have obtained from the books, and to wholly disregard such information in coming to whatever result they might reach. United S ates v. Horn,* 5 Blatch., 102.

§ 2983. Arrest of judgment.-Judgments are arrested for matters apparent on the record. United States v. Moore,* 11 Fed. R., 248.

§ 2984. A fact outside of the record cannot be alleged in arrest of judgment. United States v. Hammond,* 1 Cr. C. C., 15.

§ 2985. A motion in arrest of judgment must be determined upon the allegations of the indictment alone. United States v. Chaffee,* 4 Ben., 330.

$2986. Upon a motion in arrest of judgment for repugnancy in the allegations of the indictment, the court cannot go outside of the indictment to inquire which of the conflicting allegations contains the truth. United States v. Dow,* Taney, 34.

§ 2987. On a motion in arrest of judgment any objection to an indictment is fatal which would have been good upon demurrer. United States v. Goggin, 1 Fed. R., 49.

§ 2985. A motion in arrest of judgment cannot be maintained for an error in fact committed by the grand jury and existing in the indictment. The remedy of the defendant is on the trial by an objection on the ground of variance to testimony offered, or it may be specially pleaded on leave, at the time of filing the general issue. United States v. Stetson,* 3 Woodb. & M., 164.

§ 2989. A motion in arrest of judgment must rest on exceptions in law to what is alleged as a fact. Ibid.

§ 2990. The rules of the court requiring sentence to be deferred to the next term after conviction in order to give opportunity in the mean time for a motion for a new trial or in arrest, a prisoner sentenced at the next term after conviction cannot, at the term following that of the sentence, and in the absence of a motion for a new trial, or in arrest according to the rules, by a motion to vacate the judgment, urge an objection which, if valid and taken in the manner prescribed by the rules, would have arrested the judgment. By omitting to comply with the rules, he is deemed to have waived the right to raise any question proper to be raised in the manner required by the rules. United States v. Malone,* 9 Fed. R.. 897.

§ 2991. At common law a motion in arrest of judgment and for a new trial could not be made at the same time, though it seems that they may be in Kentucky. United States v. Marks, 2 Abb., 532.

§ 2992. A division of opinion may be certified to the supreme court in a criminal case, under section 6 of the act of April 29, 1802, on a motion in arrest of judgment. United States v. Fullerton,* 6 Blatch., 275.

XXIX. FELONIES AND INFAMOUS CRIMES.

SUMMARY-Federal courts not bound by state laws, § 2993.— Infamous crimes defined, § 2994.— Offenses against revenue laws, § 2935. — Proceeding by information, § 2995.— Common law mode of prosecution, § 2997.— Passing counterfeit coin, § 2998. — Omission of property from inventory of bankrupt, § 2999.

§ 2993. The federal courts are not bound to follow state laws on the question whether a given crime is infamous or not. United States v. Wynn, $$ 3000-3005.

$2994. Infamous crimes, within the meaning of the fifth amendment to the constitution, are such as are by statute declared to be so, or declared to be felonies. This is to be determined from the express language of the statute, and not from the punishment inflicted; and if the offense is infamous it can only be prosecuted by an indictment, otherwise an information is proper. Ibid. See § 3016.

2995. An offense against the revenue laws of the United States is not an "infamous crime" in the sense in which that term is used in the constitution. The words "infamous crime" have a fixed legal meaning, and are descriptive of an offense that subjects a person to infamous punishment or prevents his being a witness. The fact that an offense may be or must be punished by imprisonment in the penitentiary does not necessarily make it, in law, infamous. United States v. Maxwell, § 3006-3009.

§ 2896. In cases in which the crime is not capital or infamous the prosecution in the federal courts may, in the discretion of the court, be by information, founded on sworn testimony of a credible person. Ibid. See § 3016.

2997. Although there are no common law offenses against the United States, yet where congress declares an act to be a crime, a person charged with the commission of the same may be prosecuted therefor according to the course of the common law, unless the constitution or congress has otherwise provided. United States v. Block, § 3012–15.

§ 2998. The passing of counterfeit coin, with intent to defraud, in violation of the statute of the United States, is not an infamous crime, within the meaning of the fifth amendment, declaring that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indic ment of a grand jury." The offense may, therefore, be proceeded against by information filed by the district attorney. This offense was not infamous by the law of England at the time of the adoption of the fifth amendment; nor is it infamous when tested by the common law rule that a common law crime involving a charge of falsehood, to be infamous, must be calculated to injuriously affect the public administration of justice. United States v. Yates, § 3010-11.

§ 2939. The crime defined by subdivision 6 of section 5132, Revised Statutes, punishing with imprisonment, with or without hard laber, for not more than three years, the wilful and fraudulent omission of property from the inventory of the effects of a bankrupt, is not an infamous crime. Although it involves the charge of falsehood, yet this falsehood is not calculated to injuriously affect the public administration of justice. This offense may, therefore, be prosecuted by information filed by the district attorney upon leave of the court. United States v. Block, §§ 3012-15.

[NOTES. See §§ 3016-3027.]

UNITED STATES v. WYNN,

(District Court for Missouri: 3 McCrary, 266-277; 9 Federal Reporter, 886–895. 1882.)

Opinion by TREAT, D. J.

STATEMENT OF FACTS.- An information was filed against the defendant under the second clause of section 5469, R. S., which section is as follows: "Any person who shall steal the mails or shall steal or take from or out of any mail or postoffice, etc., any letter or packet; any person who shall take the mail, or any letter or packet therefrom, or from any post office, etc., with or without the consent of the person having custody thereof, and open, embezzle or destroy any such mail, letter or package which shall contain any note, bond, etc.; . . any person who shall by fraud or deception obtain from any person having custody thereof any such mail, letter, etc., although not employed in the postal service, shall be punishable by imprisoment at hard labor for not less than one year and not more than five years."

Under said information the defendant was tried before a jury and found guilty. The court assigned as counsel for the defendant, Messrs. Bakewell and Stewart, who have assiduously attended to the case, and presented to the court, in the light of authorities and argument, their views of the law which should govern United States courts in this class of vexed and undetermined cases. With equal diligence the counsel for the United States have prosecuted the con

troversy.

§ 3000. Infamous crimes, within the meaning of the fifth amendment of the constitution, are such as are so declared or made felonies by act of congress. The first question is, what, under the fifth amendment of the United States constitution, is an infamous crime? and the second, whether the offense charged is within that provision. Within a few years past there has been much discussion of the main question, and several decisions by the United States courts, each of which encounters and endeavors to solve, at least to a limited extent, the many and important difficulties involved. They are too numerous for detailed analysis or review. Many of them fully consider what at common law were infamous crimes, and proceed on the theory that if a like offense exists under United States statutes, it must be considered "infamous" under the federal statutes. Hence, the elaborate review in such cases of the common law and British statutes existing at the date of the United States constitution, and original amendments thereto. Counsel in this case have in the most praise

worthy manner presented the whole line of English decisions and authority on this subject, which, if conclusive or persuasive, would have an essential bearing on the question. At the date of the United States constitution there were no federal offenses except, impliedly, treason. The fifth amendment refers to "capital offenses and other infamous crimes." Were those offenses which at that time were capital or infamous at common law to be considered as within the purview of that amendment, if thereafter congress chose to specify offenses against the United States, and did not denounce capital or infamous punishment on conviction thereof? Of the many offenses at common law, and by British statutes, which were capital, very few were even made federal offenses or punishable capitally. Hence, in this particular, it must be conceded that there was not embraced in the purview of the constitution any offenses denominated "capital" except those which might thereafter be so declared by congressional enactment. If this be so, why should a different rule obtain as to the so-called "infamous crimes" designated in the same amendment? The rule governing the two should be the same.

If regard is had to the then existing common law and British statutes, as fully explained in the cases cited, it may be considered as settled that the treason, felony and crimen falsi were infamous. To every student of legal history it is well known that many offenses now considered trivial, comparatively, were in England denominated felonies, and once made capital, while many other and graver crimes were designated misdemeanors, and followed by milder punishments. As at the date of the constitutional amendments it remained for congress to name offenses and prescribe punishments therefor, is it to be held that every offense by it defined must take either its classification or punishment ex necessitate from the English system, or solely from congressional provisions? Originally a felony was an offense which was followed by forfeiture, yet a century ago the English courts repudiated that test, and so have the American courts since. It is said that it is not the grade of the punishment, but the nature and quality of the offense, which must determine its classification. If so, the rule is very uncertain. Many offenses comparatively trivial were felonies, and punishable at common law with death and forfeiture, which at the present time are not felonies or so punishable either in England or the United States. It must be observed that the constitutional amendment under review does not use the word "felony." True, at common law, all felonies were infamous, but as the constitution did not adopt the penal code of the common law, and as consequently there are no common law crimes against the United States, how does it happen that whatever was in common law a felony comes to be infamous when an offense of a like nature is declared to be an offense but not a felony or infamous-against the United States, punishable only as the latter had enacted?

Although forfeitures ceased to be the consequence of most felonies before the adoption of the United States constitution, yet the designation "felony" remained. Still, are we to hold that all felonies under the United States constitution and statutes are to be held infamous, notwithstanding their position. before the law had been essentially changed? Section 5326, Revised Statutes, declares that "no conviction or judgment shall work corruption of blood or any forfeiture of estate." Again, under the head of crimen falsi, offenses were infamous which were followed with disqualification as witnesses or jurors. Many offenses which, under the English system, involved such consequences do not do so now under many American codes, and especially under the federal

laws. So far as observation goes there are but two offenses expressly denounced by federal statutes as infamous within the meaning of the common law definition, yet there are disqualifications for offices in a few others. Shall all offenses, then, involving moral turpitude, be held technically infamous? What shall be the test, the punishment, or the quality of the act? Most modern jurists agree that the nature of the punishment is not the criterion, and yet many of them attempt to draw a sharp distinction at the walls of the penitentiary. If the nature of the punishment does not affect the question, why is it that they make imprisonment in the penitentiary infamous and not imprisonment in the common jail? All familiar with federal statutes and practice know that persons convicted can, in many instances, be sentenced to imprisonment, with or without hard labor, either in a jail or penitentiary.

It is very difficult to reconcile the cases, or to reach a definite conclusion therefrom. In this circuit it has lately been held that the punishment does not give character to the offense, although the later decisions are not in accord with what theretofore had been held otherwise. If the extent or place of punishment does not affect the question, how is it that the walls of the penitentiary can make a dividing line between infamous and non-infamous crimes? It must be confessed that the rulings of this circuit for more than twenty years on this subject were overthrown by the Maxwell and other cases, and properly so. Hence, the test is not where the criminal may be imprisoned, nor what at common law would have been the designation of the offense, but what the federal statute prescribes. It is very difficult to understand logically what rule should be observed, in the light of many decisions. Shall the courts pronounce that every felony is infamous, merely because the United States statute denominates a specific offense a felony, when no such offense was known to the common law, and consequently could not be infamous when the constitution was adopted? On the other hand, if congress prescribes an offense and does not denominate it a felony, and yet the very nature of the offense is one of moral turpitude, but the punishment not infamous, can the court say it is infamous, to be pursued only through indictments?

It will be seen that great embarrassments exist, which have perplexed the courts, arising not from the constitutional provision alone, but from United States statutes. Only two offenses have denominated expressly against them disqualifications which are within the technical definition infamous, unless all felonies are to be so considered, and certain offenses under the election laws pertaining to disqualifications for office. It may be very difficult to reconcile cases with right reason on this subject, and such an effort will be foreborne. Without criticising such cases, and analyzing them, it may be wiser to state generally the conclusions reached, and to give the elemental thoughts on which such conclusions rest. As at the date of the constitution there were no offenses under the federal law, with the possible exceptions named, is not the character of each offense thereafter prescribed to be determined solely by the statute? Within recognized rules a felony is infamous, and in the absence of such a designation the offense is not a felony. Hence, if an offense against the United States is defined, and the same is not denominated a felony, and no infamous punishment is denounced, how can a court decide that offense to be without the constitutional provision? Was it the purpose of the constitution to make all offenses that congress might thereafter prescribe, to take their quality, not from congressional legislation, but from the common law? If so, was not the power of congress restricted as to offenses not known to the common law? So

far as their penal consequences might extend,- that is, if congress enacted that certain defined acts should be an offense against the United States, and attached thereto consequences which were infamous, were they not to be so, although there was no common law rule on the subject? In other words, could not congress declare what offenses it enacted infamous or non-infamous, as it may deem wise?

$3001. Reference to common law for definition of terms.

This suggestion leads up to the main inquiry, whether congress was inhibited from making any offense a felony or infamous which the common law or British statutes did not recognize as such. The mere statement of the proposition shows its absurdity, for none of the common law or statutory offenses (British) were United States offenses. Whatever congress might enact thereafter would take its character, quality and punishment solely from the congressional enactment. Although courts would look for the definition of terms used, if they were common law terms, to the common law, yet they could not enlarge the punishment beyond what the federal statutes prescribe. Similar offenses may have been capital under the British law. Yet congress may have denounced therefor imprisonment merely for a limited term, or merely a fine. How, then, is the offense to be designated, according to the federal statutes, which must alone govern, or according to the common law, which is no part of the federal system? Without pursuing further this abstract line of thought, which leads to a reductio ad absurdum, it may be well to state succinctly the views of this court. At the adoption of the United States constitution, and the amendinents thereto, inasmuch as no federal offenses had been defined, it was prescribed that whenever congress should declare certain acts an offense and attach thereto capital punishments or infamy, the alleged offender should not be brought to trial except after indictment.

§ 3002. Interposition of a grand jury necessary, when.

The nature, functions and protective duties of a grand jury have been often defined and enforced by this court. But the question under consideration is, When is the interposition of such a jury essential? It may be stated that the following rules should prevail: (1) In the absence of a federal statute there is no offense cognizable by United States courts. (2) When congress has declared an offense, it is what congress has designated it, and not what any other system of jurisprudence or foreign statutes may prescribe. (3) If the congressional statute prescribes infamy the offense is infamous. (4) If congress does, without express provisions as to infamy, make the offense & felony, the offense must be prosecuted as infamous and by indictment. Under this head it must be observed that common law felonies, or offenses of like nature, are not within the purview of the constitution unless congress so enacts. The many offenses under the British law, with their barbarous consequences, were not, and in some instances (notably, treason) could not be, federal law. By recognized decisions and definitions all felonies were infamous, but as there were no felonies here until congress so enacted, whatever offenses congress denounced, not as felonies, but as misdemeanors, could not fall within the description of infamous unless, independent of the technical definition of "felony," they fell within the rule of infamous punishments, so expressly denounced; or possibly, from the quality or nature of the offense, as crimen falsi. As to the latter, this court holds. that the federal statute must alone prevail. (5) If there are no felonies under the federal law except what the federal statutes so denominate, what other federal offenses are infamous? As has been already stated, there are only two