment only did not amount to double jeopardy.[23] Whether or not the discontinuance of a trial without a verdict bars a second trial depends upon the circumstances of each case.[24] Discharge of a jury because it is unable to reach an agreement[25] or because of the disqualification of a juror[26] does not preclude a second trial. Where, after a demurrer to the indictment was overruled, a jury was impaneled and witnesses sworn, the discharge of the jury to permit the defendant to be arraigned did not bar a trial before a new jury.[27] The withdrawal of charges after a trial by a general court martial had begun, because the tactical situation brought about by the rapid advance of the army made continuance of the trial impracticable, did not bar a trial before a second court martial.[28] An accused is not put in jeopardy by preliminary examination and discharged by the examining magistrate,[29] by an indictment which is quashed,[30] nor by arraignment and pleading to the indictment.[31] In order to bar prosecution, a former conviction must be pleaded.[32]