for one year from the sentence; but the prisoner had been in jail since the third of September, 1881, now neady eight months since his imprisonment, and I think, under all the cireumstances, and in view of the possible doubt of the constitutionality of the question that is. invqlved, that imprisonment for eight months is a sufficient sentence j and, as that will result in a discharge of, the prisoner in a few days, I have determined to enter that as the judgment of the circuit court: that the sentence be Imprisonment at hard labor iIi the city jail for eight months, beginning with the third of Selltember, 1881. '
See BID paru Virginia, 100 U. S. 842.
UNTl'lllD STATES V. PETIT.·
(Olrcuit (Jourt, B. D. Miuourl.
March 29, 1882.)
LAw-INFAMOUS CRnmS-ORIMINAL PRACTICE-'BoND.
Where the judges were divided in opinion all to whether or not the crime ot passing a counterfeit half dollar was an infamous crime which could only be prosecuted by iJldictment, and certified a division. of opinion on that point. to the supreme court, in a case where said crime was attempted to be prosecuted' by information, held, that the prisoner should be put under a bond of $1,000to respond to any indictment that might be found against .him at the next· term court, or the term succeeding, and that, under the circtl-mstances of the of the case, a bond with one surety should be accepted.
Information charging the defendant with passing a counterfeit half dollar. Plea to the jurisdiction on the ground that the crime of passing counterfeit coin cannot be prosecuted by information. William. H. Blis', for the United States. Frank M. Estes, for defendant. MCCRARY, C. J., (orally.) In this case, which involves substantially the same question as the preceding case, and which is before the court upon a motion to quash an indictment, the court will certify a division of opinion in order that the question may go the supreme court of the United States. 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 so much importance that I think
-Reported by B. F. Rex, Esq., of the St. Louis bar.
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. I suppose that the case is of sufficient importance that the district attorney will, if he chooses, indict. Mr. Estes, (counsel for defendant.) It is a plea to the jurisdiction. I suppose it has the same effect. Judge McCrary. Yes, sir; the same thing. Mr.. Bliss. Yes, sir. I was proceeding with the indictment. I will state this: there are no cases to be brought before the grand jury, except this one, that I now recollect. It is a question to be con· sidered whether the government shall be pnt to an eiipenseof $5,000 or $6,000 in order to get one indictment. However, I shall consnlt with Judge Treat in regard to that. Judge McCrary. Whatever conrSe you shall pursue the court's .action will be as indicated, and you can take such action as you see fit. We can fix such a moderate bond as the prisoner can give. Mr. Bliss. If the prisoner only give a moderate bond he may not answer here when the supreme court passes upon his case. Mr. Estes said that such remarks were unnecessary and uncalled for. He had offered to give bond and it was refused. Mr. Bliss. Of course, what I shall say will not prejudice the prisoner. Our opinion of this prisoner's connection with other criminals is such that he will not return. I am willing to abide by any determination of the bond that the court may make. I will say that this man lived in close connection with a band of counterfeiters -with the Biebusch gang, with which the court is familiar. I think that the bond ought not to be reduced. Mr. Estes. We had two hearings in this matter already-one before the commissioner and the other before Judge Treat. The -district attorney speaks about his connection 'with a band of counterfeiters. There was no such evidence, except that he passed some eounterfeitmoney on storekeepers in this city. He has been in court 10 months, and I think he is entitled to some consideration. Judge McCrary. The question of bond I shall leave entirely to the district judge. He knows all about the matter; I know nothing. Judge Trea.t. There have been very full discussions had in a nnm· ber of the courts as to the meaning of that clause in the federal con1ltitution, and it was very fully and elaborately argued before me and eonsidered. I am still of the opinion, not in accord with a great many opinions delivered by other judges. The question can receive
no final determination until the supreme court of the United States passes upon it. There is presented to the court, for the purpose of securing a final determination of so important a matter, a certificate of division. In the mean time what is to become of the prisoner? In the ordinary course, it might not be reached in that court for four 01' five years. What shall be done with him in the intermediate time? Of course, it is in the power of the district attorney to proceed by indictment. There is something due, despite the gravity of the question, to the liberty of the accused. Now, it seems to me, it is fair enough to put this party under bond of $1,000, to respond to any indictment that may come at the coming term of the district court or the term succeeding; otherwise, the liberty of the citizen is to a large extent jeopardized in order that the courts may reach a conclusion as to the law. It should not be done with such a degree of expense, so to speak, on the part of the defendant. I think right and justice will be subserved by admitting the prisoner to bail. As brothel' McCrary has already said, the question is of more importance than the case. The question should be settled, and settled over the head, if you will, of the party defendant, and should not be settled with cruelty to him. The order will be that he give bond in the sum of $1,000, to appear to answer to any indiotment that may be found at the Mayor November terms of the district court. Mr. Bliss. Under the custom, this question can be advanced and heard on the first Monday in October. Judge Treat. All the better. Making a bond that will carry you over the November term will carry you a year from the coming May, and in the mean time you can have it advanced and determined. That gives ample time, and enables this defendant to give bond. Mr. Estes. I ask for information if I ·can give bond with one good bondsman? Judge Treat. Under the circumstances of the case I will take it, I want some one as surety who will exercise his vigill1nce of the prisoner as bailor. He is under penalty of producing him on the bond. Bring that matter before me in ohambers. Later in the day the bond was procured and approved, and the prisoner was released.
NOTE. A crime is not infamous within the meaning of the fifth amendment unless it not only involves the charge of falsehood, but may also injuriously affect the pUblic administration of justice by the introduction therein of falsehood and fraud. U.8. v. Block, 4 Bawy.214; U. S. v. Yates, 6 .FED. REP.861. In early times the character of the crime was determined by the
WYLIE V. PEARSON.
punishment inflicted, but in modern times the act itself, its nature, purpose, and effect are looked at for the purpose of determining whether it is infamollS or not. U. So v. Yate.9, 6 FED. REP.861. See People v. Whipple, 9 Cow. 708. In the absence of some positive provision in a statute, the presumption is against an intention to make. an offence an infamous crime. U. S. v. Cross, 1 McAlI. 149. The crime of passing counterfeit trade dollars is not an infa· mous crime. U. S. v. Yates, 6 FED. REP. 861.-[ED.
(Oirouit Court, S. lJ. New York. February 28,1882.)
MAIL MATTER-STOLEN BONDS-RECOVERY FROM POSTMASTER.
Where bonds, the property of plaintiff, had been stolen from a bank and afterwards deposited in the post-office at New York for tr\lnsmission through the mail, but were returned, the addressee not being found, and were held by the postmaster under instructions from the department to await legal action on the part of the bank, held, that plaintiff could recover such bonds from the postmaster.
At Law. George H. Adams, for plaintiff. Samuel B. Clarke, Asst. S. Atty., for defendant. SHIPMAN, D. J. This is an action at law, which was tried by the court, a jury having been waived by written stipulation of the parties. The facts in the case are as follows: .
On March 24, 1881, a person representing himself to be E. R. McI,ean, of 220 Broadway, New York city, deposited in the New York city post-otlice the four bonds described in the complaint, of the value of $4,400, for transmission by mail, by registered letter directed to J. Grey, at a specified street and number in London, England. These bonds were then and ever since have been the property of the plaintiff, and had been stolen by burglars from the banking-house of the Northampton National Bank, to which she had entrusted them for safe-keeping. A large amount of other property was stolen at the Bame time. Neither of the persons purporting to be McLean and Grey had any rightful title to the bonds, but knew that they were stolen property, and were confederates and accessories in the robbery. The envelope containing the bonds was sent by mail in due course to Lon. don. Grey was not found. The package was returned to the dead-letter office in ·Washington, with the words" gone away" indorsed on the envelope as the reason for non-delivery. The package was then opened, and both bonds and envelope were sent to the defendant, who was and is the postmaster at the city of New York, with the letters of instruction recited in the answer. Me"Reported by
s. Nelson While, Esq .· of the New York bur.