ich the Court is authorized
to award such punishment; the sentence actually imposed is immaterial.
When an accused is in danger of being subjected to an infamous
punishment if convicted, he has the right to insist that he shall not be
put upon his trial, except on the accusation of a grand jury.[5] Thus,
an act which authorizes imprisonment at hard labor for one year, as well
as deportation, of Chinese aliens found to be unlawfully within the
United States, creates an offense which can be tried only upon
indictment.[6] Counterfeiting,[7] fraudulent alteration of poll
books,[8] fraudulent voting,[9] and embezzlement[10] have been declared
to be infamous crimes. It is immaterial how Congress has classified the
offense.[11] An act punishable by a fine of not more than $1,000 or
imprisonment for not more than six months is a misdemeanor, which can
be tried without indictment, even though the punishment exceeds that
specified in the statutory definition of "petty offenses."[12]

A person can be tried only upon the indictment as found by the grand
jury, and especially upon its language found in the charging part of the
instrument. A change in the indictment deprives the court of the power
to try the accused.[13] There is no constitutional requirement that an
indictment be presented by a grand jury in a body; an indictment
delivered by the foreman in the absence of the other grand jurors is
valid.[14]

The words "when in actual service in time of war or public danger" apply
to the militia only. All persons in the regular army or navy are subject
to court martial rather than indictment or trial by jury, at all
times.[15] The exception of "cases arising in the land or naval forces"
was not aimed at trials of offenses against the laws of war. Its
objective was to authorize trial by court martial of the members of the
Armed Forces for all that class of crimes which under the Fifth and
Sixth Amendments might otherwise have been deemed triable in the civil
court. Either citizen or alien enemy belligerents may be tried by a
military commission for offenses against the laws of war.[16]

DOUBLE JEOPARDY

By the common law not only was a second punishment for the same offense
prohibited, but a second trial was forbidden whether or not the accused
had suffered punishment, or had been acquitted or convicted.[17] This
clause embraces all cases wherein a second prosecution is attempted for
the same violation of law, whether felony or