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13 Syracuse L. Rev. 389 (1961-1962)
Indictment and Information in Federal Criminal Procedure

handle is hein.journals/syrlr13 and id is 401 raw text is: INDICTMENT AND INFORMATION IN FEDERAL CRIMINAL PROCEDUREt LESTER B. ORFIELD* VII. RuLE 7 As INTERPRETED IN THE DECISIONS A. Use of Indictment or Information. Rule 7 refers to criminal offenses, that is crimes in the constitutional sense.690 It does not refer to criminal contempts, which are governed by Rule 42. An indictment may be filed against an insane person although he can- not while insane plead to an arraignment, or be tried, sentenced or undergo punishment.70J In cases requiring an indictment he cannot waive the indictment. A district court denied a motion to vacate a judgment of conviction for kidnapping involving no harm to the victim where the sentence was for life imprisonment301 The court of appeals affirmed.702 The Supreme Court reversed on the ground that the offense may be punishable by death.703 It is not procedurally correct or practical to wait until the conclusion of the evidence to determine whether a capital offense is involved because there was no harm to the victim. The statute creates a single offense. A court of appeals has concluded that in cases where an indictment is required, lack of indictment goes to the court's jurisdiction.704 Where the offense is punished by imprisonment for more than one year or at hard labor the defendant has a right to a grand jury indictment.70z An information for an infamous offense may be filed before the de- fendant waives in open court his right to be prosecuted by indictment, although he cannot be required to plead or be tried until he has made such waiver.706 Following waiver the defendant could plead guilty in another district to an information transmitted from the district in which the offense occurred. Where the maximum penalty for the offense charged is imprisonment t This is the last of a three part article. The first part, which outlined the history of Rule 7, appeared in 13 Syracuse L. Rev. 14 (1961). The second, dealing with federal procedure prior to Rule 7, appeared in 13 Syracuse L. Rev. 218 (1961). 0 Professor of Law, Indiana University. 699. Green v. United States, 356 U.S. 165, 187 n.20 (1958). 700. Frye v. Settle, 168 F. Supp. 7, 14 (NV. D. Mo. 1958). 701. Smith v. United States, 137 F. Supp. 222, 231 (M.D. Ala. 1956). 702. Smith v. United States, 250 F.2d 842 (5th Cir. 1957). The decision was two to one. 703. Smith v. United States, 360 U.S. 1, 6 (1959). Three justices dissented. The case is noted in 12 Ala. L. Rev. 190 (1959); 38 N.C.L. Rev. 84 (1959). 704. United States v. Choate, 276 F.2d 724, 728 (5th Cir. 1960). 705. Cammer v. United States, 350 U.S. 399, 407 (1956). 706. United States v. East, 5 F.R.D. 389 (N.D. Ind. 1946).

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