This Court cannot discharge on habeas corpus a person imprisoned
under the sentence of a circuit or district court in a criminal
case unless the sentence exceeds the jurisdiction of that court or
there is no authority to hold the prisoner under the sentence.
The provision of Rev.Stat. § 1022, authorizing certain offenses
to be prosecuted either by indictment or by information, does not
preclude the prosecution by information of such other offenses as
may be so prosecuted consistently with the Constitution and laws of
the United States.
In the record of a general conviction and sentence upon two
counts, one of which is good, a misrecital of the verdict as upon
the other count only, in stating the inquiry whether the convict
had aught to say why sentence should not be pronounced against him,
is no ground for discharging him on habeas corpus.
In the record of a judgment of a district court sentencing a
person convicted in one state to imprisonment in a prison in
another state, the omission to state that there was no suitable
prison in the state in which he was convicted, and that the
Attorney General had designated the prison in the
Page 114 U. S. 418
other state as a suitable place of imprisonment is no ground for
discharging the prisoner on habeas corpus.
A certified copy of the record of a sentence to imprisonment is
sufficient to authorize the detention of the prisoner, without any
warrant or mittimus.
A person sentenced to imprisonment for an infamous crime,
without having been presented or indicted by a grand jury as
required by the Fifth Amendment of the Constitution, is entitled to
be discharged on habeas corpus.
A crime punishable by imprisonment for a term of years at hard
labor is an infamous crime within the provision of the Fifth
Amendment of the Constitution, that "No person shall be held to
answer for a capital or otherwise infamous crime, unless on a
presentment or indictment of a grand jury."
This is a petition for a writ of habeas corpus presented to this
Court by a man confined in the House of Correction at Detroit, in
the State of Michigan, under a sentence to be imprisoned there for
fifteen years at hard labor passed by the District Court of the
United States for the Eastern District of Arkansas upon an
information filed by the district attorney for that district.
The record of the conviction and sentence, a copy of which was
annexed to the petition, showed the following case:
The information, which was filed by leave of the court,
contained two counts: the first count upon Rev.Stat. § 5430 for
unlawfully having in possession, with intent to sell, an obligation
engraved and printed after the similitude of securities issued
under authority of the United States, to-wit, of an
interest-bearing coupon bond of the United States, and the second
count upon § 5431 for passing, with intent to defraud, a
counterfeited interest-bearing coupon bond of the United States,
and each count alleging that the bond was in the words and figures
of a copy attached to the indictment and made part thereof. That
copy was of an instrument purporting to be a bond of the United
States Silver Mining Company of Denver City, Colorado, having
printed at its head the words "THE UNITED STATES" in large and
conspicuous capitals, followed on a lower line by the words "SILVER
MINING COMPANY OF DENVER CITY, COLORADO" in much smaller and less
distinct type, and bearing the signatures of "R. H. Hllson,
Pres't," and "J. H. Mayson, Sec'y," and otherwise numbered and
lettered very much like a genuine bond of the United States.
Page 114 U. S. 419
The defendant filed a general demurrer to the information, which
was overruled by the court, and he then pleaded not guilty, and was
tried by a jury, who returned a general verdict of guilty, and he
moved for a new trial for insufficiency of the evidence to support
the verdict.
The rest of the record (a certified copy of which was the only
paper delivered to the keeper of the house of correction) stated
that the defendant was brought to the bar in the custody of the
marshal, and his motion for a new trial overruled,
"and the said defendant, being now inquired of by the court if
he have aught to say why the judgment and sentence of the court
should not now be pronounced against him upon the verdict and
finding of the jury in this case finding him guilty of passing a
counterfeit United States bond, and saying nothing further than he
hath already said, and the court being now well advised in the
premises, it is therefore considered, ordered, adjudged, and
sentenced that said defendant, James S. Wilson, do pay to the
United States a fine of five thousand dollars for said offense and
all the costs of this proceeding, and that the United States have
execution therefor, and that he be imprisoned for and during the
term of fifteen years at hard labor in the house of correction at
Detroit, Michigan, and that the said marshal of this district
convey the said prisoner to the house of correction aforesaid, and
deliver him to the custody of the keeper thereof, and that the
clerk of this court make out for said marshal two copies of this
judgment and sentence, duly certified under the seal of this court,
one of which the said marshal shall deliver to the keeper of said
house of correction and the other return and file in this court
with the receipt of said keeper thereon."
The offense described in Rev.Stat. § 5430 is punishable by a
fine of not more than $5,000 or by imprisonment at hard labor not
more than fifteen years, or by both, and the offense described in §
5431 is punishable by a like fine and imprisonment.
The petitioner alleged in his petition and contended in argument
that his imprisonment was illegal upon the following grounds:
First. That in excess of the power of the court, and in
violation
Page 114 U. S. 420
of the Fifth Amendment of the Constitution, he had been held to
answer for an infamous crime and punished by a fine of five
thousand dollars and imprisonment for the term of fifteen years at
hard labor without presentment or indictment by a grand jury.
Second. That he was held under a judgment void and in excess of
the power of the court upon an information for a crime which was
not committed against the provisions of chapter 7 of the title
"Crimes" in the Revised Statutes, in which cases informations were
expressly authorized, and to which they were impliedly restricted,
by § 1022 of those statutes.
Third. That the judgment was void and in excess of the power of
the court because the conviction and the sentence were for
different offenses, the conviction being for having in possession a
bond of a mining company in the similitude of a United States bond
and the sentence being for passing a counterfeit United States
bond.
Fourth. That he was held by the keeper of the Detroit House of
Correction without authority of law because the order of the court
for his imprisonment did not show that the court had determined two
questions of fact which were made by Rev.Stat. §§ 5541, 5546,
conditions precedent to the exercise of its power to sentence to a
prison outside the State of Arkansas, namely (1) that there was no
suitable prison in that state and (2) that the Attorney General had
designated the Detroit House of Correction as a suitable
penitentiary in another state.
Fifth. That the keeper had no warrant or mittimus authorizing
him to hold the prisoner, as required by Rev.Stat. § 1028.
MR. JUSTICE GRAY, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It is well settled by a series of decisions that this Court,
having
Page 114 U. S. 421
no jurisdiction of criminal cases by writ of error or appeal,
cannot discharge on habeas corpus a person imprisoned under the
sentence of a circuit or district court in a criminal case unless
the sentence exceeds the jurisdiction of that court or there is no
authority to hold him under the sentence.
Ex Parte
Watkins, 3 Pet. 193 and
32 U. S. 7 Pet.
568;
Ex Parte
Lange, 18 Wall. 163;
Ex Parte Parks,
93 U. S. 18;
Ex
Parte Siebold, 100 U. S. 371;
Ex Parte Curtis, 106 U. S. 371;
Ex Parte Carll, 106 U. S. 521;
Ex Parte Yarbrough, 110 U. S. 651;
Ex Parte Crouch, 112 U. S. 178;
Ex Parte Bigelow, 113 U. S. 328.
None of the grounds on which the petitioner relies except the
first requires extended discussion.
The provision of Rev.Stat. § 1022, derived from the Civil Rights
Act of May 30, 1870, c. 114, § 8, authorizing certain offenses to
be prosecuted either by indictment or by information, does not
preclude the prosecution by information of other offenses of such a
grade as may be so prosecuted consistently with the Constitution
and laws of the United States.
The objection of variance between the conviction and the
sentence is not sustained by the record. The first count is for
unlawfully having in possession, with intent to sell, an obligation
engraved and printed after the similitude of securities issued
under authority of the United States, and the copy annexed and
referred to in that count is of such an obligation. Both the
verdict and the sentence are general, and therefore valid if one
count is good.
Snyder v. United States, 112 U.
S. 216. The misrecital of the verdict, in the statement
of the intermediate inquiry whether the prisoner had aught to say
why sentence should not be pronounced against him, is no more than
an irregularity, or error, not affecting the jurisdiction of the
court.
The omission of the record to state, as in
Ex Parte
Karstendick, 93 U. S. 396, that
there was no suitable penitentiary within the state, and that the
Attorney General had designated the house of correction at Detroit
as a suitable place of imprisonment outside the state, is even less
material.
The certified copy of the record of the sentence to imprisonment
in the Detroit House of Correction, if valid upon its
Page 114 U. S. 422
face, is sufficient to authorize the keeper to hold the
prisoner, without any warrant or mittimus.
People v.
Nevins, 1 Hill (N.Y.) 154.
But if the crime of which the petitioner was accused was an
infamous crime, within the meaning of the Fifth Amendment of the
Constitution, no court of the United States had jurisdiction to try
or punish him except upon presentment or indictment by a grand
jury.
We are therefore necessarily brought to the determination of the
question whether the crime of having in possession, with intent to
sell, an obligation engraved and printed after the similitude of a
public security of the United States, punishable by fine of not
more than $5,000, or by imprisonment at hard labor not more than
fifteen years, or by both, is an infamous crime, within the meaning
of this amendment of the Constitution.
The first provision of this amendment, which is all that relates
to this subject, is in these words:
"No person shall be held to answer for a capital or otherwise
infamous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in
the militia, when in actual service in time of war or public
danger."
The scope and effect of this, as of many other provisions of the
Constitution, are best ascertained by bearing in mind what the law
was before.
Mr. William Eden (afterwards Lord Auckland), in his Principles
of Penal Law, which passed through three editions in England and at
least one in Ireland within six years before the declaration of
independence, observed:
"There are two kinds of infamy: the one founded in the opinions
of the people respecting the mode of punishment; the other in the
construction of law respecting the future credibility of the
delinquent."
Eden's Principles of Penal Law, c. 7, § 5.
At that time it was already established law that the infamy
which disqualified a convict to be a witness depended upon the
character of his crime, and not upon the nature of his punishment.
Pendock v. Mackinder, Willes 665; Gilb. Ev 143; 2 Hawk. c.
46, § 102;
The King v. Priddle, 1 Leach (4th ed.)
Page 114 U. S. 423
442. The disqualification to testify appears to have been
limited to those adjudged guilty of treason, felony, forgery, and
crimes injuriously affecting by falsehood and fraud the
administration of justice, such as perjury, subornation of perjury,
suppression of testimony by bribery, conspiring to accuse one of
crime, or to procure the absence of a witness, and not to have been
extended to cases of private cheats, such as the obtaining of goods
by false pretenses, or the uttering of counterfeit coin or forged
securities. 1 Greenl.Ev. § 373;
Utley v. Merrick, 11 Met.
302;
Fox v. Ohio, 5
How. 410,
46 U. S.
433-434.
But the object and the very terms of the provision in the Fifth
Amendment show that incompetency to be a witness is not the only
test of its application.
Whether a convict shall be permitted to testify is not governed
by a regard to his rights or to his protection, but by the
consideration whether the law deems his testimony worthy of credit
upon the trial of the rights of others. But whether a man shall be
put upon his trial for crime without a presentment or indictment by
a grand jury of his fellow citizens depends upon the consequences
to himself if he shall be found guilty.
By the law of England, informations by the Attorney General,
without the intervention of a grand jury, were not allowed for
capital crimes, nor for any felony, by which was understood any
offense which at common law occasioned a total forfeiture of the
offender's lands or goods, or both. 4 Bl.Com. 94, 95, 310. The
question whether the prosecution must be by indictment, or might be
by information, thus depended upon the consequences to the convict
himself. The Fifth Amendment, declaring in what cases a grand jury
should be necessary, and in effect affirming the rule of the common
law upon the same subject, substituting only, for capital crimes or
felonies, "a capital or otherwise infamous crime," 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
Page 114 U. S. 424
be held to include also crimes infamous in their nature,
independently of the punishment affixed to them.
A reference to the history of the proposal and adoption of this
provision of the Constitution confirms this conclusion. It had its
origin in one of the amendments, in the nature of a bill of rights,
recommended by the convention by which the State of Massachusetts
in 1788 ratified the original Constitution, and as so recommended
was in this form:
"No person shall be tried for any crime by which he may incur an
infamous punishment or loss of life until he be first indicted by a
grand jury, except in such cases as may arise in the government and
regulation of the land and naval forces."
Journal Massachusetts Convention 1788 (ed. 1856), 80, 84, 87; 2
Elliot's Debates 177. As introduced by Mr. Madison in 1789 at the
first session of the House of Representatives of the United States,
it stood thus: "In all crimes punishable with loss of life or
member, presentment or indictment by a grand jury shall be an
essential preliminary." Being referred to a committee, of which Mr.
Madison was a member, it was reported back in substantially the
same form in which it was afterwards approved by Congress, and
ratified by the states. 1 Annals Cong. 435, 760.
Mr. Dane, one of the most learned lawyers of his time, and who
as a member of the continental Congress took a principal part in
framing the ordinance of 1787, for the government of the Northwest
Territory, assumes it as unquestionable that, by virtue of the
amendment of the Constitution, informations "cannot be used where
either capital or infamous punishment is inflicted." 7 Dane, Ab.
280. Judge Cooley has expressed a similar opinion. Cooley,
Principles of Constitutional Law 291.
The only mention of informations in the first crimes act of the
United States is in the clause providing that no person
"shall be prosecuted, tried, or punished, for an offense not
capital, nor for any fine or forfeiture under any penal statute,
unless the indictment or information for the same shall be found or
instituted within two years from the time of committing the
offense, or incurring the fine or forfeiture."
Act April
Page 114 U. S. 425
30, 1790, c. 9, § 32, 1 Stat. 119. For very many years
afterwards, informations were principally, if not exclusively, used
for the recovery of fines and forfeitures, such as those imposed by
the revenue and embargo laws. Acts July 31, 1789, c. 5, § 27, 1
Stat. 43; March 26, 1804, c. 40, § 3, and March 1, 1809, c. 24, §
18, 2 Stat. 290, 532;
United States v. Hill, 1 Brock. 156,
158;
United States v. Mann, 1 Gall. 3, 177;
Walsh v.
United States, 3 Woodb. & Min. 341. Mr. Justice Story,
writing in 1883, said:
"This process is rarely recurred to in America, and it has never
yet been formally put into operation by any positive authority of
Congress, under the national government in mere cases of
misdemeanor, though common enough in civil prosecutions for
penalties and forfeitures."
Story on the Constitution § 1780.
The informations which passed without objection in
United States v.
Isham, 17 Wall. 496, and
United
States v. Buzzo, 18 Wall. 125, were for violations
of the stamp laws, punishable by fine only. And the offense which
MR. JUSTICE FIELD and Judge Sawyer held, in
United States v.
Waller, 1 Sawyer 701, might be prosecuted by information, is
there described as "an offense not capital or otherwise infamous,"
and, as appears by the statement of Judge Deady in
United
States v. Block, 4 Sawyer 211, 213 was the introduction of
distilled spirits into Alaska, punishable only by fine of not more
than $500, or imprisonment not more than six months. Act July 27,
1868, c. 273, § 4, 15 Stat. 241.
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 toward sustaining them for any
crime, a conviction of which would not at common law have
disqualified the convict to be a witness.
United States v.
Shepard, 1 Abb.C.C. 431;
United States v. Maxwell, 3
Dillon 275;
United States v. Block, 4 Sawyer 211;
United States v. Miller, 3 Hughes 553;
United States
v. Baugh, 1 F. 784;
United States v. Yates, 6 F. 861;
United States v. Field, 16 F. 778;
In re Wilson,
18 F. 33.
But, for the reasons above stated, having regard to the
object
Page 114 U. S. 426
and the terms of the first provision of the Fifth Amendment, 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 the 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 the right to insist that he shall not be put upon
his trial, except on the accusation of a grand jury.
Nor can we accede to the proposition, which has been sometimes
maintained, that no crime is infamous, within the meaning of the
Fifth Amendment, that has not been so declared by Congress.
See
United States v. Wynn, 9 F. 886, and 11 F. 57;
United
States v. Petit, 11 F. 58;
United States v. Cross, 1
McArthur 149. The purpose of the amendment was to limit the powers
of the legislature, as well as of the prosecuting officers, of the
United States. We are not, indeed, disposed to deny that a crime,
to the conviction and punishment of which Congress has superadded a
disqualification to hold office, is thereby made infamous.
United States v. Waddell, 112 U. S.
76,
112 U. S. 82.
But the Constitution protecting everyone from being prosecuted,
without the intervention of a grand jury, for any crime which is
subject by law to an infamous punishment, no declaration of
Congress is needed to secure or competent to defeat the
constitutional safeguard.
The remaining question to be considered is whether imprisonment
at hard labor for a term of years is an infamous punishment.
Infamous punishments cannot be limited to those punishments
which are cruel or unusual, because, by the seventh amendment of
the Constitution, "cruel and unusual punishments" are wholly
forbidden, and cannot therefore be lawfully
Page 114 U. S. 427
inflicted even in cases of convictions upon indictments duly
presented by a grand jury.
By the first Crimes Act of the United States, forgery of public
securities or knowingly uttering forged public securities with
intent to defraud, as well as treason, murder, piracy, mutiny,
robbery, or rescue of a person convicted of a capital crime was
punishable with death; most other offenses were punished by fine
and imprisonment; whipping was part of the punishment of stealing
or falsifying records, fraudulently acknowledging bail, larceny of
goods, or receiving stolen goods; disqualification to hold office
was part of the punishment of bribery, and those convicted of
perjury or subornation of perjury, besides being fined and
imprisoned, were to stand in the pillory for one hour, and rendered
incapable of testifying in any court of the United States. Act of
April 30, 1790, c. 9, 1 Stat. 112-117; Mr. Justice Wilson's Charge
to the Grand Jury in 1791, 3 Wilson's Works 380-381.
By that act, no provision was made for imprisonment at hard
labor. But the punishment of both fine and imprisonment at hard
labor was prescribed by later statutes, as, for instance, by the
Act of April 21, 1806, c. 49, for counterfeiting coin or uttering
or importing counterfeit coin, and by the Act of March 3, 1825, c.
65, for perjury, subornation of perjury, forgery, and
counterfeiting, uttering forged securities or counterfeit money,
and other grave crimes. 2 Stat. 404; 4 Stat. 115. Since the
punishments of whipping and of standing in the pillory were
abolished by the Act of February 28, 1839, c. 36, § 5, 5 Stat. 322,
imprisonment at hard labor has been substituted for nearly all
other ignominious punishments not capital. And by the Act of March
3, 1825, c. 65, § 15, reenacted in Rev.Stat. § 5542, any sentence
of imprisonment at hard labor may be ordered to be executed in a
state prison or penitentiary. 4 Stat. 118.
What punishments shall be considered as infamous may be affected
by the changes of public opinion from one age to another. In former
times, being put in the stocks was not considered as necessarily
infamous. And by the first Judiciary Act of the United States,
whipping was classed with moderate
Page 114 U. S. 428
fines and short terms of imprisonment in limiting the criminal
jurisdiction of the district courts to cases
"where no other punishment than whipping, not exceeding thirty
stripes, a fine not exceeding one hundred dollars, or a term of
imprisonment not exceeding six months, is to be inflicted."
Act September 24, 1789, c. 20, § 9, 1 Stat. 77. But at the
present day either stocks or whipping might be thought an infamous
punishment.
For more than a century, imprisonment at hard labor in the state
prison or penitentiary or other similar institution has been
considered an infamous punishment in England and America.
Among the punishments "that consist principally in their
ignominy," Sir William Blackstone classes "hard labor, in the house
of correction or otherwise," as well as whipping, the pillory, or
the stocks. 4 Bl.Com. 377. And Mr. Dane, while treating it as
doubtful whether confinement in the stocks or in the house of
correction is infamous, says, "punishments, clearly infamous, are
death, gallows, pillory, branding, whipping, confinement to hard
labor, and cropping." 2 Dane Ab. 569-570.
The same view has been forcibly expressed by Chief Justice Shaw.
Speaking of imprisonment in the state prison, which by the statutes
of Massachusetts was required to be at hard labor, he said:
"Whether we consider the words 'infamous punishment' in their
popular meaning, or as they are understood by the Constitution and
laws, a sentence to the state prison, for any term of time must be
considered as falling within them. The convict is placed in a
public place of punishment, common to the whole state, subject to
solitary imprisonment, to have his hair cropped, to be clothed in
conspicuous prison dress, subjected to hard labor without pay, to
hard fare, coarse and meager food, and to severe discipline. Some
of these a convict in the house of correction is subject to; but
the house of correction, under that and the various names of work
house and bridewell, had not the same character of infamy attached
to it. Besides, the state prison, for any term of time, is now by
law substituted for all the ignominious punishments formerly in
use, and, unless this is infamous,
Page 114 U. S. 429
then there is now no infamous punishment other than
capital."
Jones v. Robbins, 8 Gray 329, 349. In the same case,
Mr. Justice Merrick, while dissenting from the rest of the court
upon the question whether under the words "the law of the land" in
the Constitution of Massachusetts an indictment by a grand jury was
essential to a prosecution for a crime punishable by imprisonment
in the state prison, and taking a position upon that question more
accordant with the recent judgment of this Court in
Hurtado v.
California, 110 U. S. 516, yet
concurred with the other judges in holding that such imprisonment
at hard labor was an infamous punishment. 8 Gray 370-372.
Imprisonment at hard labor, compulsory and unpaid, is, in the
strongest sense of the words, "involuntary servitude for crime,"
spoken of in the provision of the ordinance of 1787, and of the
Thirteenth Amendment of the Constitution, by which all other
slavery was abolished.
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, and
that the district court, in holding the petitioner to answer for
such a crime, and sentencing him to such imprisonment, without
indictment or presentment by a grand jury, exceeded its
jurisdiction, and he is therefore entitled to be discharged.
Writ of habeas corpus to issue.
