279 F. 147 | E.D.N.Y | 1922
The defendant has been committed to serve a sentence for violation of section 21, title 2, of the Prohibition Eaw (41 Stat. 314), and is before the court upon a writ of habeas corpus. By the writ of habeas corpus he seeks to object to the validity of the procedure by which he was brought into court, tried and convicted, although the time to appeal from the said conviction has expired, and although he is now in the position of not having any appeal pending from said judgment of conviction and sentence.
The defendant was arrested and tried upon an information, and he now contends that because he was sentenced to a jail where hard labor may be required, or because he might be sentenced under such a charge to an institution where hard labor is possible or required, that the proceedings can be instituted only by indictment.
The defendant argues that the, definition of an infamous crime has not been changed; that by the language.of Amendment 5 to the Constitution such crimes are left forever triable by jury, and may be instituted only by indictment, even though the crime may be specifically denominated a misdemeanor, or by the length- of punishment provided may come within the language of the last part of section 335 of the Penal Code of the United States, which reads as follows:
“All offenses which, may be punished by death, or imprisonment for a term exceeding one year, shall be deemed felonies. All other offenses shall be deemed misdemeanors.” Comp. St. § 10509.
This statute went into effect in 1909, and the present case has arisen since that time.
But the defendant contends that, where the court had no -jurisdiction over the defendant, objection may be raised, even during the serving of the sentence, and without reference to whether there has or has not been an appeal by writ of error. It is necessary, therefore, to consider whether the United States obtained any valid jurisdiction over the defendant, and over the particular allegation of crime with which he was charged, by the filing of an information in the case. Concededly the information was sufficient to take the place of an indictment, if the crime charged was a misdemeanor, and not an infamous crime. The sentence actually imposed in this case was to the Essex county jail in the state of New Jersey, which is an institution where what the defendant contends is the equivalent of “hard labor” — that is, involuntary work — is required as part of the discipline from those under confinement. Chapter 271, Eaws N. J. 1917.
It is unnecessary to discuss the procedure by which the Department of Justice has made arrangements for the receipt of federal prisoners, under which this court, as a matter of convenience, by reason of the aforesaid arrangement, sends prisoners to this institution to serve sentence by virtue oE sections 5541 and 5546 of the Revised Statutes (Comp St. §§ 10527, 10547).
The defendant is not complaining of the choice of institutions and his sole proposition is that a charge under section 21 of the Prohibition Daw, by rendering the. defendant liable to imprisonment in an institution where the equivalent- of hard labor accompanies sentence, subjects him to what has been by the Constitution preserved in the class of “infamous” crimes, and therefore that it is capable only of prosecution by indictment. The question is important, in that not only the Prohibition
The question in the case at bar was decided in this court in the case of United States v. Nelson, 254 Eed. 889, in which opinion the language of the statutes is set forth at length. Their provisions are discussed in a quoted decision from United States v. Cobb (D. C.) 43 Fed. 570. The Nelson Case, however, was not conclusive, inasmuch as the information was filed “in time of war,” under section 12 of the Selective Service Law (Comp. St. 1919, Comp. St. Ann. Supp. 1919, § 2019a), and was therefore within the express exception to the Fifth Amendment of the Constitution.
In the case of Yaffee v. United States (C. C. A.) 276 Fed. 499 (see also Hunter v. United States [C. C. A.] 272 Fed. 235, and Brown v. United States, 260 Fed. 752, 171 C. C. A. 490), it was expressly held that the charge of selling liquor under the Volstead Eaw was not an infamous crime, and could be prosecuted by information, citing Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; United States v. Lindsay-Wells Co. (D. C.) 186 Fed. 248; United States v. Quaritius (D. C,) 267 Fed. 227: United States v. Achen (D. C.) 267 Fed. 595; United States v. Baugh (C. C.) 1 Fed. 784.
"What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another.”
It is also stated that by the first Judiciary Act (1 Stat. 73) whipping was treated as a punishment, like fines or short terms of imprisonment, “but at the present day either stocks or whipping might be thought an infamous punishment.”
It is unnecessary to quote from this decision further, nor from the cases of Ex parte Karstendick, 93 U. S. 396, 23 L. Ed. 889; Mackin v. United States, supra; Parkinson v. United States, 121 U. S. 281, 7 Sup. Ct. 896, 30 L. Ed. 959; United States v. De Walt, 128 U. S. 393, 9 Sup. Ct. 111, 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, at page 204, 11 Sup. Ct. 735, 35 L. Ed. 409 — to substantiate the proposition that the classification of the crime either as a felony or misdemeanor, and the determination as to whether it is infamous, depends upon the penalty which may be imposed at the time of sentence.
In the case’ of Logan v. United States, 144 U. S. at page 303, 12 Sup. Ct. 617, 36 L. Ed. 429, it was held that certain crimes, recognized as established in definition and essential elements at the time of the adoption of the Constitution, did not, in the absence of express statute of Congress, change from time to time, if the name of that particular crime was narrowed or broadened, under state legislation. But this in-fact decides the proposition that Congress has the right, under the-Constitution, to remove a crime from the infamous class, or to change’ a certain act from the category of felony to that of misdemeanor.
Similarly the meaning of the words “infamous crime” has been-changed under the acts of Congress as interpreted in the United States courts, and is not necessarily in exact similarity to the meaning of those words under state statutes. Both in state and United States courts, however, the application of the term “hard labor” has become limited in effect. Reforms and humane legislation have given those in prison the benefit of a chance to labor both for their mental and physical well-being, and even in some cases for the purpose of enabling them to earn some help for their dependent families. To hold that the steps forward in aiding prisoners and in removing unnecessary hardship are but an extension of the “infamy” which attaches to a felon is contrary to common sense as well as law, and no legislation is needed to prevent such an effect. The principle of the Rosen Case, supra, fully covers the case at bar.
In so far, therefore, as objection on this ground to a trial upon an ■ information should be deemed waived, if not raised on the trial or as
