(concurring in part and dissenting in part).
What my brothers call “the third issue” seems to me to be not a frivolous technicality, but the primary question of jurisdiction. As to capital offenses, *932I think that the historic function of the Grand Jury has been preserved and that an indictment is still essential.
Jurisdiction must be properly invoked, and in cases where an indictment is required, lack of indictment goes to the court’s jurisdiction.1 At common law only misdemeanors, or the less serious offenses, could be prosecuted by information; and an accused could not be held to answer for a capital offense or a felony except on presentment or indictment of a Grand Jury.2
The Fifth Amendment to the Constitution provides in part 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 Court has held that that provision of the Fifth Amendment was intended as a protection to the individual and may be waived by the accused. Barkman v. Sanford, 5 Cir., 162 F.2d 592, 594. Jurisdiction cannot, however, be conferred by consent; and some law permitting the prosecution of the offense by information is essential to the court’s jurisdiction. United States v. Gill, supra. The law relied on is Rule 7(a) and (b), F.R.Crim. Proc., reading as follows:
“(a) Use of Indictment or Information. An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prosecuted by information. Any other offense may be prosecuted by indictment or by information. An information may be filed without leave of court.
“(b) Waiver of Indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor may be prosecuted by information if the defendant, after he has been advised of the nature of the charge and of his rights, waives in open court prosecution by indictment.” 18 U.S.C.A.
That rule relieved the prosecutor from the necessity theretofore existing3 of obtaining leave of court for the filing of an information. It expressly furnished no authority, however, for the prosecution by information of an offense which might possibly be punished by death. “An offense which may be punished by death shall be prosecuted by indictment.” Rule 7(a), F.R.Crim.Proc., 18 U.S.C.A.
A reading of the statute defining the offense4 makes it clear that the liberation of the kidnapped person unharmed is not part of the offense itself, but is something which occurs, if at all, after the offense has been committed and which may then mitigate the permissible punishment. Whether the kidnapped person has been liberated unharmed may often be a debatable question. It is possible that the liberation may occur after the charge has been brought, and, in cases of prior liberation, it is possible that undiscovered harm may thereafter develop. It was well said by Judge Learned *933Hand in United States v. Parrino, 2 Cir., 180 F.2d 613, 615:
“We agree that the indictment stated all the essentials of the crimes charged, and that it was not necessary to allege that the victim was not released ‘unharmed’ in order that the jury might recommend the death-penalty. That is an allegation going only to the punishment, and although the accused has to be adequately advised of it, since the jury must pass upon it, it will be enough if he gets the information in season from any source.”
In Robinson v. United States, 6 Cir., 144 F.2d 392, 393, 396, the appellant contended that the following part of the statute as it then existed violated the Fifth and Sixth Amendments:
“ ‘shall, upon conviction, be punished (1) by death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed * * * .’ ” 144 F.2d at page 396.
Judge Hicks, speaking for the court, said :
“We have italicized that portion which allegedly contravenes the indicated amendments. The criticism of these provisions is that they are too vague, uncertain and indefinite to form the basis of a valid indictment. The short answer is, that the provisions do not constitute an element or ingredient of the offenses denounced in Sec. 408a. They relate to the punishment and there is nothing in the Constitution which grants the accused the right to be informed of the punishment that may be inflicted upon him by law. The offense is the subject of an indictment, not the punishment. The punishment is the remedy the law provides, and is not, except perhaps in exceptional cases to be set forth in the indictment. See Bishop on Criminal Law, 3rd Ed., Vol. I, Sec. 204.” 144 F.2d at page 396.
Even appellant’s plea of guilty may not have relieved him of the possibility of suffering death as punishment for the offense. In Seadlund v. United States, 7 Cir., 97 F.2d 742, 743, it was held permissible for the court, after accepting a plea of guilty, to submit to a jury the question calling for its recommendation as to the death penalty.
Jurisdiction must exist from the beginning and it should affirmatively appear of record. If we assume, contrary to the foregoing authorities, that the fact .of liberation of the kidnapped person unharmed reduces the grade of the offense instead of going only to the punishment, still an express averment of such fact is necessary to keep the offense charged from being one which may be punished by death. The information in the present case contained no such averment. See Footnote 2 to the main opinion. In the face of the requirement that “An offense which may be punished by death shall be prosecuted by indictment” no one could reasonably seek to sustain an information charging murder,5 unless the offense *934charged by the terms of the information itself was murder in the second degree. It makes no difference that the jury might add to its verdict “without capital punishment” or might find the defendant guilty of some non-capital offense.6 By the same token, an information for transporting a kidnapped person under 18 U.S.C.A. § 1201(a) cannot be permitted, unless it contains an averment that the kidnapped person has been released unharmed.
Where the question is one of limitations,7 of place of trial,8 or of some other matter' not essential to the court’s jurisdiction, it may be proper to look to the evidence to determine whether or not the offense is punishable by death. For certain other purposes, for example, the admission to bail,9 the furnishing vel non of a copy of the indictment and a list of the veniremen and of the witnesses at least three entire days before commencement of the trial,10 the allowance of either 20 or 6 peremptory challenges of jurors,11 the taking of the evidence cannot be awaited. Jurisdiction,, above all other matters, must exist from the beginning, and should affirmatively appear of record.
While Rule 7, F.R.Crim.Proc., vests wide discretion in the United States Attorney and frees him from the necessity of obtaining leave of court in cases properly prosecuted by information, its language leaves no doubt that such uncontrolled discretion does not include the right to preclude the imposition of the death penalty in any case which might possibly be so punished, a discretion which could theretofore be finally exercised by no one man alone. And only the President might pardon or relieve the defendant of the death penalty after it had been imposed.
The gravity of capital offenses, even when the punishment actually imposed is imprisonment instead of death, requires the presentment or indictment of a Grand Jury, and, hence, a more solemn and measured prosecution than can occur over a weekend.12
In my opinion, the jurisdiction of the court over the offense was never properly invoked, and I, therefore, respectfully dissent from that part of the opinion dealing with the so-called “third issue”. The other questions ruled on by the majority I do not reach, but concur in the judgment of reversal and dissent from the remand for further proceedings.
. Ex parte Bain, 121 U.S. 1, 12, 13, 7 S.Ct. 781, 30 L.Ed. 849; Barkman v. Sanford, 5 Cir., 162 F.2d 592; Pugh v. United States, 9 Cir., 212 F.2d 761, 764; United States v. Gill, D.C.N.M., 55 F.2d 399, 404.
. Albrecht v. United States, 273 U.S. 1, 6, 7, 47 S.Ct. 250, 71 L.Ed. 505, where it was observed that there had been practically no use of criminal informations in federal courts prior to 1870; 27 Am.Jur., Indictments and Informations, § 5; 42 C.3.S., Indictments and Informations, § 12.
. Albrecht v. United States, supra.
. “(a) Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away and held for ransom or reward or otherwise, except in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnapped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.” Title 18, U.S.C.A. § 1201(a).
. Ҥ 1111. Murder.
“(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
“Any other murder is murder in the second degree.
“(b) Within the special maritime and territorial jurisdiction of the United States,
“Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto ‘without capital punishment’, in which event he shall be sentenced to imprisonment for life;
“Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.” Title 18, U.S.C.A. § 1111.
. “(c) Conviction of Less Offense. The . defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.” Rule 31(c), F.R. Crim.Proc.
. United States v. Parrino, supra; on second appeal, 2 Cir., 203 F.2d 284, 287.
. United States v. Parker, supra.
. 18 U.S.C.A. § 3141.
. 18 U.S.C.A. § 3432. In Brown v. Johnston, 9 Cir., 126 F.2d 727, 728, it would appear that the indictment alleged that the kidnapped person had been liberated unharmed.
. Rule 24(b), F.R.Crim.Proc., 18 U.S.C.A.
. Arrested Friday, the appellant was sentenced to thirty years imprisonment the following Monday morning.