4 F. 198 | U.S. Cir. Ct. | 1880
The defendant, being on trial for counterfeiting the coin of the United States, has peremptorily challenged three of the jurors tendered to him, and claims the .right to challenge another, and any number to the extent of 10, under section 819 of the Eevised Statutes. He insists that the offence of mating counterfeit coin is a felony at common law, and therefore a felony in the purview of that section; he also insists that being punishable by imprisonment at hard labor, which necessarily implies confinement in a •penitentiary, it is a felony according to the ordinary acceptation of the term in American law; that congress used the term in that sense in this statute, and did not intend to indi- ■ sate capital offences already provided for by the same section of the Eevised Statutes.
, Section 819, above referred to, is as follows: “When the affence charged is treason or a capital offence, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony, the ieféndant shall be entitled to ten and the -United States to three peremptory challenges, and in all other cases, civil and;
It is apparent that it was here intended to designate by the term “any other felony,” other offences than capital offences, for they are otherwise specially provided for by this section.
Prior to legislation by congress this matter of peremptory challenges in the federal courts was in some confusion until the supreme court declared that they might, by rule, adopt the state practice. U. S. v. Shackleford, 18 How. 588; U. S. v. Douglas, 2 Blatchf. 207; U. S. v. Reed, Id. 435, 447, and note; U. S. v. Coltinyham, Id. 470; U. S. v. Tallman, 10 Blatchf. 21; U. S. v. Devlin, 6 Blatchf. 71.
When we could resort to the state practice it was generally found that legislation had accurately regulated the right of challenge by distinctly classifying offences with such statutory definitions as left no room for doubt. But since congress has legislated we can no longer look to the state laws for guidance, nor to the common law, but only to the acts of congress themselves, which, unfortunately, have only increased the confusion by the use of an indefinite term. I am not advised of any reported case construing this section, nor of the practice in regard to it, except that it is said at the bar that heretofore in this district 10 challenges have not been allowed in any case where the offence charged was not, by the statute creating it, declared to be a felony. The first act of congress, passed March 3, 1865, (13 St. 500,) after providing for treason and capital offences, as is done by this section 819, provided that, “on the trial of any other offence in which the right of peremptory challenge now exists, the defendant shall he entitled to ten and the United States to two peremptory challenges.” The criticism of Judge Gonkling, in the fifth edition of his Treatise, page 682, on this act, demonstrates how indefinite were the terms used, and he concludes that tlm section was nugatory as to all crimes except treason and capital offences: because the right of peremptory challenge, he says, only exists in cases of felony, and now nothing is felony except capital offences. In this criticism the learned district judge of Oregon seems to concur, for ho also declares the sec
The supreme court of Alabama said, in Harrison v. State, 55 Ala. 239, 241, that it is not easy to determine in all cases what are felonies and crimen falsi. “To predicate of an act,” says the supreme court of Ohio, “that it is felonious, is simply to assert a legal conclusion as to the quality of the act; and unless the act charged, of itself, imports a felony, it is not
The term “felony” appears to have been long used to signify the degree or class of crime committed, rather than the penal consequences of the forfeiture occasioned by the crime according to its original signification. 1 Archb. Cr. Pl. 1, note; 1 Buss, on Crimes, 43.
Capital punishment by no means enters into the true definition of felony. Strictly speaking, the term comprised every species of crime which occasioned at common law the total forfeiture of either lands or goods, or both. That was the only test. Felonies by common law are such as either concern the taking away of life, or concern the taking away of goods, or concern the habitation, or concern the obstruction of the execution of justice in criminal and capital causes, as escapes, rescues, etc. 1 Hale’s P. C. 411. These crimes were of such enormity that the common law punished them by forfeiture: (1) the offender’s wife lost her dower; (2) his children became base and ignoble and his blood corrupted; (3) he forfeited his goods and chattels, lands and tenements. The superadded punishment was either capital or otherwise, according to the degree of guilt; that is, the turpitude of the offence. There were felonies not punishable with death, and on the other hand there were offences not felonies which were so punishable. However, the idea of felony was so generally connected with capital punishment, that, erroneously, it came to be understood that all crimes punishable
Tested by the common law, then, this term has no very-exact and determinate meaning, and can apply to no cases in this country except treason, where limited forfeiture of estate is allowed. But technically that is a crime of a higher grade than felony, although it. imports also felony. If it be conceded that capital punishment imports a felony, there can be none, at common law, except capital crimes. But that test is untechnical and founded in error. It does not always apply, and it is as arbitrary to say that a crime punished capitally is a felony, as it is to say that one punished by imprisonment in the penitentiary is a felony. Our ancestors brought with them the common-law gradations of crime, as they stood in their day, and although they organized a government which is wholly destitute of a criminal common law, its influence has always prevailed to produce incongruities arising out of an attempt, even when creating new offences, unknown to any law except our own peculiar system, to keep up its gradations of crime. The supreme court, in the case last cited, points out the distinction between the use of the word “felony” as descriptive of an offence, and as descriptive
In American law, forfeiture as a consequence of crime being generally abolished, the word “felony” lias lost its original and characteristic meaning, and it is rather used to denote any high crime punishable by death or imprisonment. Bur-rill’s Diet, title “Felony.” The term is so interwoven with our criminal law that it should have a definition applicable to its present use; and this notion of moral degradation by confinement in the penitentiary has grown into a general understanding that it constitutes any offence a felony, just as, at common law, the idea of capital punishment became inseparably connected with that of felony. There is, therefore, much force in the suggestion of counsel that since we cannot define this word, as used iu this statute, by the common law, it must bo understood that congress used it in this modern sense. Because, where the words of a statute construed technically would be inoperative, but construed according to their common signification would have a reasonable operation, the courts do sometimes adopt the latter construction. Yet it will be found that this modern idea of felony has come into general use by force of state legislation on the subject, so far as it is legally established. From a very early day, and as a necessity, the state legislatures have passed laws defining and enumerating felonies as those crimes punishable by confinement in the penitentiary; and this has come to he the law in nearly every state. In Tennessee the law of 3 829 elaborately enumerates felonies, and punishes them with hard labor in the jail or penitentiary, and the act of 1873, chapter 57, makes all crimes, punishable by confine
There is no uniformity in tbe legislation of congress as to tbe punishment of criminal offences, and we often find statutory misdemeanors punished more severely than statutory felonies; and while some of tbe statutes prescribe bard labor as a part of tbe punishment, when necessarily tbe confinement must be in some prison where it can be so enforced, on tbe other band tbe simple imprisonment prescribed may become confinement with bard labor by selecting a prison where it is a part of tbe discipline; so that we often find prisoners convicted of tbe same offence, and sentenced to tbe same punishment, un-dergoingin fact different punishments. Ex parte Karstendick, 93 U. S. 396. In this case it is held that it is not tbe intention of our statutes to limit confinement in tbe penitentiary to those offences where bard labor is imposed. Eev. St. § 5539. We find it, therefore, impracticable to apply any sucb test as that prescribed by tbe state legislation above mentioned, as tbe legislation of congress now stands, to tbe determination of tbe meaning of tbe word “felony” as used in section 819 now under consideration.
But, aside from this, nothing is better settled than that we cannot look to tbe state laws, in tbe criminal jurisprudence of tbe United states, for tbe characteristic elements which go to make up an. offence, and enter into it as a part of its legal status-, nor to tbe common law; nor even to tbe character of tbe punishment. Tbe federal courts take no cognizance of .state statutes in criminal proceedings, and deduce no criminal jurisdiction from tbe common law, which has no force, ■directly or indirectly, to make an act an offence not made so ■by congress; tbpugb in all matters respecting tbe accusation and trial of offenders, not otherwise provided for, we are
In those cases whero the state laws have been adopted as in section 5391 of the Eevised Statutes, they stand as if the act of congress had defined the offences in the very words of the state law; and in those cases where congress has been content to denounce the offence by its common-law name, as in murder and rape, for example, (Rev. St. 5339, 5354,) they stand as if congress had re-enacted the common law totidem verbis. And in such cases, unquestionably, if the crime be a felony at common law or by state statute, it is a felony under the act of congress; and if not punished capitally would fall within the designation of “any other felony,” as used in this section 819, by force, not of the common law or state statute, but of the federal statute. Murder is a felony at common law, but it may be doubted if rape is, it having been made so by statute. Merton, 2; 1 Hale’s P, C. 226. If this latter offence were not punished capitally, and we were confined, as in some of the states, to the ancient common law, and not that existing at the time of the revolution, it would become a very difficult matter to determine how it was to be ruled under this section 819. This is mentioned to illustrate the almost inextricable perplexity which arises from the use of this word “felony” in the present state of our law, in acts of congress, without some statutory definition of it. It does not follow, however, because we can find no common-law definition of this term which will give it and this statute operation according to that law, and are forbidden to adopt the definition found in the modern use of it in state statutes, that this
It only remains to ho determined whether the offence charged in this indictment comes within either of these categories. Making counterfeit coin was by the ancient common law treason, and subsequently a felony, while uttering or passing it was only a misdemeanor. Fox v. Ohio, 5 How. 410, 433; Tomlin’s Dict, title “Coin;” 1 Hale’s P. C. 210, 224; U. S. v. M'Carthy, 4 Cranch’s C. C. 304; U. S. v. Shepherd, 1 Hughes, 521. The act of 1790 (1 St. 115) declares counterfeiting the public securities a felony, and punished it with death. The act of 1825 reduced the punishment to hard labor not exceeding 10 years. 4 St. 119. The act of 1806, the first to protect the coin, declared counterfeiting a felony punishable by imprisonment at hard labor. 2 St. 404. The act of 1825 declared counterfeiting the coin a felony punishable with imprisonment at hard labor not exceeding 10 years. 4 St. 121. The act of 1878 declared counterfeiting treasury notes a felony, as did the acts of 1847 and 1861. 9 St. 120; 12 St. 128; 17 St. 434. Counterfeiting postage stamps was declared felony by the acts of 1851 and 1853. 9 St. 589 ; 10 St. 256. Counterfeiting three-cent pieces was by the act of I860 made a misdemeanor. 13 St. 518.
The Revised Statutes drop this classification, as does the act of 1877, and these offences are no longer declared felo
It is ruled that the defendant can have but three challenges.