cateinclosed in the registered envelope were intended to be conveyed in the mail on that route, within the meaning of the statute, and that it "is no defense to the defendant that the purpose was to give him an opportunity to rifle its contents, if he saw proper to do so, though this was the only purpose of its being placed in his possession. This position, I am satisfied, is maintained by both authority and reason. The question, in nearly all the cases relied upon by defendant's counsel, was as to whether or not the letters or mail matters were intended to be placed in the mail for transportation, and therefore they do not apply to the facts in this case; and, so believing, I feel constrained to overrule the motion of defendant, to peremptorily instruct the jury to return in his favor a verdict of not guilty. I am gratified that this case is in the district court, and that a writ of error can be obtained from the circuit judge, to remove the case to the circuit court, where that court can correct any errors which I have made. I will endeavor to instruct the jury thl{t any errors I may commit will appear in Buch way as to enable theclTcuit court to understand and correct them, as I would very much regretthlit the defendant· should sufl'erf()rany error of mine; that is, if a verdict shouldbo returned the defendant; but, if in his favor, my error in this ruling, as to him, will be harmless.
UNITED STATES '17. SMITH.
(C-trtmu Court, E. D. Virginia. Decembm: 28. 1889.) 1. IQ'oRlUnoN-INlI'.urous OPPENSIlIl. .
Any offense involving imprisonment In a general or penitentiary fa infamous, and cannot be prosecuted by info1"mation, under the first clause of the :fifth amendment Const. U. S.,which declares that "no person shall be beld loa lionswer f01" a capital or' otherwise infamous crime, unless on a presentment or lIidictment ofa grand jury. "
,I. BUE-RIGlIT'1'O FILE INFORMA.TION. , The light to file an Infol"lDation Is not a pre1"ogatlve of the prosecutor's ofll.ce. The district attorney must first have leave of court; and the court may require him, before gt'aJ:Jtingleave, to bring the accused before the court to "show cause, if cause there be, againllt the filing of the information.
On Motion for Leave to File Information for Violation of Rev. St. U. S. § 5 5 0 6 . ' ' , T.,R. Borland" U. S. DM. Atty., and L. O. Bri8Ww, Asst. U. S. Dist. Atty. . O. Jr.,Meredith, James LyO'l'l8" and Meade Haskins, for defendant. HUGHE8,:J.The information which the United States attorney moves fOl leave to :file informs the court and charges ·that the accused did, at ,ilie 'e1e<)tionhe1d for a represel1tative in congress in Richmond on the 6th
TuG
FEDERAL REPORTER,
vol. 4.0.
of November, 1888, unlawfully hinder, delay, prevent, and obstruct certain citizens named from voting in the said election. The information is founded on section 5506 of the United States Revised Statutes, which denounces as the punishment of the offense charged a fine of not less than $500, or imprisonment for not less than one month nor more than one year, or both fine and imprisonment. A preliminary question raised in thp argument was whether the district attorney may of right, by virtue of his official prerogative, file informations charging citizens with offenses brought officially to his knowledge. This cannot be done, under the rules and practice of this court, except upon previous complaint under oath, after opportunity has been given the accused to appear before the examining officer, and to confront the witnesses testifying in support of the complaint. This requisite makes it necessary that the district attorney shall have leave from the court.to'file an information; and, if it is within the discretion of the c,ourt whether to grant the leave or not, then the rl.ghtto file is not a prerogative of· the prosecutor's office. and the may require him, before granting leave, to bring the accused, by rule or other prpceeding, before the court, to show cause, if cause there be, against the filing of the inf(>l:mation. Ajwtiori is this the case where the objection is not merely to the propriety or e:xpediency of that method of proceeding in this particular case, but is to the jurisdiction of the court to entertain the information at all; which latter is the objection made in the case at bar. The grandjuryrepresents the public conscience. If an act is committed offensive to the public peace, morals, interests, or policy, and is made criminal by law, the grand jury is the institution ordained in the English and Am,erican jurisprudence which is empowered to take the act under cognizance, and determine whether or not the offender shall be prosecuted criminally. It is for the grand jury to declare whether the offense is so grave as to form a case for prosecution or so trivial as to be ignored. If offenses are committed which are only private Qr personal in their character .and bearing, they may be prosecuted' by information. This is the original and general distinction between offenses properly cognizable by a grand jury and those which may be proceeded against directly by governmEmt, in the person of its public proseeutor. It is true that in practice the distinction was not long Observed. The domain of the indictment was .habitually invaded. GovernUlent frequently indulged in arbitrary prosecutions, ipstituted on the individual motion of the public prosecutor. The practice grew hUo an abuse; and the framers of the constitution of the United States, sensitively tenacious of ,the liberty of the citizen, introduced a provision into the organic law it;,o tended as a, protection from arbitrary prosecutions. "':rhe first clause of the fifth amendment of that instrument declares that "no 'person shall be held to answer for a capital or otherwise unless?ripresentment or indictment of a grand jury;" that is to say, thatno:petson shall be triable for an infamous offense except on an indictment. In subordination to this provision, of the constitution, all 'penal aets 'Of congress must be construed by the. courts. Indeed, they are all enacted in .contemplation of this provision. An aotof congress which admirably
UNITED STATES t/. SMITH.
757
well illustrates the distinction between offepses triable on indictment and those triable on information is that which confers jurisdiction on the police court of the District of Columbia. This act grants to that court "original and exclusive jurisdiction of all the offenses against the United States committed in the District not deemed capital or otherwise infamous crimes; that is to say, of al1simple assaults and batteries, and all other misdemeanors not punishable in the penitentiary." This act has been cited by the supreme court of the United States as a correct exposition of the distinction between offenses that must be prosecuted by indictment in the courts of general jurisdiction and those which may be prosecuted by information or other summary proceeding in courts of limitedjuriiidiction. Seethe case of Mackin v. U. S., 117 U. S. 354, 6 Sup. Ct. Rep. 777. Many cases came before the circuit courts of the United States involving the distinction between crimes triable by indictment and;tliose by information, before the supreme court was called upon to define that distinction. In these cases we held, looking to the word crime in the constitution, that it was the character of the crime that constituted the distinction, and not the punishm(:int denounced by acts of congress. The circuit courts had held, as I did in U. S. v. 13f1.ugh, cited below, that if the offense charged is not treason, and is not declared by act of congreS$ to be a felony, and is not of that class of which fall within the designation of,crirnenjalsi, rendering the person convicted incompetent to testify in a court of justice, the prosecutionrnight be by information. But when the question came before the supreme, court for the. first time, in 1884, and in two subsequent cases, they reversed the judges of the circuit courts, and required us to look notto the "crime," as ,ve had thought the C,Ol1stitution required us todo, but to the punishment dElllOl,lllced by congressagainst acts made criminal by statute. In Ex parte Wilson, 5 Sup., Ct. Rep. 939, the supreme court said, in positive laogqage, as follows: "W.ithin the last fifteen years, 'prollecutions by information have greatly increased. and the general current of opinion in the Circuit and district courts has been towal;ds sustaining them for any crime, a conviction of which would not at common law have disqualified the convict to be a witness. U. S.v. Shepard, 1 Abb. (U. S.) 431; U. S. v. Maxwell, 3 Dill. 2'75; U. S. v. Block, 4; saw)". 215; U. S. v. MUler,3Hughes, (U. S.) 553; U. S. v. Bau,gh,4 Hughes, (u.s.) 501, ,I F,ed. Rep. 784; U. S. v. Yates, 6 }l'ed. Rep. 861; U. S. v. F'ield, 21 Blatchf. 330, 16 Fed. 778; In re Wilson, 18 Fed. Rep. 33. But, for the reasons al)ove stated. havipgregarq to the object and the terms onhe /lrst provision ofthefifth amendment; [ot' the national constitution,] as 'well as to the history of its proposal and adoption, and to the early understanding and practice under it, this court is of opinion that the competency of the defendant; if convicted, to, be a witness in another case is not the true test; and that no person can bEl held to answer,. without prl'sentment or indictment, by a grand jury, for any cr,ime for which an infamous punishment may be imposed by the court. 'The'qut;lstion is whether the criine is one for which ,the statutes authorize the court tCil\Wardaninfamolls punishment, not whether the pun; ishment ultimately awarded: is an infamous one. When the accllsed is in dangel' of be'ing subjected to an infamous punishnlent. if convicted; he has t))eright to. t,hllt heshllUnot ,be' put UpCio b,is,triBI, except on the aeensat;ion of.a j:UfY." ,
758
FEDERAL REPOR'l'ER, Yolo 40.
'Itirulbther'case,thesupreme that "th:J test is whether the crime is one forwhlchthe statutes' authorize award ,an irifa,m,ous punishment, not whether the punishment ultimately awardt:d is an infamous olle... When the accused isin danger of being subjected to an infamous if convicted, he has the right to insist that he shall pqt be put upon his trial eX,cept on accusation of a grand jurY;"(Jfackin v. U.S., 6 Sup. Ct. Rep. 778,)-l'ulirtg that the punishme.nt; llot the crime, shall' be considered,' and that. the punishment, if makes an indicttnentnecessary. The court being necessarily ca:lled' upon to indicate the criterion of infamy, held, further, that public opiIiidn,and not legal and techniciU definitions, n1ust determine what punishments areinfamousatld whatnot so; adding that "what punishments:sniill be considered. asinfllIDOl1S may be affected by the changes of pulma opinion. from' ol1eai.i!to· ariotner." .Still, there is nothing in the I1bstract utterances of the' supreme c,ourt which determines what punishrpehts'do work infamy IlIid what: db not. That court assumes that the circuit courts had beld that thcisecrimes which disqualify the accused to testify were the only crimes which fell within the category of "infamous, II This is not strictly sd; for' all 'these courts had held that in adof every grade which the statutes dition to the crimen ja{gi thoSe' declared to be felonies were, be Prosecuted on indictmenta. Overruling us generallY,in our practice of looking to crimes, ,and requiTing us to IMkto punishments, in which were infamous and which not; the supreme court has not given 'us any abstract rule to guide us. in .distinguishinginfamou8 ments, except declare that unstable public opinion is to govern, and not thedefinitioDs of text-books;6r the precedents registered by the law court itself.' ; So far, therefore, as reporters, except those of the Circuitcotirtsare this important question has passed beyond the pale of originalreasoriirig; and we 'are unaer the necessity of looking solely,'for our guidal1ce, to public opinion, as interpreted to us by the to our law, the authority of the supreme court in such have been taken 1:lefore it. Thre,'.cllses of the sorthav.e been cited in argument at the, bllr, and IknoW'of no others yet.reported,viz., those of Ex parte WilBon, 114 U. S. 417,:0 Sup. Ct,RepO'l)35j Mackin v. U; S., 117 U. S. 348,6 Sup. Rep. 717;' ,and .. U., S. v.. De Walt, .128 U. S.393, 9 Sup. Ct. 111. Iq,Exparte the trial had had in Arkansas, on 5430.. of the Revised Statutes, an information foundeQ of the United States, which denounces as the .penalty for the offense created,: a fine of'not more: than $5,000, or imprisonment at hard labor for not more than 15years,ot bdth; and,theaccused had been sentenced the maxitnum fine, term Of imprisonment.. In. been had iIi a prosecuti9n, byiriformation, un,der section 5440. of the .Revised Statptes, which $1,000 makes the penalty QLthe offenseoharged a,fine of not nor more·than-'$10,OOO, and'imt>risonment'Dot' tnore than two years. The sentence of the court was for a fine of $5,000, iuid 'for the maximum
to
UNITED STA.TES V. SMITH.
759
term of two years' imprisonment. In the De Walt Ozse the prosecution had been by information based upon section 5209 of the Revised Statutes, which makes the penalty for its violation imprisonment for not less than 5 nor more than J 0 years in ,a state jailor peniteniary. The sentence was for the maximum period of 10 years, by one of the territorial courts of Wyoming;ln all these ,cases the offenses were obviously not properly triable on informations. The sentences were severe and ex· and in every case the accused were subjected to confinement at hard labor in a penitentiary. The cases were unusual, and out of harmony with the general of the courts of the United States in all other districts. We have not allowed trials to be had on informations in caseS involving punishrp,ent at hard labor in general penitentiaries. Be that as it may, the question now is, wh;tt is the rule to be derived from the three decisions of the,i)upremecourt under consideration? Of course, that cpurtdeciared the cas§to !lave been unconstitutional, and discharged the prisoners from which they were undergoing. The general priOl:liple was therebyes.tablished that tllere could ,be no trial oninformation for ap offense p,1;mishable at hard labor.' That ,was the express ruling ,in Ex parte wilson. But tpe court went fw:ther in th,e two later I,u;that of Mackin, it,said: , ' "How far a convict sentenced bra court of the United 8t3testo im,prison, Inent in,aslate-prison or penitentiary, and llot in terms to hard Jabor, can be put to work,eitl;II:\rM part of,his punishment or as part oj the , discipline and treatment 9.f the prison, was much discussed at the bar; but we 'have notfoun!lit necessarY'to dwell upon it, because we cannotdollbt that at 'the dayimprisoilll:1lffitIn:astate-prisoll or penitentiary, with or without harillabor, is an infamous -punishment. It is not 'only so considered in the ,general opinion :aftha bat:ill :has been recognized as such in the legislation of; the anq:terriloriel:HIS well alJ' of (lOn,gress. II ,in the DeWalt /J<i¥" it .repeating its language In Uat in ast8:te-pril3on or penitentiary, wltli or without hard Jabor, is an infamous punishijlent," and could not be inflicted in a prosecution by information. 'These three (l.lrnish op.r 9nly guide in dealing with the decisions of the supreme question at bar. If we regard the facts of the cases reviewed, the deduction from them is that hard labor is the ingredient of the imprisonment that punish,ment -infamous. ,But if we -regard the language of the court hard labor is not a necessary incident, and mere imprison. ment in a renq,ers the punishment infamous. One question, however, is still left open by'the supreme court: What did it mean by the tenn· "state-prison?" It is used in juxtapositioQ:and thf. meaning· of which is definitely established. ',A1lunderstl:ind a peQitentiary to be:aprison for the com:'PUlsJ)ry,confinement, generally RP 'compulsory labor, of convicts .from the,crimina}.cQurfs. In Pennsylvania'llnd thesputbern states theseprisllearly all the ons .aryCalled"peuitentiaries)' " the term H,state-prison"is: :used. synonYDlQusly with the word" pEuiitentiaty ;,11··' That designatioll of'Such'a
760
vol 40.
particularly in Massachusetts, the state from which Mr, Justice GRAY was appointed, who delivered the opinions of the supreme court in the Wilson and Mackin Cases. I do not agree with counsel, who resist the filing of this information, that the term"state--prison" was used by the supreme court in the general sense of any jail or lock-up of a county or city owned by the state. Such a construction would lead us to the abo surd conclusion that the supreme court meant to hold that no offense involving confinement, however brief, in a state or a city jail or statiunhouse could be prosecuted by information. The supreme court's citation of the act of congress relating to the police court of the District of Columbia negatives such a supposition; that act expressly permitting summary prosecutions for misdemeanors "not punishable by imprisonment in the penitentiary." So far as the infamy of a punishment results from imprisonment, the decisions of the supreme court settle that imprisomnent in a general state--prison or penitentiary inflicts infamy, and that no offense involving such imprisonment can be· prosecuted by information. They further decide that if the statute which prescribes the punishment of an offense allows a imprisonment long enough to authorize the convict to be taken too. penitentiary there cannot be a prosecution by information, however short a term of imprisonment may actually be inflicted by the court. I think these rulings settle the case at ba.r. The statute (section 5506) authorizes an imprisonment for 12 months. Convicts of this .district are sent to penitentiaries outside of Virginia, under the authority of section 5546 of the Revised Statutes, which does not, like section 5541, limit the class of persons sent,to those who are sentenced for "longer than one year." The practice of the court when sentencing for as long a term as one year is to order the confine-ment to be in a penitentiary. Section 5506 and this practice of the court clearly bring the case at bar within the purview of the Cases of WitBOn. Mackin, and De Walt. It is incum bent upon me, therefore, to deny the motion of the district attorney for leave to file the information under consideration.
ROoT
t1.1tIT.
ADAMS
&
EDEN PARK INCLINEDRy.
Co.
(Ofn'cutt Oourt, S. D. OMo, W. D. December 24, 1889.) PATENTS FOR INVENTJONS-INFRINGEMENT-PRELIIIONARY INltrnOTION.
In a suit for Infringement of patent for an "improvement in clamping apparatus for connecting street-cars. " etc., "with endless traveling devices," it appl'ared that, neither the complainant nor the defendant was engalfed in'the manufacture or sale of gripping devIces; that defendant's) Ulle of his deVIce bad been continued a.bout four years without notice or intimation :from complainant that he claimed for the patent in suit sny construction that would interfere with defendant's use; that no Irreparable injury would be sut!eredby complainant if a preliminary injunction were refused, but that the operation of such order might be disastrous to the defendant, and might increase the risk of travel in forcing defendant to do away with. some of bill appliances upon hia cable road. lle14, that a preliminary injunotion would be denied.