121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887)
George M. Bain, Jr. petitioned the Supreme Court of the United States for a writ of habeas corpus to obtain his release from the custody of Thomas W. Scott, United States Marshal for the Eastern District of Virginia.1 Bain had been convicted in the Circuit Court of the United States for the Eastern District of Virginia of having made a false report or statement as cashier of the Exchange National Bank of Norfolk, Virginia, under section 5209 of the Revised Statutes.2 The petition annexed all necessary proceedings from the order for the impaneling of a grand jury to the final judgment sentencing Bain to five years imprisonment in the Albany penitentiary.3 The marshal returned that Bain was held under the judgment and sentence of a court having competent jurisdiction.4
The indictment contained a single count setting out a report made on March 17, 1885, by Bain as cashier along with three directors of the bank.5 It alleged that the report contained numerous false statements made with intent to injure and defraud the association and other entities and persons. It also alleged intent to deceive any agent appointed by the Comptroller of the Currency to examine the affairs of the association.6 The concluding part of the indictment charged that the defendants made the false statement with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs of the association, and to injure, deceive, and defraud the United States, the association, its depositors, and other banks and persons.7
On December 13, 1886, after the defendants withdrew their pleas of not guilty and submitted a demurrer to the indictment, the court sustained the demurrer.8 Upon motion of the United States, the court ordered that the indictment be amended by striking out the words "the Comptroller of the Currency and" contained therein.9 The case was then severed, Bain pleaded not guilty, and he was tried separately from the other defendants.10
A verdict of guilty was found against Bain.11 After motions for a new trial and in arrest of judgment were overruled, Bain filed his petition for habeas corpus in the Supreme Court, which issued a rule to show cause why the writ should not issue.12
Whether the Circuit Court retained jurisdiction to try and sentence the petitioner after amending the indictment by striking out words without resubmission to the grand jury?13
The Fifth Amendment provides 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.14 An indictment found by a grand jury is indispensable to the power of the court to try a defendant for such a crime, and no part of the body of an indictment may be amended after it has been found and presented by a grand jury, either by order of the court or on the request of the prosecuting attorney, without being re-submitted to the grand jury for approval.15
No. The Fifth Amendment requires that no person shall be held to answer for an infamous crime unless on a presentment or indictment of a grand jury. The Circuit Court sustained the demurrer to the indictment and then, upon motion of the United States, ordered the indictment amended by striking out the words "the Comptroller of the Currency and" from the charging part alleging intent to deceive. Bain was subsequently tried, convicted, and sentenced on the amended indictment without resubmission to the grand jury. The words stricken were part of the specific allegation that the false report was made to deceive the Comptroller of the Currency. It is not for the court to determine whether the grand jury would have found the indictment without that language.16
After the change, the document was no longer the indictment presented by the grand jury, so the court lacked jurisdiction to try and sentence the petitioner under the Constitution.17
The Circuit Court did not retain jurisdiction to try and sentence the petitioner after amending the indictment without resubmission to the grand jury, and Bain is therefore entitled to the writ of habeas corpus.18