Infamous Crime

A crime which works infamy in one who has committed it. In the United States. It has been held that only those crimes are infamous that were so at common law (1 Dak. 289), but the general rule is that any offense is infamous that may be punished by death, or by imprisonment in the penitentiary, with or without hard labor. 128 U. S. 393; 8 Gray (Mass.) 349; 75 Mich. 611. A crime which subjects the party to a disqualification to hold office, in case he is convicted of such crime. 171 111. 73. The test is the possible punishment, and not that awarded in a particular case. 114 U. S. 417. At Common Law. Treason and all felonies, and certain misdemeanors affecting the public interest most closely, were infamous crimes, the nature of the crime being the test. 1 Greenl. Ev. § 373; 114 U. S. 417.

A crime which works infamy in one who has committed it. The fifth amendment of the constitution of the United States declares that, with certain exceptions not here material, “no person shall be held to answer for a capital, or otherwise Infamous crime, unless on a presentment or indictment of a grand jury.” A similar provision is contained in many of the state constitutions, although in some later ones there is a tendency to abridge the common-law strictness of requiring indictment by a grand jury. It Is settled that the provision of the federal constitution above quoted restricts only the United States so that a state may authorize an offence — capital or infamous — to be prosecuted by Information; State v. Jackson, 21 La, Ann, 674; this rule of construction has been uniformly applied to the general restrictions contained in the first eight amendments; Barron v. Baltimore, 7 Pet. ( U. S.) 243, 8 L. Ed. 672; Murphy v. People, 2 Cow. (N. Y.) 815; Pom. Const. L. §§ 231-8. Under the fifth amendment of the United States constitution, a person charged with murder, committed in Oklahoma Territory prior to statehood, must be prosecuted by indictment; Reed v. State, 2 Okl. Cr. App. 589, 103 Pac. 1042; Hayes v. State, 3 Okl, Cr. App. 1, 103 Pac. 1061; but an indictment is not required even in cases of commonlaw felonies under a atate constitutional provision that no one shall be deprived of his liberty except by the laws of the land, and the legislature may authorize prosecutions by an information; State v, Stlmpson, 78 VL 124, 62 Atl. 14, 1 L. R. A. (N. S.) 1163, 6 Ann. Cas. 639. It was salcl by Mr. Justice Miller, “There has been great difiiculty in deciding what was meant a hundred years ago by the phrase infamous crime, which is used in this not diminished by the fact of the obscurity of the language itself as construed by what is known of the laws and usages of our ancestors at that time, in connection with the fact that both state and federal legislation in regard to crime may have made that Infamous since, which would not have been so considered then;” Miller, Const. U. S. 504. The question was not authoritatively decided by the supreme court until 1885, when in Ex parte Wilson the theory that the true test is the nature of the crime, as understood at common law, was distinctly negatived, and it was said by Mr. Justice Gray for the court: “When the accused is in danger of being subjected to an infamous punishment, if convicted, he has the right to insist that he shall not be put upon his trial except on the accusation of a grand jury and the fifth amendment, declaring in what cases a grand jury should be necessary, practically affirmed the rule of the common law. This was that Informations were not allowed for capital crimes nor for any felony, i. e. an offence which caused a forfeiture; 4 Bla. Com, 94, 95, 310; thus the requirement of an indictment depended upon the consequences of the convict, and it was concluded that the constitutiorml substitution of the words “a capital or otherwise Infamous crime” for capital crimes or felonies, “manifestly had in view that rule of the common law, rather than the rule on the very different question of the competency of witnesses. The leading word capital describing the crime by its punishment only, the associated words or otherwise infamous crime must, by an elementary rule of construction, include crimes subject to any infamous punishment, even if they should be held to include also crimes infamous in their nature. Independently of the punishment affixed to them.” Having determined that the character of the punishment was to be the criterion applied in such cases, the court discussed the question what punishment would be considered Infamous, and carefully confining the decision to the requirements of the case, continued thus: “Deciding nothing beyond what is required by the facts of the case before us, our judgment is that a crime, punishable by Imprisonment, for a term of years at hard labor, is an infamous crime, within the meaning of the Fifth Amendment of the constitution.” Ex parte Wilson, 114 U. S. 417, 418, 6 Sup. Ct. 935, 29 L. Ed. 89; U. S. V. Petit, 114 U. S. 429 note, 6 Sup. Ct. 1190, 29 L. Ed. 93. This decision was followed by a number of others which adhered to the same doctrine and decided that imprisonment in a state prison or a penitentiary with or without hard labor was an infamous punishment; Mackln v. U. S., 117 U. S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909; Ex parte Bain, 121 U. son r. V. S., 121 U. S. 281, 7 Sup. Ct. 896, 30 L. Ed. 959; U. S. v. De Walt, 128 U. S. 393, 9 Sup. Ct. Ill, 32 L. Ed. 485; Medley, Petitioner, 134 U. S. 160, 10 Sup. Ct. 384, 33 L. Ed. 835; In re Mills, 135 U. S. 263, 10 Sup. Ct 762, 34 L. Ed. 107; In re Claasen, 140 U. S. 200, 11 Sup. Ct 735, 35 L. Ed. 409. Before this decision there had been a tendency on the part of the courts towards the doctrine that the question of Infamy was to be determined by the nature of the crime and not at all by the character of the punishment Prior to the Independence of the United States there were understood to be two kinds of infamy, — one based upon the opinion of the people respecting the mode of punishment, and the other having relation to the future credibility of the offender; Eden, Penal L. ch. 75. Because the legal bearing of the subject was mainly if not entirely with respect to the settlement of rules determining what crimes would disqualify the perpetrator from testifying. Accordingly the classification of crimes other than treason or felony, which were held to be infamous, were naturally those the commission of which would tend to cast discredit upon the veracity of the criminal, — denominated generally by the term crimen falsi. The manifest purpose of the constitutional provision under consideration was the incorporation into fundamental law of one of the great guarantees of liberty. “A mere reference to the history and adoption of this provision into the federal constitution is sufficient to show that it was not a question of competency or incompetency to testify that the framers of our government were considering, but rather in consequences to the liberty of the individual in securing him against accusation and trial for crimes of great magnitude, without the previous interposition of a grand jury;” Butler V. Wentworth, 84 Me. 25, 24 Atl. 456, 17 L. R. A. 764. As was said by Shaw, O. J., in an opinion quoted with approval in Ex parte Wilson, supra, “The state prison for any terra of time is now by law substituted for all the ignominious punishment formerly in use; and, unless this is infamous, then there is now no infamous punishment other than capital.” It is said in a case subsequent to that in which the supreme court settled the principle, under the laws of the t Jnited States, an infamous crime is one for which the statutes authorized the courts to award an infamous punishment. Its character as being infamous does not depend on whether the punishment ultimately awarded is an infamous one, but whether it is in the power of the courts to award an infamous punishment, or whether the accused is in danger of being subjected to an infamous punishment; Ex parte ler ▼. Wentworth, 84 Me. 25, 24 Atl. 466, 17

A crime which formerly incapitated a person committing it from giving evidence as a witness; such as treason, prcemunire, felony, and every species of the crimen falsi, as perjury, forgery, and the like.'

A crime which entails infamy upon one who has committed it. See INFAMY. The term “infamous”"—4. ¢., without fame or good report—was applied at common law to cer tain crimes, upon the conviction of which a person became incompetent to testify as a witness, upon the theory that a person would not commit so heinous a crime unless he was so depraved as to be unworthy of credit. These crimes are treason, felouy, and the crimen jalst. Abbott. A crime punishable by imprisonment in the state prison or penitentiary, with or tution that “no parson shall be r for a capital or otherwise inme unless on 2 presentment or inof a grand jury.” 117 U.S. 348, %, Rep. 777. ous, * as used in the fifth amendment to ited States constitution, in reference to includes those only of the class called n filet," which both involve the charge of od, aad may also injuriously affect the pubistration of justice by introducing falseand fraud. 15 N. B. R. 835. the Revised Statutes of New York the term ous crime,” when used in any statute, is d to be construed as including every offense nishabie with déath or by imprisonment in a fie-prison, and noother, 2 Rey. St. (p. 702, § 31,) 1 § 33.