ing the place of the imprisonment in the discretion of the court. Is it, then, to be held as a legal proposition that imprisonment in the penitentiary, which is often at the discretion of the court, makes the offence infamous, whereas if, in its discretion, the imprisonment were ordered to be in the common jail it would be non-infamous? Again, if the imprisonment ordered is for more than a year, although hard labor is not denounced, yet the sentence may be to the penitentiary. Shall such shifting, discretionary, and arbitrary rules settle the important constitutional question presented? That is, if the court chooses to make the place of imprisonment, on conviction, in the penitentiary, the offence is infamous; otherwise, not. Suppose trial and conviction had on an information under any of the many statutes, where it is in the discretion of the court to sentence to the common jail or to the penitentiary, or to fine and imprisonment, or imprisonment alone, with or without hard labor, etc., and the court in its discretion sentences to the penitentiary, does the offence thereby become infamous; whereas, if the sentence had been to the jail or to payment of a fine it would have been non-infamous? But all are of the opinion that it is not, as a general rule, the punishment which determines the nature of the offence, and if it were not so the absurd result would follow that in the cases above supposed the character of the offence would not depend on its intrinsic quality, but on the discretion of the judge who passes sentence. These extreme illustrations are presented in order to show the importance of having some well-defined rules which all can understand. It has been deemed better not to pass through a careful analysis of the many cases cited, or to review the same, but to present the subject with its attendant difficulties. The conclusions reached are that under the United States constitution and statutes there are no infamous crimes except those therein denounced as capital, or felonies, or punished with disqualification as witnesses or jurors. If congress makes an offence infamous, it must be prosecuted through indictment; if it makes it non-infamous, it can be pursued through information. This necessarily follows from the fact that under the United States constitution there are no criminal offences other than what congress prescribes, and unless it declares directly or inferentially that an offence is infamous it must be pronounced otherwise. There is no other safe or consistent rule. A reference, therefore, to the statute, cited at the beginning of this opinion, makes it clear that the offence charged is not infamous within the rules herein stated. The fact that imprisonment "at hard labor" is denounced does not make the offence infamous within the purview of the constitution, and consequently the case was rightly tried on information. The motion in arrest is overruled. The cases cited and examined are appended: Wheaton v. Peters, 8 Pet. 591; U. S. v. Reid, 12 How. 364; 1 Kent, Comm. *336, 337; Coke, Litt. 6, a b; Blackstone, *370; Phil. Ev. vol. 1, p. 22, note; 1 Chit. Crim. Law, *600, *601, p. 599; Phil. Ev. 23, note; People v. Whipple, 9 Cow. 707; Clark's Lessees v. Hall, 2 Harris & McHenry, 378; People v. Herrick, 13 Johns. 82; Cushman v. Loker, 2 Mass. 106; 1 Stark. Ev. 94, 95; 2 Hale, 227; 1 Bish. Crim. Law, §§ 743, 580, 581, 584, 621, 974; 1 Greenl. Ev. §§ 372, 373, p. 15; Pendock v. Mackender, 2 Wilson, 18; Coke, Litt. 391a, *6b, note 1; 4 Bl. Com. 94, 95, 230; 1 Russell, Crimes, (Graves' Ed.) 44, 46, 47; Rex v. Priddle, Leach, 442; 2 Hale, P. C. 277; Rex v. Davis, 5 Mod. 75; 3 Wilson's Works, 371, 377; 1 Hale, P. C. c. 43, p. 503; Willis, 665; State v. Gárdner, 1 Root, (Conn.) 485; Com. v. Keith, 8 Met. (Mass.) 531; Lyford v. Farrar, 11 Foster, (N. H.) 314; U. S. v. Maxwell, 3 Dill. 275, 278; In re Truman, 44 Mo. 181; Fox v. State, 5 How. 410, 438; Moore v. State, 14 How. 13; U. S. v. Shepard, 1 Abb. 436, 440; U. S. v. Magill, 1 Washb. 464, 465; U. S. v. Hawthorne, 1 Dill. 422; State v. Keyes, 8 Vt. 66, 65; 5 Watts & Serg. 342; U. S. v. Hudson, 7 Cranch, 34; U. S. v. Lancaster, 2 McLean, 431, 433; U. S. v. Wiltberger, 5 Wheat. 76, 93, 96; U. S. v. New Bedford Bridge, 1 Wood & M. 401; State v. Stephenson, 2 Bailey, 334; U. S. v. Wilson, 4 Blatchf. 435; Sergeant's Coast Law, 345; U. S. v. Coolidge, 1 Wheat. 415; U. S. v. Beavons, 3 Wheat. 336; U. S. v. Burr, 4 Cranch, 500; Marhney v. Madison, 1 Cranch, 176; 4 Tucker's Blackstone, No. 10 of appendix; Conkling's Treatise, 83; U. S. v. Cross, 1 McArthur, 149; U. S. v. Coppersmith, 4 FED. REP. 198; U. S. v. Sheperd, 1 Hughes, 520; U. S. v. Block, 4 Sawy. 212; U. S. v. Yates, 6 FED. REP. 861; U. S. v. Baugh, 1 FED. REP. 784; U. S. v. Waller, 1 Sawy. 701; Whart. Crim. Law, (3d Ed.) 354 et seq.; 11 Am. Jur. and other authorities cited; U. S. v. Okie, 5 Blatchf. 516; U. S. v. Clark, Crabbe, 584; U. S. v. Golding, 2 Cranch, 212; U. S. v. Patterson, 6 McLean, 467, 468; U. S. v. Mills, 7 Pet. 138; U. S. v. Clayton, 2 Dill. 226; Wilson v. State, 1 Wis. 189; Com. v. Barlow, 4 Mass. 439; Com. v. Macomber, 3 Mass. 257; Star Route Cases, unreported. UNITED STATES v. BURGESS.* (District Court, E. D. Missouri. January 30, 1882.) 1. CONSTITUTIONAL LAW-INFAMOUS CRIMES-CONSPIRACY TO MAKE COUNTERFER COIN-PRACTICE-INFORMATION. A conspiracy to make counterfeit coin is not an infamous crime, within the meaning of article 5 of the amendments to the United States constitution, and may be prosecuted by information. Motion in Arrest of Judgment. Drummond & Smith, for the United States. Paul Bakewell and E. M. Stewart, for defendant. TREAT, D. J. An information was filed against the defendant for conspiracy to make counterfeit coin, whereupon a trial was had, and conviction followed. Many of the points considered in the case of Wynn, ante, 886, are involved in the question now presented. So far as the views of the court are stated in that case, they need not now be repeated. Under the common law a conspiracy was not infamous unless it was for the subversion of justice, by the obstruction of its adminis tration through perjury, subornation of perjury, spiriting away of witnesses, etc. Hence, if a like offence is by congressional enactment denounced a crime, without attendant consequences involving infamy, the same can be prosecuted by information. If the common-law rule were to obtain, the crime charged would not be infamous, inasmuch as the alleged conspiracy, under section 5440, Rev. St., is not to subvert or obstruct the administration of justice through its administration in the courts. It has been forcibly urged that a conspiracy to commit a felony which, if committed, would fall within the rule of crimen falsi, should, under the statute (5440) as to overt acts, be held to come within that rule. By what has been said in the case of Wynn, no such rule would prevail. If congress denounces a specified offence a felony it is so; not because like offences were such under the English law, but because congress chose so to make it. In this case, to commit which offence the conspiracy is charged, strange to say, the acts of congress have been frequently changed. In England there was, for technical. reasons, a marked distinction between false coining and passing false coins. In the early statutes of the United States, counterfeiting coin was declared to be a felony, but in the re-enactment of these statutes Reported by B. F. Rex, Esq., of the St. Louis bar. subsequently the words "shall be adjudged guilty of a felony" were dropped. Hence, what was once a felony by force of the United States Statutes has ceased to be so through subsequent legislation. Independent thereof it must be considered that no conspiracy at common law was infamous except such as pertained to the subversion of justice. The conspiracy charged, for which the defendant has been found guilty on information, was not a conspiracy even to cause a felony to be committed, or to subvert the administration of justice. Still, under the rulings in Wynn's Case, if the conspiracy charged was not by act of congress declared infamous or a felony, the offence was rightfully prosecuted by information. Even if it had been a conspiracy to cause a felony to be committed, it would still be a simple misdemeanor. The motion for arrest is overruled. Cases cited and examined: Section 5440, Rev. St.; Act April 21, 1806, (2 St. at Large, 404, 405; 4 St. at Large. 121; 13 St. at Large, 120;) 3 Cox, Crim. Cas. 229; 4 Ward. 265; Cooley, Blackstone, 136; 13 Johns. 82; In re Ville, 2 Dod. 174; 12 Ward. 209; 2 Bish. 176; and those noted in Wynn's Case, ante, 886. UNITED STATES V. MALONE.* (Circuit Court, S. D. New York. December 20, 1881.) 1. INDICTMENT UNDER SECTION 3266, REV. ST.-ILLICIT DISTILLING-MOTION TO VACATE JUDGMENT. Where conviction was had at March term and sentence imposed at the following May term, and application made at October term to vacate judgment and commitment, held, that the application was too late, as according to the rules of court it should have been made in arrest of judgment, or for a new trial before sentence was imposed, and that the term at which judgment was rendered having expired, no power remained in the court to vacate the judg ment. 2. INDICTMENT-SEPARATE COUNTS IN-EFFECT OF. Where a prisoner is convicted on the first count and acquitted on the second, the sentence of the court is a judgment that the verdict upon the second count did not make void the verdict upon the first count, and cannot be brought in review by a motion made after final judgment. Each count of an indictment, in judgment of law, charges a separate and distinct offence, and is, in fact and theory, a separate indictment. Accordingly, where a prisoner is charged in two separate counts with having used two different stills at different times on the same day and at the same place, and is *Reported by S. Nelson White, Esq., of the New York bar. v.9,no.15-57 acquitted on one count and convicted on the other, there is no room to contend that the jury found him guilty and likewise not guilty of the same offence. 3. SAME-AVERMENT OF KNOWLEDGE IN. When a statute prohibits generally and is silent as to intention, the pleader need not aver knowledge. Motion to Vacate Judgment. Sutherland Tenney, Asst. Dist. Atty., for the United States. BENEDICT, D. J. The defendants were jointly indicted and tried together at the March term, 1881. The indictment contained three counts, framed under section 3266 of the Revised Statutes. The first count charged, in substance, that the defendants, on the fifth day of May, A. D. 1879, unlawfully did use a still for the purpose of distilling spirits on premises where ale was manufactured, to-wit, on the premises No. 513 West Fifty-second street, in the city of New York. The second count charged in substance that the defendants unlawfully and knowingly did use, and did aid and assist in using, a still for the purpose of distilling spirits on the premises No. 513 West Fifty-second street, on which said premises fermented liquor, to-wit, ale, was manufactured and produced. The third count charged, in substance, that the defendants unlawfully and knowingly did use a boiler for the purpose of distilling spirits on premises where ale was produced, that is to say, on the premises No. 513 West Fifty-second street, in the city of New York. The verdict of the jury upon the first count was not guilty as to Peter A. Malone and guilty as to Dominick Malone. On the second and third counts the verdict was not guilty as to both the defendants. Thereupon Peter A. Malone was discharged, and afterwards, and at the May term, on motion of the district attorney, Dominick Malone was sentenced to be imprisoned for the period of 16 months and to pay a fine of $1,000. Now, at the October term of the court, application is made in behalf of the prisoner to vacate the judgment and commitment. This application is based on the proposition that the offence charged in the first count of the indictment is the same offence charged in the second count, and that the acquittal on the second count must prevail, and makes void the verdict upon the first count. To this there are several answers: First. The objection, if valid, comes too late. By the rules of this court, when a conviction is had, sentence is deferred to the next term of the court for the purpose of affording opportunity to move meanwhile in arrest of judgment or for a new trial, and the rules prescribe |