XI. SEARCH WARRANT AND INDICTMENT

The Home Protected Against Unlawful Search And Seizure-Grand Jury Indictment Required

Following the provision that we last discussed that no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war except in a manner prescribed by law, we find the Const.i.tution making a most positive provision guarding the sacredness of the home, the sacredness of the person, and the things belonging to each person. In the olden days the people had to submit to the most brutal conduct. A man might think some one had stolen his ring or his watch.

Suspecting a neighbor, and being the stronger, or a.s.sembling his friends, or some officers, he might enter the neighbor's home, search all through the house among papers, in the desks, and in every trunk and other place where personal belongings were kept, might search the person himself, his pockets, and clothing.

Of course you can easily understand that the people who were thus abused would resent such actions. In England the people in early days had protested and had secured some guaranties from the king against these outrages, but the first absolute written guaranty of the full rights of the people was when the following provision was inserted in our Const.i.tution:

"_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._"(60)

Of course it is apparent that so long as we have crimes committed the wrongdoer must be punished. Wrongdoers naturally try to conceal the evidence of their crimes: the murderer seeks to hide the revolver, the thief seeks to hide the money, the bonds, or the jewels. So it is necessary, in order to find criminals and to recover valuable things they may have taken, to have the privilege of searching persons or houses. But the thing which the Const.i.tution guarantees is that no such search shall be made except upon warrants issued by some court, which are commands to a peace officer to seize a certain person (arrest him) or to search a certain house or other place for things which might aid in administering justice. No warrants shall be issued by any court until some one has appeared and filed a solemn statement under oath showing some reasonable grounds for believing that the search or seizure will disclose evidence of the offense. The place must be described. The things or the persons to be seized must be described. A warrant issued by any court, no matter how high, without such a sworn statement being presented, is void and in violation of the rights of every person under the Const.i.tution. The courts are often called upon to enforce this right of the people. The home, especially under our Const.i.tution, is recognized as sacred. "Every man's house is his castle" and wherever, without the proper warrant, search or seizure is made, the court will promptly punish the wrongdoer and if something has been seized or taken possession of wrongfully the court will order it returned. Even though valuable as evidence of guilt, the court will not permit it to be used, if it has been seized in violation of the guaranty of the Const.i.tution.

No matter how humble the home, whether it be owned or rented, whether it have one room or a dozen, it stands exactly the same under this const.i.tutional provision, and is guarded against "unreasonable searches and seizures". No matter how poor the owner, he can stand at his door and defy all the officers of State or government, yes, and all the soldiers of the republic, defy them to enter until the provisions of the Const.i.tution of the United States shall have been complied with.

Now, we come to guaranties of the right of the people to protection against any trial, except the same be conducted in accordance with the guaranties of the Const.i.tution. These guaranties are for all persons, young or old, rich or poor. You know sometimes the innocent are charged with grave crimes. A crime is committed in the darkness of the night. The criminal has fled. The first duty of the officers of the government-the servants of the people-is to find the criminal so that he may be punished for his wrongdoing. This is not an easy task, and no matter how careful officers may be, mistakes are sometimes made and innocent persons are arrested and charged with the offense. Bring this home to yourself, because every one of these const.i.tutional guaranties are for you, for each of you, for your father, mother, brothers, and sisters. Keep this in mind.

Do not consider them as applying to somebody away off, some stranger in whom you have no interest. _They apply to you._

Now suppose that to-night a murder should be committed, and to-morrow your father should be arrested and charged with the crime of which he was entirely innocent. It will be very important to him that he should have a fair chance, a fair trial. His liberty would be at stake, and liberty under the Const.i.tution is a sacred thing. Thinking of liberty his mind would naturally turn to the Const.i.tution, and if he examined it, he would find the following guaranty:

"_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._"(61)

Now you do not understand this, do you? And yet it is very simple. When a man is arrested, he is brought before the court for trial. But how, and before whom shall he be tried?

Remember that in America the enforcement of law is in the hands of the people. Remember that this is a government by the people and that the chief purpose of government is to protect the liberties of the people.

Here is your father's liberty at stake. If he should be convicted of having committed this murder, he might be hanged or sent to prison for life, so it is very important to him that the investigation into the charge against him shall be conducted in the right manner.

Under this const.i.tutional guaranty which is also included in your State Const.i.tution, there is no court and no judge in the United States big enough or powerful enough to call your father before the court for trial until he has been indicted by a grand jury. A grand jury, generally composed of twelve or more men selected from ordinary citizens, is brought together every term of court. They sit in a room by themselves and hear evidence as to the commission of offenses. They have no power to find a man guilty or not guilty. Their power and their duty is to decide whether the evidence brought before them is sufficient to justify putting the accused man on trial for the offense. They hear the witnesses for the State or government. The defendant is not brought before them personally, nor is he represented in any way. It is simply a secret investigation. If these men upon this investigation decide the evidence is not sufficient to warrant the trial of a man, he is discharged. He cannot be put on trial before the court. Before the court can proceed the grand jury must first say that the man shall be tried. The people thus have in their hands the power of protecting the innocent, and the power of inst.i.tuting proceedings against the guilty. The grand jury brings in its report by an "indictment"

which is merely a written statement to the court that the grand jury believes the defendant should be put upon trial for a certain offense.

When this indictment is brought in, the defendant is called before the court, the charge is read to him, and he is then required to say whether he is guilty or not guilty. If he says that he is not guilty, then preparation must be made for a trial in the court, before a pet.i.t jury, a trial jury, which we will consider later. The thing I want to impress upon you now is the care with which the framers of the Const.i.tution guarded the right of your father to have an investigation by a body of citizens before he can be brought up for trial for this murder which has been committed.

He cannot be dragged by officers before some court and forced to go hurriedly through a form of trial only to be found guilty. The proceedings must be deliberate and careful. The Const.i.tution guards him against danger of conviction without substantial proof of his guilt.

There are a few minor offenses, sometimes called misdemeanors, and there are violations of city ordinances, in which an indictment is not necessary, but an indictment by a grand jury is necessary whenever the crime is infamous or capital; that is, generally speaking, when punishment would involve imprisonment in the penitentiary or the taking of life by hanging or otherwise. You will understand this better as we consider the trial before the pet.i.t jury.

You may think it is difficult to learn all about grand juries, the number of jurors, and the manner in which they are sworn to perform their duties.

I do not blame you. But bear in mind I am not insisting that you shall learn all these details. Of course the more knowledge we have about these matters the better. But _the important thing_ is that you shall learn that away back more than one hundred and thirty years ago the people of America in framing the Const.i.tution of our country, by written guaranties, made this a government by the people. Knowing that the most sacred thing on this earth is human liberty, they sought to guard it by providing every possible safeguard which would protect the innocent from unjust conviction. They trusted the people. While courts were provided, the power to accuse the humblest human being living under the American flag of a grave offense and bring him before a court for trial was reserved to the people themselves.

Grand juries are merely representatives or agents of the people. As they sit in court they are exercising some of the highest and most important duties exercised by men. Grand jurors and pet.i.t jurors hold in their hands the liberty of their fellowmen.

It is these great truths I wish to impress upon you. I want you to have the knowledge, but more than this, I want you to have the spirit, the spirit of confidence in your government, and the spirit of grat.i.tude that you live in America where the people rule, where the people not only make the law, but enforce it.

ELEMENTARY QUESTIONS

1. In the olden days how could a strong man abuse one suspected of stealing?

2. What would he be compelled to do to-day?

3. Why are the guaranties regarding trials important to you?

4. Who may accuse or charge a person with a crime?

5. Is a person charged with a crime necessarily guilty?

6. What is a grand jury? What is its purpose?

7. How are members of a grand jury servants of the people?

8. Is a search warrant valid if no sworn statement has been filed?

9. What are the rights of the owner, if a search is made without proper warrant or papers?

10. State the guaranty of the Const.i.tution with reference to indictment by a grand jury.

11. Is the session of a grand jury secret or public?

12. Is the defendant present before the grand jury during the investigation?

13. What is meant by "indictment"?

14. What is done when the grand jury returns an indictment?

15. What offenses may be prosecuted without an indictment?

ADVANCED QUESTIONS

A. Discuss the procedure of securing a search warrant?

B. If we had no guaranty of security of property rights what effect would this have with reference to working, earning, and saving?

C. How is the fact that we have a grand jury an evidence of the care with which our government guards our rights?

D. What is a heinous crime?

E. Write a paper on:

Early Abuses of Power in Search and Seizure

Some Interesting Violations of this Right

The Grand Jury as an Evidence That the People Rule

An Account of the Work of One Grand Jury