40 F. 755 | U.S. Circuit Court for the District of Eastern Virginia | 1889
The information which the United States attorney moves for leave to file informs the court and1 charges that the accused did, at the election held for a representative in congress in Richmond on the 6th
“Within the last fifteen years, prosecutions by information have greatly increased, and the general current of opinion in the circuit and district courts has been towards 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. 275; U. S. v. Block, 4 Sawy. 215; U. S. v. Miller, 3 Hughes, (U. S.) 553; U. S. v. Baugh, 4 Hughes, (U. S.) 501, 1 Fed. Rep. 784; U. S. v. Yates, 6 Fed. Rep. 861; U. S. v. Field, 21 Blatchf. 330, 16 Fed. Rep. 778; In re Wilson, 18 Fed. Rep. 33. But, for the reasons above stated, having regard to the object and the terms of the first provision of the fifth amendment, [of 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 be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may be imposed by the court. The question is whether tiie crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment, if convicted, he has Use right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.”
“IIow far a convict sentenced by a court of the United States to imprisonment in a state-prison or penitentiary, and not in terms sentenced to hard labor, can be put to work, either as part of his punishment or as part of the disciplino and treatment of the prison, was much discussed at the bar; but we have not found it necessary to dwell upon it, because we cannot doubt that at the present day imprisonment in a state-prison or penitentiary, with or without hard labor, is an infamous punishment. It is not only so considered in the general opinion of the people, but it has been recognized as such in tins legislation of the states ami territories as well as of congress. ”
And in the De Wall Case, it held briefly, repeating its language in the Mackin Case, that “at the present day imprisonment in a state-prison or penitentiary, with or without hard labor, is an infamous punishment,” and could not be inflicted in a prosecution by information. These three decisions of the supreme court furnish our only guide in dealing with the question at bar. If we regard the facts of thd cases reviewed, the deduction from them is that hard labor is the ingredient of the imprisonment that rendered the punishment infamous. But if we regard the language of the court hard labor is not a necessary incident, and mere imprisonment in a state-prison or penitentiary renders the punishment infamous.
One question, however, is still left open by the supreme court; What did it mean by the term “state-prison? ” It is used in juxtaposition and as synonymous with “penitentiary,” the meaning of which is definitely established. All understand a penitentiary to be a prison for the compulsory confinement, generally' at compulsory labor, of convicts from the criminal courts, in Pennsylvania and the southern states these prisons are called “penitentiaries.” But in nearly all the northern states the term “state-prison” is used synonymously with the word “penitentiary.” That designation of such a prison is part of the local vernacular,