a falsehood of any kind or degree. On the contrary, the nature and purpose of the falsehood must be such as makes it probable that the party committing it is void of truth and insensible to the obligation of an oath. And even this is not enough; it must also appear that the falsehood is calculated to injuriously affect the public administration of justice, as perjury or the suppression of tes timony. Tried by this test, I do not think that this crime can be considered infamous, or within the category of the crimen falsi at common law. It has also been suggested that the proceeding by information, not having been specially author. ized by congress, will not lie in any case in the national courts. Until the supreme court decides otherwise, the case of United States v. Waller, supra, must be considered sufficient authority in this court for the prosecution of crimes not "capital or otherwise infamous" by information. The case of United States v. Cultus Joe, Int. Rev. Rec., 57, is the only one I know to the contrary, while the case of United States v. Shepard, supra, is unqualifiedly in support of the authority to entertain the proceeding. There can be no doubt but that at common law from the most ancient time all misdemeanors, unless it was misprision of treason, might be prosecuted by information filed by the attorney-general, or the master of the crown office. 3 Black., 308; 4 Ba. Abr., 402. § 3015. In the absence of constitutional and statutory provisions, the procedure in criminal cases in United States courts is regulated by common law principles. The ruling in United States v. Joe, supra, is based upon the theory that the common law as to procedure or remedy is not in force in the United States. But this seems contrary to the authorities and the practice. In Kneass v. Schulkill Bank, 4 Wash, 107, it was held that where an act of congress gives a right without providing a specific remedy, the latter "may be drawn from the abundant stores of the common law." And although there are no common law crimes in the United States, yet where congress declares an act 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. In discussing this subject, Conkling, in his treatise, says: "The national courts are unquestionably to look to the common law, in the absence of statutable provisions, for rules to guide them in the exercise of their functions in criminal as well as civil cases." Conk. Treat. (3d ed.), 167. And again, at p. 613, he says: "While no resort can be had to the common law as a source of criminal jurisdiction, it nevertheless furnishes the proper, and, as the state laws are here inoperative, the only, guide in the absence of constitutional or statutory regulations, as to the principles and rules of procedure in the exercise of this branch of jurisdiction." And such is substantially the ruling of the supreme court in United States v. Reid, 12 How., 365 (§§ 2694-99, supra). A casual remark in Story's Com., vol. 2, sec. 1786, to the effect that the proceeding by information is rarely used in America, and had not, in the case of mere misdemeanors, been formally put into operation by any positive authority of congress, ought not to be considered as bearing materially upon the question. Besides, the very prohibition contained in said fifth amendment, by a strong and almost necessary implication, asserts that the proceeding by information, in all cases not "capital or otherwise infamous," was well known and lawful. Again, congress by the enactment of section 32 of the act of April 30, 1790 (sec. 1044, R. S.), and section 3 of the act of March 26, 1804 (sec. 1046, R. S.), has recognized the right to proceed in the national courts in a cer tain class of crimes by information. Taken together, these sections provide that no person shall be prosecuted for any "offense" or "crime" not capital, "unless the indictment is found, or the information instituted," within a certain time after the commission of such offense or crime. By section 8 of the act of May 31, 1870 (sec. 1022, R. S.), congress formally recognized the right to prosecute all crimes against the elective franchise and the civil right of citizens that are not infamous by information. There is no good reason why this proceeding, when confined to mala prohibita, should be regarded at this day with disfavor. Within the past quarter of a century the proceeding has been substantially revived in many of the states as a substitute for the inore cumbersome, costly and dilatory one by a grand jury. Without it, a defendant would often be compelled to remain in prison awaiting the coming of a grand jury for a period of time longer than that imposed as a punishment for the crime with which he may be charged. The proceeding is a cheap and convenient one, and when allowed only upon leave of the court, and the information is made upon oath and the official responsibility of the district attorney, it is not any more likely to be abused or become oppressive than accusations found by a grand jury. Let the information be filed. § 3016. When an information will lie -- Infamous crimes.- The institution of a proceeding against a criminal by criminal information filed by the district attorney is unknown in the federal courts, except in one case specially provided by law of congress, and is improper in cases of selling liquors to Indians. United States v. Cultus Joe,* 15 Int. Rev. Rec., 57. See §§ 2994, 2996. § 3017. Offenses under section 5508, Revised Statutes, must be presented by a grand jury, and cannot be tried upon information. United States v. Butler,* 4 Hughes, 512. $3018. The constitution of the United States, to which the territorial legislatures must conform, does not inhibit prosecution by information when the offense falls below the degree of capital or infamous. The keeping of a gambling-house is not infamous, and an act of a territorial legislature authorizing the prosecution of the offense of keeping a gambling-house, by information filed by the district attorney, is valid. Chase v. The People,* 2 Colo. T'y, 509. § 3019. A conspiracy to make counterfeit coin may be prosecuted by information. The crime is not infamous. United States v. Burgess,* 3 McC., 278; S. C., 9 Fed. R., 896. § 3020. No conspiracy at common law was infamous, except such as pertained to the subversion of justice. A conspiracy to cause a felony to be committed would not be a felony or infamous, unless so declared by statute. Ibid. § 3021. To make a penalty infamous, it must pronounce against the offender a degradation from his civil rights. In the absence of such a forfeiture, the crime will not be deemed legally infamous unless it is so expressly pronounced. United States v. Cross,* 1 MacArth., 149. § 3022. The infamous character of an offense is not to be determined by the popular sense of the word infamy, but a crime, to be infamous, must, in some form, be so declared by law. Ibid. § 3023. Petit larceny was not an infamous crime at the time of the passage of the act of, January 17, 1870, creating the police court of the District of Columbia, nor of the act of February 22, 1867, for the punishment of certain crimes in the District of Columbia. Ibil. § 3024. Under the act of congress of July 13, 1866, providing that "all fines, penalties and forfeitures which may be imposed or incurred shall be, and may be, sued for and recovered, when not otherwise provided, in the name of the United States, in any proper form of action, or by any appropriate form of proceeding before any district or circuit court," offenses arising under the internal revenue laws may be prosecuted by information filed by the district attorney. These offenses being misdemeanors only, this practice is not contrary to the fifth amendment, declaring that "no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury." United States v. Ebert,* 1 Cent. L. J., 205. § 3025. The district courts of Washington Territory, although courts of general jurisdiction in one sense, yet in the exercise of their jurisdiction, and the settlement of their practice as circuit and district courts of the United States, are obviously subject to like limitations with the circuit and district courts themselves. If the circuit and district courts have author ity to proceed in criminal cases by information, then that authority must spring from the constitution and statutes of the United States, either expressly or by necessary implication. Such a power is nowhere expressly granted. The fifth amendment, declaring that "no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury," the only provision on the subject, does not warrant any other implication than that congress is free to provide, by any mode it sees fit, for the prosecution of crimes not capital or infamous. The acts of congress not having authorized such a proceeding either expressly or by implication, except for recovery of penalties in revenue cases, it cannot be exercised by the courts of the United States, nor by the courts of Washington Territory. United States v. Cultus Joe,* 4 Ch. Log. N., 105. § 3026. Felonies.- Tested by the common law, the word felony, when used in an act of congress, has no very exact and determinate meaning, and can apply to no cases in this country except treason, where limited forfeiture of estate is allowed. In most of the states the term felony, by force of state legislation, has become to mean any offense the punishment of which is imprisonment in the penitentiary. But the federal courts cannot look to state laws, in the criminal jurisprudence of the United States, for the characteristic elements which constitute an offense; nor to the common law; nor even to the character of the punishment. There is no doubt, however, that offenses are felonies when so declared to be by congress, and the defendant in such cases is entitled to ten challenges under section 819, Revised Statutes. United States v. Coppersmith, 2 Flip., 546 (§ 1920–24). §3027. A felony at common law was a crime which was punished capitally, and an infamous crime was one upon conviction of which the defendant was incompetent as a witness. Under the laws of the United States a crime is not a felony or infamous because punishable by imprisonment in the penitentiary, but its character is to be determined by the rules of the common law. United States v. Shepard, 1 Abb., 431 (§§ 3195-99). XXX. PRINCIPAL AND ACCESSORY. SUMMARY-Agreement of district attorney not to prosecute accomplice, § 3028. § 3028. The district attorney has no authority to contract with an accomplice of an accused on trial, that if he will testify fully and fairly in such prosecution against his associate in guilt he shall not be prosecuted for the same offense. If the witness performs his part of such an agreement, he cannot plead its performance in bar of any indictment against him, nor avail himself of it upon his trial. Testimony of this character given by an accomplice gives him a mere equitable title to the mercy of the executive, which rests on usage and the good behavior of the accomplice. And rights so acquired can only come before the court by way of an application to put off the trial in order to give the prisoner time to apply to the executive for the pardon to which he is equitably entitled. Whisky Cases, § 3029–30. [NOTES.-See $$ 3031-3055.] WHISKY CASES. (a) (9 Otto, 594-606. 1878.) ERROR to U. S. Circuit Court, Northern District of Illinois. STATEMENT OF FACTS.- Accomplices in guilt, not previously convicted of an infamous crime, when separately tried are competent witnesses for or against each other; and the universal usage is that such a party, if called and examined by the public prosecutor on the trial of his associates in guilt, will not be prosecuted for the same offense, provided it appears that he acted in good faith and that he testified fully and fairly. Where the case is not within any statute, the general rule is that if an accomplice, when examined as a witness by the public prosecutor, discloses fully and fairly the guilt of himself and his associates, he will not be prosecuted for the offense disclosed; but it is equally clear that (a) These were civil cases— debt, to recover a doubl› internal revenue tax, and informations to forfeit certain property. This head seemed the most appropriate, however, under which to publish the opinion, which is devoted to a discussion of the rights of an accomplice who has testified under an agreement with the district attorney that no further proceedings should be commenced against him. he cannot by law plead such facts in bar of any indictment against him, nor avail himself of it upon his trial, for it is merely an equitable title to the mercy of the executive, subject to the conditions before stated, and can only come before the court by way of application to put off the trial in order to give the prisoner time to apply to the executive for that purpose. Rex v. Rudd, 1 Cowp., 331. Sufficient appears to show that the following are the material proceedings in the several cases: 1. That the first two were actions of debt commenced in the circuit court to recover the double internal revenue tax imposed, as fully set forth in the respective declarations. 2. That the other six cases are informations filed in the district court to forfeit the properties therein described for acts done in violation of the internal revenue laws. Service was made in the first two cases, and the defendants appeared and pleaded the general issue and the special plea set forth in the transcript. Issue was joined upon the first plea, and the United States demurred to the special plea. Hearing was had, and the court overruled the demurrer and gave judgment for the defendants. Like defenses in the form of answers or pleas were filed in the other six cases commenced in the district court, to which the United States demurred; but the district court overruled the demurrers, and finally rendered judgment in each case for the defendants. Prompt steps were taken by the district attorney to remove the cases into the circuit court, where the respective judgments rendered by the district court were affirmed. Suffice it to say in this connection, without entering into detail, that the United States sued out a writ of error in each case and removed the same into this court. Both parties agreed that the questions presented for decision are the same in each case, in which the court here fully concurs. Two errors are assigned as causes for reversing the judgment, which present very clearly the matters in controversy as discussed at the bar. 1. That the plea or answer set up as defense is bad because it is too general and does not set forth the supposed agreement in traversable form. When filed, the first assignment of error also objected to the plea or answer that it did not designate the officer who made the alleged agreement, which was plainly a valid objection to it; but that was obviated at the argument, it being conceded by the United States that the plea or answer should be understood as alleging that the supposed agreement was made by the district attorney. 2. That the plea or answer is bad because the officer representing the government in these prosecutions had no authority to make the agreement pleaded, and that the court cannot enforce it, as it is void. As amended, it requires no argument to show that the plea or answer cannot be understood as alleging that the president was a party to any such agreement, as the distinct allegation is that it was made by the district attorney; nor could any such implication have arisen even if the pleading had not been amended, as it is settled law that suits of the kind to recover municipal forfeitures must be prosecuted in the subordinate courts by the district attorney, and in this court, when brought here by appeal or writ of error, by the attorney-general. Confiscation Cases, 7 Wall., 454. Suppose the plea to be amended as stipulated at the argument, the first question is, whether as amended it sets up a good defense to the several actions. Taken in that view, it alleges in substance and effect that the district attorney promised the defendants that if they would testify in behalf of the United States frankly and truthfully when required, in reference to a conspiracy among certain government officials in the internal revenue service, and other parties, then known to exist, whereby the honest manufacture of distilled spirits and the collection of the tax thereon had been rendered practically impossible, and would plead guilty to one count in an indictment then pending against them in said district court, and would withdraw their pleas in certain condemnation cases then pending against their property in said district court, for the purpose only of insuring their good faith in so testifying on behalf of the United States, then the United States would recall any and all assessments under the internal revenue law made against them, and that no more assessments under said law should be made against them; that no more proceedings against them should be commenced on account of violations of the internal revenue laws then passed, and that no penalties or forfeitures should in any manner be enforced or recovered against them or their property; that all suits for penalties and for forfeitures then pending against them and their property should be dismissed, and that full and complete indemnity should be granted to them as the said claimants. Complete performance on their part is alleged by the claimants, and they allege that the pending suits are for the condemnation and confiscation of their property, which was seized by the United States on the ground of the alleged violation of the internal revenue law, prior to entering into the said agreement. Assessments made against the claimants or their property are to be recalled, and they and their property are to be free of internal revenue taxation. Proceedings pending against them for violations of the internal revenue laws are to be dismissed and no more are to be instituted, and the claimants are promised full and complete indemnity, civil and criminal, if they will consent to testify. Considering the scope and comprehensive character of the supposed agreement, it is not strange that the district attorney deemed it proper to demur to the plea. He took two objections to it; but the court will examine the second one first, as, if that is sustained, the other will become immaterial. §3029. A district attorney has no authority to contract with an accomplice that if he will testify against others he shall not be himself prosecuted nor subjected to penalties. Waiving for the present the question whether the district attorney may contract with an accomplice of an accused person on trial, that if he will testify in the case his taxes shall be abated, or that he and his property shall be exempt from internal revenue taxation, the court will consider in the first place whether the district attorney, as a public prosecutor, may properly enter into an agree ment with such an accomplice, that if he will testify fully and fairly in such a prosecution against his associate in guilt he shall not be prosecuted for the same offense; and if so, whether such an agreement, if the witness performs on his part, will avail the witness as a defense to the criminal charge in case of a subsequent prosecution. Considered in its full scope, the agreement is that in consideration of the defendants testifying against their co-conspirators who were indicted for defrauding the revenue, they, the defendants, should have a full and complete discharge, not only from all criminal liability, but from all penalties and forfeitures they had incurred, and from liability for their internal revenue taxes which they had fraudulently refused to pay, giving them full and complete indemnity, civil and criminal, for all their fraudulent and illegal acts in respect to the public revenue. Courts of justice every where agree that the established usage is that an accomplice duly admitted as a witness in a criminal prosecution against his associates in guilt, if he testifies fully and fairly, will not be prosecuted for the same offense, and some of the decided cases and standard text-writers give |