The opinion of the court was delivered by
Mr. Justice Gary.The agreed statement of facts upon which the case was heard by his honor, Judge Witherspoon, together with the order of Judge Witherspoon and appellant’s exceptions, will be set out in the report of the case. His honor, Judge Witherspoon, states in his order that the attorney for the defendant moved for the discharge of the prisoner, on the grounds that “the bill found by the grand jury was not *111based upon an affidavit charging the defendant with any offence, but that the prosecution in this court was instituted upon the motion of the solicitor.” The failure of the presiding judge to sustain this objection is made the grounds of appeal to this court.
1 In the case of United States v. Kilpatrick, 16 Fed. Rep., 765, the court says: “The district attorney, according to the usual practice, may, on his official responsibility, send a bill to a grand jury without a prior arrest and binding over; but he should exercise this power cautiously, and never so act unless convinced that the exigencies of the occasion or the general public good demand it. If he has any doubts as to the propriety of such action he should consult the court. Whar. Crim. Law, 458, and notes. Mr. Justice Field, in an able and well considered charge to a grand jury in California (5 Am. Law J., 259), very clearly defined his views as to the powers and duties of grand juries in the Federal Courts. He said, in substance, that their investigations are limited to such offences as are called to their attention by the court, or submitted to their consideration by the district attorney; or such as may come to their knowledge in the course of their investigations of matter brought before them, or from their own observations; or such as may be disclosed by the members of the body. With the above exceptions, he was of opinion that all criminal prosecutions should be commenced by preliminary examinations before a magistrate, where a person accused of crime may meet his accuser face to face, and have an opportunity for defence; as this method of procedure affords the citizen the greatest security against false accusations from any quarter. He also, in strong terms, directed the grand jurors not to allow private prosecutors to intrude themselves into the grand jury room and present accusations” (italics ours).
In Thomp. & Mer. on Juries, section 607, it is said: “It is' provided by the sixth amendment to the Constitution of the Hnited States, among other things, that ‘in all criminal prosecutions the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for ob-*112taming witnesses in his favor, and to have the assistance of counsel for his defence.’ Although the settled construction of this provision is that it was not assigned as a limit upon the State governments in reference to their own citizens, but exclusively as a restriction upon Federal power, it is believed that a provision of similar import will be found in the Constitution of each State. Such a provision does not prohibit other modes of originating criminal charges against offenders than that by a prosecution before a committing magistrate.”
In section 608, Ibid., it is said: “The grand jury is not necessarily deterred from finding an indictment, because, at the time the charge is presented to them, it is undergoing examination before a magistrate. This circumstance has only a persuasive force with the body to postpone action upon the charge. Cases may be readily imagined where it is highly important to proceed by indictment without delay, and the law does not interfere with the exercise of discretion by the grand jury in such emergencies.”
In section 610, Ibid., it is said: “In view of the fact, that the grand jury have, from time immemorial, possessed the power to present for offences other than those brought to their attention by bills formally prepared, it is clear that so important a right of the people will not be divested, unless by the,positive terms of a statute which will admit of no other construction. The statutes generally provide for the examination of accused persons by committing magistrates, and direct, with considerable detail, how this proceeding shall be conducted. Nevertheless, the accused cannot, by virtue of such statutes, show, in abatement of an indictment, that no preliminary examination was had. The examination enjoined is a mere expedient to prevent the suspected person from escaping, or for preserving the evidence, or keeping the witnesses in control. Otherwise, it is clear that no case could be brought before a grand jury, unless the defendant were under arrest, and this he might elude until the offence should be condoned by a statute of limitation. Furthermore, the determination of the magistrate to discharge an accused person, would be conclusive against the *113public. He might grossly err, or act from improper motives, and there would be no remedy.”
In section 611, Ibid., it is said: “Indictments, however, originate with the grand jury in a variety of ways, which will now be noticed: 1. By the court giving a matter of general notoriety specially in charge. 2. By the exercise of powers, ex officio, of the prosecuting officer. 3. From the knowledge of the grand jury. 4. By the exercise of general and special inquisitorial powers by that body. The procedure here indicated is not recognized by all courts. Few, if any, courts would deny what is stated in propositions 1 and 2.”
In section 613, Ibid., it is said: “Another exception to the general rule is the conceded right of the attorney general, or other prosecuting officer, to bring to the attention of the grand jury the circumstances of a particular case, for their action. In practice, this power should be cautiously exercised — generally under the direction of the court — and never unless the public good demands it. It is evident that this emergency includes a limited class of cases — for example, such as where the accused has fled the State, and an indictment found may be required previous to demanding him from a neighboring State, or where a less prompt mode of proceeding might lead to the escape of the offender. When the public officer exercises this power without some pressing and adequate necessity to justify the course, it is the duty of the court to set the officer’s act aside. The action of the officer and the court can be made the subject of review by an appellate court only when the abuse of their powers is both manifest and flagrant.”
There is nothing in the “Case” showing that the exercise of this power was abused.
It is the judgment of this court, that the order of the Circuit Court be affirmed.