HOOK, Circuit Judge.
McKinney, who was convicted of using the mails in aid of a scheme to defraud (section 5480, Rev. St. [U. S. Comp. St. 1901, p. 3696]), seeks a reversal because his motion to quash the indictment was overruled and also because, as he says, the evidence at the trial was insufficient.
[ 1 ] His motion to quash, which we will assume was a proper form of remedy, 'stated that the grand jury found the indictment solel)'upon hearsay and incompetent evidence. To support the motion he offered to prove:
“That the said indictment was found by the said grand jury upon the evidence of F. M. Trout, post office inspector, and upon an examination of the letters, and other documents afterwards introduced at the trial of the case, and copied in this bill of exceptions and marked as exhibits herein, which letters and documents were before the grand jury as evidence, and that no other witnesses or evidence was introduced at the hearing of said case before the said grand jury, that the said F. M. Trout, post office inspector, did not testify positively to any facts except that he had investigated the case, talked to the witnesses and to the injured party, Mittie Polk, and that the said F. M. Trout only related to the grand jury his [27]*27conversation to the said witnesses, none of which conversation was in the presence of the defendant or with the defendant.”
The offer of proof was denied by the court. It is manifest that the proof tendered was not as broad as the ground of the motion. The authorship of the letters claimed to have been written by the accused and the genuineness and significance of the other documents were not denied. Even the complaint of the testimony of the post office inspector before the grand jury was partly, if not entirely, that it was not positive. So at the most the contention is substantially that part of the evidence received by the grand jury was incompetent, and all of it in its entirety was legally insufficient for an indictment.
Some courts have held rather broadly that it is proper for a trial court to go behind an indictment and inquire into the character of the evidence upon which the grand jury acted. United States v. Farrington (D. C.) 5 Fed. 343; United States v. Kilpatrick (D. C.) 16 Fed. 765; Royce v. Oklahoma, 5 Old. 61, 47 Pac. 1083. Other courts have taken the contrary view. United States v. Reed, 2 Blatchf. 435, Fed. Cas. No. 16,134; United States v. Brown, 1 Sawy. 531, Fed. Cas. No. 14,671; United States v. Terry (D. C.) 14 Sawy. 49, 39 Fed. 355; United States v. Jones (D. C.) 69 Fed. 973; United States v. Cobban (C. C.) 127 Fed. 713. We think the latter is the better rule, though doubtless in extreme instances a court may do what is needful to prevent clear injustice or an abuse of judicial process. This qualification, however, is far from a recognition of the right of a defendant to compel a review of the evidence upon which he was indicted. In United States v. Farrington, supra, relied on by the accused, it was said:
"It is not intended to suggest that whenever incompetent testimony is received by a grand jury its reception is such error or irregularity as to vitiate their finding nor to hold that tile evidence upon which an indictment is found shall he such as the court would regard as making out a prima facie case against the accused. It is not the province of the court to sit in review of the investigations of a grand jury as upon the review of a trial when error is alleged; but in extreme cases, when the court can see that the finding of a grand jury is based upon such utterly insufficient evidence, or such palpably incompetent evidence, as to indicate that the indictment resulted from prejudice, or was found in willful disregard of the rights of tile accused, the court should Interfere and quash the indictment.”
In United States v. Reed, supra, Mr. Justice Nelson said:
‘•No case lias been cited, nor have we been able to find any, furnishing an authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof, or whether there was a deficiency in respect to any part of the complaint; and the grounds and reasons which we have briefly alluded to account sufficiently for the absence of any such precedent.”
In some states the local practice is affected by statutes and forms no guide to that which obtains in the courts of the United States where the common-law rule prevails.
The constitutional requirement of a presentment or indictment by a grand jury (fifth amendment) does not imply that the proceedings of such a body when lawfully constituted shall he subjected to a re[28]*28view by the trial court at the instance of the accused. Matters affecting the state or integrity of a grand jury as an inquiring and accusing instrumentality, such as the number and qualifications of its members, are proper subjects of investigation; but to go further and hold that its internal proceedings must whenever challenged undergo a judicial scrutiny and test according to the rules of trial evidence is but to place another needless, impeding obstacle in the course of criminal procedure. Holt v. United States, 218 U. S. 245, 31 Sup. Ct. 2,54 L. Ed. 1021, 20 Ann. Cas. 1138. Grand jurors are generally summoned from the nonprofessional walks of life, their investigations and deliberations are not under the direct and immediate guidance óf a judicial officer, and they are rarely informed, much less skilled, in the niceties of legal rules. It would be illogical to test their proceedings by unfamiliar standards. Perhaps in actual practice they seek and receive any evidence which tends to show to their injudicial minds the probability of the commission of a crime and the identity of the perpetrator; but confidence must be reposed somewhere, and public policy requires the presumption that they proceed upon sufficient cause in the formulation of a charge. Their selection is governed by law, they act under the sanction of an oath, and their functions are merely preliminary.
[4] If a trial court must review the investigation of the grand jury to determine whether it received incompetent evidence, it would seem naturally to follow that all the evidence received by such a body must be brought before the court and weighed to determine its legal sufficiency. Under the Constitution a criminal prosecution may be upon either a presentment or an indictment. A “presentment” is an accusation made by the grand jurors upon personal knowledge or observation of the facts instead of upon the testimony of witnesses. Reg. v. Russell, 41 E. C. L. 139; State v. Skinner, 34 Kan. 256, 8 Pac. 420. The summoning of the grand jurors before the trial court and an examination of them as to the source, character, and extent of their knowledge, would certainly be a novel proceeding, but a necessary one if the principle of the contention now made, were sustained.
It is suggested that an indictment upon incompetent evidence violates the clause of the fifth amendment, which provides that no one “shall be deprived of life, liberty or property without due process of law.” The suggestion involves a misconception of the scope and meaning of the due process clause. In Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. 111, 292, 28 L. Ed.
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HOOK, Circuit Judge.
McKinney, who was convicted of using the mails in aid of a scheme to defraud (section 5480, Rev. St. [U. S. Comp. St. 1901, p. 3696]), seeks a reversal because his motion to quash the indictment was overruled and also because, as he says, the evidence at the trial was insufficient.
[ 1 ] His motion to quash, which we will assume was a proper form of remedy, 'stated that the grand jury found the indictment solel)'upon hearsay and incompetent evidence. To support the motion he offered to prove:
“That the said indictment was found by the said grand jury upon the evidence of F. M. Trout, post office inspector, and upon an examination of the letters, and other documents afterwards introduced at the trial of the case, and copied in this bill of exceptions and marked as exhibits herein, which letters and documents were before the grand jury as evidence, and that no other witnesses or evidence was introduced at the hearing of said case before the said grand jury, that the said F. M. Trout, post office inspector, did not testify positively to any facts except that he had investigated the case, talked to the witnesses and to the injured party, Mittie Polk, and that the said F. M. Trout only related to the grand jury his [27]*27conversation to the said witnesses, none of which conversation was in the presence of the defendant or with the defendant.”
The offer of proof was denied by the court. It is manifest that the proof tendered was not as broad as the ground of the motion. The authorship of the letters claimed to have been written by the accused and the genuineness and significance of the other documents were not denied. Even the complaint of the testimony of the post office inspector before the grand jury was partly, if not entirely, that it was not positive. So at the most the contention is substantially that part of the evidence received by the grand jury was incompetent, and all of it in its entirety was legally insufficient for an indictment.
Some courts have held rather broadly that it is proper for a trial court to go behind an indictment and inquire into the character of the evidence upon which the grand jury acted. United States v. Farrington (D. C.) 5 Fed. 343; United States v. Kilpatrick (D. C.) 16 Fed. 765; Royce v. Oklahoma, 5 Old. 61, 47 Pac. 1083. Other courts have taken the contrary view. United States v. Reed, 2 Blatchf. 435, Fed. Cas. No. 16,134; United States v. Brown, 1 Sawy. 531, Fed. Cas. No. 14,671; United States v. Terry (D. C.) 14 Sawy. 49, 39 Fed. 355; United States v. Jones (D. C.) 69 Fed. 973; United States v. Cobban (C. C.) 127 Fed. 713. We think the latter is the better rule, though doubtless in extreme instances a court may do what is needful to prevent clear injustice or an abuse of judicial process. This qualification, however, is far from a recognition of the right of a defendant to compel a review of the evidence upon which he was indicted. In United States v. Farrington, supra, relied on by the accused, it was said:
"It is not intended to suggest that whenever incompetent testimony is received by a grand jury its reception is such error or irregularity as to vitiate their finding nor to hold that tile evidence upon which an indictment is found shall he such as the court would regard as making out a prima facie case against the accused. It is not the province of the court to sit in review of the investigations of a grand jury as upon the review of a trial when error is alleged; but in extreme cases, when the court can see that the finding of a grand jury is based upon such utterly insufficient evidence, or such palpably incompetent evidence, as to indicate that the indictment resulted from prejudice, or was found in willful disregard of the rights of tile accused, the court should Interfere and quash the indictment.”
In United States v. Reed, supra, Mr. Justice Nelson said:
‘•No case lias been cited, nor have we been able to find any, furnishing an authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof, or whether there was a deficiency in respect to any part of the complaint; and the grounds and reasons which we have briefly alluded to account sufficiently for the absence of any such precedent.”
In some states the local practice is affected by statutes and forms no guide to that which obtains in the courts of the United States where the common-law rule prevails.
The constitutional requirement of a presentment or indictment by a grand jury (fifth amendment) does not imply that the proceedings of such a body when lawfully constituted shall he subjected to a re[28]*28view by the trial court at the instance of the accused. Matters affecting the state or integrity of a grand jury as an inquiring and accusing instrumentality, such as the number and qualifications of its members, are proper subjects of investigation; but to go further and hold that its internal proceedings must whenever challenged undergo a judicial scrutiny and test according to the rules of trial evidence is but to place another needless, impeding obstacle in the course of criminal procedure. Holt v. United States, 218 U. S. 245, 31 Sup. Ct. 2,54 L. Ed. 1021, 20 Ann. Cas. 1138. Grand jurors are generally summoned from the nonprofessional walks of life, their investigations and deliberations are not under the direct and immediate guidance óf a judicial officer, and they are rarely informed, much less skilled, in the niceties of legal rules. It would be illogical to test their proceedings by unfamiliar standards. Perhaps in actual practice they seek and receive any evidence which tends to show to their injudicial minds the probability of the commission of a crime and the identity of the perpetrator; but confidence must be reposed somewhere, and public policy requires the presumption that they proceed upon sufficient cause in the formulation of a charge. Their selection is governed by law, they act under the sanction of an oath, and their functions are merely preliminary.
[4] If a trial court must review the investigation of the grand jury to determine whether it received incompetent evidence, it would seem naturally to follow that all the evidence received by such a body must be brought before the court and weighed to determine its legal sufficiency. Under the Constitution a criminal prosecution may be upon either a presentment or an indictment. A “presentment” is an accusation made by the grand jurors upon personal knowledge or observation of the facts instead of upon the testimony of witnesses. Reg. v. Russell, 41 E. C. L. 139; State v. Skinner, 34 Kan. 256, 8 Pac. 420. The summoning of the grand jurors before the trial court and an examination of them as to the source, character, and extent of their knowledge, would certainly be a novel proceeding, but a necessary one if the principle of the contention now made, were sustained.
It is suggested that an indictment upon incompetent evidence violates the clause of the fifth amendment, which provides that no one “shall be deprived of life, liberty or property without due process of law.” The suggestion involves a misconception of the scope and meaning of the due process clause. In Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. 111, 292, 28 L. Ed. 232, in speaking of the fifth amendment the court said:
“The natural and obvious inference is, that in the sense of the Constitution ‘due process of law’ was not meant or intended to include, ex vi termini, the institution and procedure of a grand jury in any case.”
And it applied the same construction to the like clause of the fourteenth amendment limiting the powers of the states. Due process of law within the meaning of the Constitution does not even embrace such an important safeguard as exemption from compulsory self-incrimination (Twining v. New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 [29]*29L. Ed. 97), much less mere rules of procedure like those pertaining to evidence before grand juries.
There is an unfortunate tendency in criminal jurisprudence to raise minor matters to the dignity of substantial rights. The plain safeguards against governmental and private oppression have become by judicial action so embedded in nonessential additions and technical refinements that their true limitations are not always clear, and it not infrequently happens that criminal trials become mere adroit contests in which substance yields to form and the search for truth is diverted to and ends in collateral inquiries. Many an intelligent person accused of crime has been discharged for reasons so abstruse as to be beyond his comprehension, and the triumph has been not of innocence but of ingenious subtlety. Of course fundamental safeguards should not be frittered away, but the growth of judicial construction should also be with due regard to the just rights of society and the practical conduct of trials.
[2] The evidence at the trial was sufficient to convict. It showed the accused contrived a scheme to defraud a woman whom he had promised to marry by working upon her love and anxiety for his welfare, and, by false representations of his critical illness in letters written by him and sent through the mails, to obtain from her remittances of money; that, having contrived the scheme, he used the mails in effecting it. His letters contained representations of great physical agony and distress, of the necessity of a surgical operation to save his life, of the performance of the operation, and of his continued illness, interspersed with repeated importunities for money and “more money.” There was undisputed testimony that for a considerable period while his efforts were being made he was well and was walking about the streets.
[3] There is no merit in the objection made in the motion to quash that the grand jury was illegally constituted because it was drawn from a larger district than that in which the crime was committed. The crime was committed in the Southern judicial district of the Indian Territory before the statehood of Oklahoma. The grand jury was drawn after statehood from the body of the Eastern district of Oklahoma, which, though including the prior territorial district, was of much greater area.
The judgment is affirmed.