FEDERAL REPORTEr..
Upon caretul consideration, after an examination of authorities, I am well satisfied that my judgment quashing the bill of in this case was in accordance with the plainest principles of natural justice and the laws of the land.
'Circuz't Court, D. Vermont. May Term, CoNSTITUTIONAL. LA.w':"'INFAMOUB CRIMB-PROSECUTION BY HiFORMATION.
Passing counterfeit money of the United States is not an infamous crime, within the meaning- of the fifth amendment to the constitution, and may be prosecuted by information.
Information for Pa!3Sing Counterfeit Money. Kittredge U. S. Atty., f.or prosecution. John Young and He ..tan S. Royce, for respondent. WHEELEJ1, J. ,This is an information filed by the district attorney, by leave of. couI't, against the respondent for passing oounterfeit money QftheUnited States. The respond'lnt has deII!-urred to the information solely upon the ground that the prosecution should be by indictment, and not by information, because, it is said, this is an: infamous crime within the meaning of article 5 of the e.mendments to thecons.tituti,on of the United States, which provides that .perlilon shall be held to answer fora capital or otherwise infamous crime except on presentment or indictment of a grand jury, etc. This amendment was proposed in 1789, and finally adopted in 1792. At oommonJu;w the counterfeiting of the king's money was treason, and a felony, and infamous, but the mere passing of the counterfeits was only a misdemeanor. 1 Hawk. P. C. §§ 55, 50; East, Cr. Law, ro. 4, § 26 j Bac. Abr. "Treason, I;" Fox v. Ohio, 5 HowAlO. This offense would not, be infamous unless made so by statute. There was no statute of the United States at the time of of th,1.t amen4mflut.llncl isno.ne now, characterizing it in anyway.. There. have in the meantime, making it a feature has been repealed. The repeal took away. ,the. efLect of the charaotel'ization, and left the crime as it was before,-.-a misdemeanor in punishment was made s verej bilt the extent: of punishment .does Do.t'alter the. nature. .of the offense.: U. S. v. . .. . . . 14 Amer. La,w Rog. 433; U. S. v. Coppersmith,. 4 EEI/.· Rmp.
no
UNI1'ED STATES V. FIELD.
This very questIOn. was decided: by Judge BENEDICT, with thecon.cdr; re!1ce of Judge BLATCHFORD, sustaining the information, in U. S. v. Yates, 6 FED. REP. 861. That decision should be followed until iUs overruled by the supreme court. It is supported by U. S. v. Wynn, 9 FED. REP. 886, and U. S. v. Petit, 11 FED. REP. 58. This court concurs in it fully. Demurrer overruled; the respondent to answer over. There are several recent authorities sllstaining more or less directly the poiut made by JUdge WHEELER in the above opinion. The first to be noticed is that of U. S. v. Coppersmith, decided by Judge HAMMOND in the circuit court of the United States for the western district of Tennessee, in 1880, (4 FED. R.EP. 198.) This case, which is cited by Judge WHEELER, arose under section 819 of the Revised Statutes, which provides that, on the trial ()f "treason or a capital offense, the defendant shall be entitled to 20, and the United States to 5, peremptory challenges." while on the trial of any other felony the defendant shall be entitled to)O, and the United States to 3, peremptory challenges; alll1 in all other cases, civil or criminal, each party shall be entitleu to three peremptory challenges. In construing this statute, Judge HAMMOND, after dilating with milch learning and good sense on .tnecoJlfusion attending the common-law notion of felony, proceeds to saY:";Be this as it may, the clause under consideration may operate, in other than capital cases, to give the defendant 10 challenges in the following class of cases: Fi1"st, where the offense is declared by statute, expressly or impliedly, to be a felony; second, where congress does not define an offense, but simply punishes it by its common-law name. and at common law it is a felony; thi1'd, where cOllgressadopts a state law as to an offense, and under sricli: law it is a felony." He then proceeds to say that while making counterfeit coin was, by the ancient common law, treason, and SUbsequently a felohy, uttering and passing it was only a misdemeanor. This' statement, I apprehend, is too broad. Counterfeiting coin was only treasonst common law when the coin eounterfeited was that of the king; counterfeiting the king's coin being put on the same basis as the king's privy seal, both being regarded as attacks on royal prerogative. It was not until 24 & 25 Vict,c. 99, that counterfeiting current coin of all kinds was made a felony. nut, however this may be. the position is unquestionable that, at common law, forgery is in itself bnt a misdemeanor, and that, consequently, the passing of forged documents or instruments is only a misdemeanor. Whether counterfeiting coin is a felony at common law depends, I apprehend, upon whether the coin -by a foreign counterfeited is coin uttered by the sovereign, or coin prince,-a distinction not takell in the cases before us. .Toe()unterfeit the coin of the sovereign is, acc6l'dingto the preponderance Of 'authority, felony at common law, though it is Qtherwise with the counterfeiting ofothercoin. That under the Revised Statutes;§§ 5414, 5457, 5464, is not a felony, is; I think, Ilatisfactorily shown by Judge HAMMOND in U. S, v. Coppersmith. And the inference drawn by him, that the common-law offenses
780
FEDERAL REPOR'fEn.
of counterfeiting and of passing counterfeit coin are absorbed in the statutory definitions, is also satisfactorily establish pd. The next case in order is that of U. 8. v. Yates, decided in the district court for the eastern district of New York, on May 2, 1881. by Judge BENEDICT, with the coucurrence of Judge BLATCHFORD, (6 FED. REP. 861,) where it was decided t!wt the crime of passing counterfeit trade dollars is not an "infamous" crime under the constitution, and that hence such prosecutious can be instituted by information filed by the district attorney. It is here laid down, following U. 8. v. Blook, 4: Sawy. 214, that "at common law a crime involving a charge of falsehood, must, to be infamous, not only involve a falsehood of such a nature and purpose as makes it probable that the party committing it is devoid of truth and insensible to the obligation of an oath, but the falsehood. must be calculated to injuriously affect the public administration of justice. Tried by this test, the act of passing counterfeit coins with intent to defraud is, manifestly, not infamous." This statement is open to criticism. The common-law test of infamy heretofore generally accepted is disqualification as· a witness; in other words, an offense, a cOllviction of which disqualifies a person at common law as a .witness, is infamous; an offense not working such disqualification at common law is, not infamous. U. 8. v. Mann, 1· Gall. C. C.3; U. 8. V. Isham, 17 Wall. 496; U. S. v. Bosso, IH Wall. 125; U. S. v. Ebert, 1 Cent. Law J. 205. As a general mle, "infamy," in this sense, comprehends treason, felony, and orimenjalsi, (Phil. & Am. Ev. 17; Co. Litt. 6b; 1 Starkie, Ev. 94; 1 Green!. Ev. §§ 372,373; Whart. Crim. Bv. § 363;) and it has been expressly held that a conviction of forgery works infamy, though forgery be only a misdemeanor. Rex v. Davis, 8 Mod. 54; Poage v. state, 3 Ohio St. 229. If this be the case with forgery, it is difficult to see why it should not be the case with the offense of passing- counterfeit coin. As bearing on the question at issue, Judge BENEDICT cites U. S. v. Isham, 17 'Vall. 496,·· "'1\ere a prosecution by information for passing an unstamped che\lk was sustained by the supreme court of the United States, no objection oejng' taken to .the procedure. But even supposing the question had been solemnly argued before the court, and expressly d.ecided, the two cases do not fall within the same category. Passing an unstamped check is a misdemeanor of low grade. It may undOUbtedly be prompted by an intention to cheat the of. two cents, but i.t is ordinarily the result either of mistake, or at the worst of slovenliness and a want of care. It falls under head, therefore. rather of negligent offenses than of frauds. Whereas, of an 'for paSsing counterfeit money, frlltuqulent ·intent is an essl'ntial incident; merely negligent passing of such money-i. e., a pasi-'ing without}nteht to defraud-would not sus,tain a conviction. 'fhat severitj' and duration or ,punishment are not, as stated. by Judge B'ENEDICT iuhis able opinion, decisive. tests, must be conceded. At the same as wiIi present)y. be, awued, of some weight, in determining is the meaning of ., inf,amy " ipthe particular provision befOfe us.; , I:" "... .,. .. ' The next ca.{lein order of time is U.S. v.Wynn. decidedby Jndge TREAT in the for .the eastern of Missouri, January 30, 18H2: (9 HEr'. 8'36,) where it held that stealing from the mail is not an
UNITED STA.TES V. FIELD.
·781
infamous crime, and hence may be prosecuted by information. "When congress has declared alt offense," so it was argued, "it is what congress has designated it, and not what any other system of jurisprudence or foreign statutes may prescribe." ," If the congressional statute prescribes infamy the offense is infamous." "If congress does, without express provisions as to infamy, make the offense a felony, the offense must be presented as infamous and by indictment." Hence it was held that as the statute does not make stealing- from the mail a felony, the offense is not" infamous," although "punishable by imprisonment at hard labor for not less than one year and not more than five years." The last case to be noticed is U. S. v. Petit, in the circuit court for the eastern district of Missouri, March 29, 18H2. (11 FED. REP. 58,) in which it apJlears that on the qnestion whether passing counterfeit coin is an infamvus crime, MCCRARY, C. J., said: "With regard to the question involved, it is of very much more importance than the case itself, and therefore I am not prepared to announce that I have reached a final and matured decision in opposition to that of the district judge. I am prepared to say that it is a case of much importance that I think it ought to go to the supreme court, and for that reason I will certify the case with the district jUdge, and will hold that the motion to quash the information must be sustained." As directly accepting U. S. v. Yates, above noticed, is to be regarded U. S. v. Field, given in the text. JUdge WHEELER properly felt himself bound by the rulings of JUdge BLATCHFORD and JUdge BENEDICT, in U. S. v. Yates. It is to be observed, however, that he does not content himself with merely following U. 8. v. Yates. He goes further, and states that in the decision in U. S. v. Yates he "concurs fully." So far, therefore, as the authorities go, there is a decided preponderance for the position that a crime is not" .infamous," under the constitution, unless it is either a felony, or is made expressly infamolls by act of congress.Eminent, however, as are the judges by whom these rulings are made, I must dissent from their conclusion for the following reasons: (1) "Infamy," at the time the clause was introduced into the constitution, was, in criminal law, a term of art. It meant that grade of crime; conviction of which involved exclusion from the witness-box. "Infamous crime" and" felony" are not convertible terms. Forgery, in the sense before us, is an infamous crime a't common law, as several cases above cited show, and So is perjury; yet both forgery and perjury are, at· common law, misdemean'ors.If f-orgery is an infamous crime, it is hard to' see why Rl\8s1ilg' forged paper, which is virtually accessoryship 'after the fact to forgery, is not'infamous. At all events, if there be a doubt in such a case, the doubt should be given to the accused. In dubio mitius. It is hard to see why a harsher process should be applied to the passer of forged paper than to the forger,to the passer of false coin than to the manufacturer of such coin. (2) It is true that we are not to make" infamous crimes," and" crimes punishable with hard labor in the penitentiary," convertible terms. When, however, we have, in a question of doubt, to determine what offenses are "infamous," it is proper to inquire what is the punishment the legislature im po.,;es on such a crime. If" infamy" is to be defined in a technical sense, then
.78.2
FEDERA.L REPORTER.
the proper meaning is that assigned to it by the Courts in determining, as is said above, the qualifications of witnesses. If it js to be defined in a popular sense, then the popular estimation attached to the offense is to be con'3idered, "Infamous," says Webster, is "scandalous, disgraceful, ignominious." That a crime is in this sense infamous is evidenoed by the fact that it has assigned to it hard labor in a for a period not less than one nor more than five years. The man who emerges from such an imprisonment cannot bnt be regarded, if anyone can be so regarded, as tainted with" infamy," "disgrace," and "ignominy." (3) It is not, in tbe face of an express intention exhibited to the contrary, ,to be assumed that congress meant ,to dispense with grand juries, in cases in which hard labor in the penitentiary for at least a year is imposed on conviction, and which wert. at least" infamous" in the sense of the term at the time of the adoption of the constitutional limitation. Grand juries are not only important checks on executive caprice and oppression, but they are of great value in the dignity and independence they lend to prosecutions, and the relief from personal responsibility they affOrd to the prosecuting attorney. It is not to be imagined that the framers of the constitutional limitation, or that congress, intended to substitute informations for indictments in any cases except those which are quasi civil in their character, such as revenue offenses. Even in England, where there is noconstitlliionallimitation. and where informations used to be granted, on application to the court, for libels, we have late rulings to the effect that,as a matter of public policy, the granting of permission to Ille informations will in such cases be as a rule refused·, Yet whais proposed npw is to estabUsh in this country, under statutes whose uity all concede, the practice of putting defendants on trial for crimllf\ of high order, to which disgraceful and severe punishment is assigned, on the Ulere information of the prosecuting attorney, without even a prior leave of court. .As tending to the same result may be cited the following from Judge COOLEY: "An infamous offense is one involving moral turpitude in the offender, or infamy in the punishment, or both.. It is probable that in this amendment the punishment was ill view as. the badge of infamy, rather than any element in the offense itself, and that provision fQr the punishment of minor offenses otherwise than on indictment, even though they be degrading in their nature, would not be held unconstitutional, provided the punishment imposed was not greater than that usually permitted to be inflicted by magistrates, proceeding in a summary way. But the punishment of the penitentiary must always be deemedinfamous; and so must any punishment that involves the Joss of civil or political priVileges." Cooley, Canst. Law, 29. FRANCIS WHARTON.
V. :STOWELL.
783
ALLIS
V.
l:lTOWELL. April, 1883.
Oircuit Court, E. D. Wi8conBin. 1.
PATENT LAW-INFRINGEMENT-RECOVERY OF Pl{OFITS AND D.v.rAGES BY PATEN'fEE AS AFFEC'l'ING RIGHTS OF A USEH, ETC.
Where a patentee recovers from an infringing manufacturer full damages and profits on account of the infringement, the purchaser from such manufacturer, who is a user of the machine; will be protected in such use against a suit for infringement, as he would be if he were a licensee from the patentee. But this could only be held on a clear showing that the purchaser was using the same patented machine or instrument as that involved in the suit between the patentee and the infringing manufacturer, and that the user was a vendee of such manufacturer. 2. AND DAMAGES MUST»B ACTUALLY PAID.
It would seem from the authorities that, to effect such a result as !!tated
above, it must further appear that the patentee's claim to profits and damaged against the manufacturer has been actually paid and satisfied. 8. 8AMJll-INJUNCTION-MULTIPLICITY, OF SUITS.
To prevent a multiplicity of suits the court may, in a proper case ana upon a proper showing, require the prosecution of suits between the patentee ana the mere user of a patented machine to be suspended, and await the result of suit pending between the patentee and the principalinfringer, from whom the user purchased the machine; but it should conclusively appear, to justify stich interposition, that the patented article involved in the suits against the usera was purchased by them of the defendant in the principal suit for infringement, and that it is identic!>l in character with that involved in the suit'againat the principal infringer.
In ,the Matter of the Application ot John M. l:ltowell tor an lOJunc· tion to restrain Edward P. Allis from proseoutingcertain suits for infringement of the Beckwith patent, in Iowa, Illinois,and Michigan. Flanders eX Bottum, in support of application. ' W. G. Rainey, contra. , DYER, J. From the records of this'court in the litigatiQJ:!. hetween Edward' P. Allis and John M. Stowell upon what is known as the Beckwith patent, and in part from the allegatiollsof the 'petition of Stowell and the answer of Allis the'reto; whichconstittiti{the basis of the present and W hicb will be hereafter to" the , ; 'J',: " '" following fact's appear: ' In 1877 the respondent; ,'Allis, as the owner of said patent, cdm'inenced a, suit in this court against the petitioner, Stowell, to establish the validity of the patent, to restrain the infringement thereof, and for an account of'proflts aha damages. The casEiwllsduly submitted to the court,ando1'lthenlntb day of February, 1880, an interlocutory decree, was entered,adjudging the', Jfatentvalid;arid 'as Stowell; in the ophlion: of the 'conrt, Wid' infringed'the, first claim of the patent, an injunction was granted, restraining such infringe-