by John Marshall Harlan

“ The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view, as well as of the relations which the accused holds to the public as of the end of human punishment. The natural life, says Blackstone, 'cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow creatures, merely upon their own authority.' 1 Bl. ”

“ The constitution requiring that the grand jury should find the indictment, neither the court, the prosecuting officer, nor any one else has power to create the necessary averments to make that an indictment which otherwise would be no indictment at all. ”

“ It is impossible from the mere description of the title-page of the paper, and the averment that it contains 12 pages, and was published on a particular day, to in any way ascertain what part, whether pictures or print, contained in the 12 pages, was acted on by the grand jury. In other words, using the identification of the paper given by the indictment, the mind looks in vain for any reference to the particular things, found in the paper, which were considered as within the statute. ”

“ The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be disposed with or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods. ”

“ The legislative authority not being competent to authorize an amendment so as to convert a void into a valid indictment, surely a prosecuting officer can have no such power.
The indictment being, as we think, fatally defective in failing to state an offense, which defect could not be supplied in the court below, and cannot be so supplied here without converting an absolutely void into a valid indictment, and thus violate the constitution, which secures the accused an immunity from prosecution except upon presentment by a grand jury, the verdict and judgment should be reversed. ”

“ Girardin, 1 Mich. 90, 91, which was an indictment for printing and publishing a certain paper described by its title, and characterized as wicked, obscene, etc., the court said: 'There is another rule, as ancient as that contended for by the counsel for the prisoner, which forbids the introduction in an indictment of obscene pictures and books. Courts will never allow their records to be polluted by bawdy and obscene matters. ”

“ People, 89 Ill. 441; Fuller v. People, 92 Ill. 182; State v. Brown, 27 Vt. 619; State v. Griffin, 43 Tex. 538; State v. Smith, 17 R. I. 371, 22 Atl. 282; Com. v. Dejardin, 126 Mass. 46; Com. v. Wright, 139 Mass. 382, 1 N. E. 411; Com. v. McCance (Mass.) 41 N. E. 133; U.S. v. Bennett, 16 Blatchf. 338, Fed. Cas. No. 14,571. It was with reference to this well-settled view that in Grimm v. U.S., 156 U.S. 604, 15 Sup. Ct. 470, in speaking of sending obscene matter through the mails, the court said (page 608, 156 U.S., and page 470, 15 Sup. Ct.) ”