The first guaranty in Amendment V to the federal constitution is, "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." A distinction is here recognized between "presentment" and " indictment" which is of no practical value. Either must be the result of action by a grand jury. A presentment is made by a grand jury on its own motion, based on an investigation had at the instance of the members themselves and not upon charges submitted by a prosecuting officer, while an indictment is drawn by a prosecuting officer and approved by the grand jury after hearing the evidence tending to show that the person charged is guilty of the crime named and described in the indictment; but the effect in each case is the same and the distinction need not be further referred to.

The grand jury at common law is a body of persons qualified to act in that capacity and selected in accordance with some established procedure and sworn to discharge fairly and impartially the duty of investigating crimes of which they have knowledge or which are brought to their attention in proper form, and to return indictments against those whom they have reasonable ground to believe to be guilty of such crimes. At common law a grand jury may consist of not more than twenty-three qualified persons, twelve of whom must concur in finding an indictment. In every case, therefore, in which indictment is required it is meant, unless otherwise provided, that such an indictment must have been concurred in by twelve grand jurors. In states having constitutional provisions in this respect similar to that found in Amendment V, the same rule is applicable; but by express constitutional provision a grand jury of less than twelve may be authorized, for there is no restriction in the federal constitution on the action of states in this respect. Indeed it is now provided in some state constitutions that the accused may be put on trial without indictment, some other form of accusation being substituted, and this is no violation of the provisions of the federal constitution. In other words, indictment by grand jury is not essential to due process of law, and is not required in the state courts unless either expressly or by implication the state constitution so provides (Hurtado v. California).