U.S. Supreme Court
Ex Parte Bain, 121 U.S. 1 (1887)
Ex Parte Bain
Argued March 8, 1887
Decided March 28, 1887
121 U.S. 1
The declaration of Article V of the Amendments to the Constitution, 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" is jurisdictional, and no court of the United states has authority to try a prisoner without indictment or presentment in such cases.
The indictment here referred to is the presentation to the proper court, under oath, by a grand jury, duly impaneled, of a charge describing an offense against the law for which the party charged may be punished.
When this indictment is filed with the court, no change can be made in the body of the instrument by order of the court or by the prosecuting attorney without a resubmission of the case to the grand jury. And the fact that the court may deem the change immaterial, as striking out of surplus words, makes no difference. The instrument, as thus changed, is no longer the indictment of the grand jury which presented it.
This was the doctrine of the English courts under the common law. It is the uniform ruling of the American courts except where statutes prescribe a different rule, and it is the imperative requirement of the provision of the Constitution above recited, which would be of little avail if an indictment once found can be changed by the prosecuting officer, with consent of the court, to conform to their views of the necessity of the case.
Upon an indictment so changed the court can proceed no farther. There is nothing (in the language of the Constitution) which the prisoner can "be held to answer." A trial on such indictment is void. There is nothing to try. chanroblesvirtualawlibrary
According to principles long settled in this Court, the prisoner who stands sentenced to the penitentiary on such trial is entitled to his discharge by writ of habeas corpus.
This was a petition for a writ of habeas corpus. The case is stated in the opinion of the Court.