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tained, that no crime is infamous, within the meaning of the Fifth Amendment, that has not been so declared by Congress. 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. 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 inflicted even in cases of convictions upon indictments duly presented by a grand jury. What punishments may 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 fines and short terins 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 of September 24, 1789, chap. 20. § 9; 1 Stat. at L. 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 institution has been considered an infamous punishment in

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32 Citing United States v. Wynn, 3 MeCrary, 266; United States v. Petit, 11 Fed. Rep. 58; United States v. Cross, 1 MacArthur, 149.

33 United States v. Waddell, 112 U. S. 76; 5 Sup. Ct. Rep. 35; 28 L. ed. 673.

England and America. 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 by a grand jury, exceeded its jurisdiction, and he is therefore entitled to be discharged."

The practical construction which the cases have put upon the constitutional provision with reference to indictments has been that there must be an indictment in every case in which the imprisonment may be for more than one year, inasmuch as by Section 5541 of the Revised Statutes it is provided that whenever a person is sentenced to more than one year's imprisonment he may be required to serve the sentence in a penitentiary. By the provision of Section 335 of the act of March 4, 1909, revising, amending and codifying the penal laws of the United States, it is declared that "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."

§ 419. Waiver of Constitutional Guaranties.

The law governing the waiver by the accused of his constitutional right to a trial by jury in criminal actions, or to a trial by less than twelve jurors, and, indeed, the waiver of any constitutional guaranty, is not in a clearly determined condition. In cases arising under state constitutions, inharmonious doctrines. have been declared. In some jurisdictions the position has been taken that the guaranties are intended merely for the benefit of the accused and may, therefore, be waived. In other States the courts have held that the guaranty of jury trial in criminal cases is one in which the State also has an interest, and which for that reason may not be waived. In some courts, a third view is taken that the jury is essential to give the court jurisdiction, and that while in case of a plea of guilty, the court may at once pronounce

judgment, because there are no facts to be determined, where the plea is not guilty, an issue is raised which only a jury is competent to decide, 34

In the United States Supreme Court it has been held in Schick v. United States35 that jury trial may be waived in the trial of minor offenses. The constitutional provision, it is said, must be interpreted in the light of the common-law practice as it existed at the time of the adoption of the Constitution, and this practice, as shown by Blackstone's Commentaries, which the court quotes, was that while the word "crimes" technically included misdemeanors as well as felonies, in common usage, a crime denoted "such offenses as one of a deeper and more atrocious dye," and that it is in this sense that the word is used in the constitutional requirement that the trial of all crimes shall be by jury. Public policy, it is declared, does not demand that the lesser offenses, termed misdemeanors, shall be tried by jury, and "where there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy.'

99 36

In Dickinson v. United States,37 however, the Circuit Court of Appeals for the First Circuit held that a cashier indicted for "the unlawful conversion of certain moneys, funds of credit" described as a misdemeanor by Section 5209 of the Revised Statutes, could not consent to a trial by a jury of less than twelve. In this case the court distinguished between the provisions of the first ten amendments which are declared to be in the nature of a Bill of Rights for the benefit of the individual, and the require

34 See note in Columbia Law Review, VIII (1908), 577, and authorities there quoted.

35 195 U. S. 65; 24 Sup. Ct. Rep. 826; 49 L. ed. 99.

36 Justice Harlan dissented in an elaborate opinion, citing inter alia, Hopt v. Utah, 110 U. S. 574; 4 Sup. Ct. Rep. 202; 28 L. ed. 262; Thompson v. Utah, 170 U. S. 343; 18 Sup. Ct. 620; 42 L. ed. 1061; Cancemi v. People, 18 N. Y. 128; Hill v. People, 16 Mich. 351; State v. Carman, 63 Iowa, 130; State v. Mansfield, 41 Mo. 470; Wilson v. State, 16 Ark. 601; Work v. Ohio, 2 Ohio St. 296; U. S. v. Taylor, 3 McCrary, 500.

37 159 Fed. 801.

ments of the Constitution as originally adopted, which establish a form of government which may not be altered by the individual.

The right of the accused to waive jury trial in cases of felony has never come before the Supreme Court; but in Lewis v. United States that court held that, in felonies, the presence of the accused could not be waived either by himself or by counsel. The record must show, affirmatively, the presence of the prisoner in court during the trial.39 It would seem that, in this case at least, the Supreme Court held that a right guaranteed by the Amendments, as distinguished from those in the body of the Constitution, might not be waived.40

§ 420. Right to Jury Trial not Fundamental.

In the majority opinion in Hawaii v. Mankichi11 the rather surprising statement is made that grand and petit juries in criminal proceedings" are not fundamental in their nature, but concern merely a method of procedure" and that, therefore, these two institutions were not to be construed as necessarily introduced into the islands by the resolution of Congress of July 7, 1898, recognizing the islands "as a part of the territory of the United States and subject to the sovereign dominion thereof," and continuing in force the municipal legislation of such islands not inconsistent with such resolution, "nor contrary to the Constitution of the United States." 42

§ 421. Speedy Trial.

The Sixth Amendment secures to the accused a speedy as well as a public trial.

This provision has received very little discussion in the federal

38 146 U. S. 370; 13 Sup. Ct. Rep. 136; 36 L. ed. 1011.

39 Justices Brewer and Brown dissenting.

40 As to the waiver by the accused of his right to plead autrefois acquit, by taking an appeal to a superior court, see p. 816, section entitled "Double Jeopardy."

41 190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 1016.

42 To this doctrine Justice Harlan vigorously dissented, the reasoning of whose opinion it is not easy to answer.

courts, and, so far as the author is aware, no case in which its violation has been asserted has reached the Supreme Court.

§ 422. Public Trial.

The Constitution expressly provides that criminal trials shall be publicly conducted, and, indeed, it would seem that publicity has been a common-law incident of trials for crime. Many of the state constitutions also expressly provide that proceedings shall be public. In numerous cases, however, it has been held by the state courts that this does not prevent the more or less complete exclusion of spectators where public morals have seemed to require it, and where no prejudice to the accused is thereby occasioned. The question has not been passed upon by the federal Supreme Court.

§ 423. Double Jeopardy.

It is provided by a clause of the Fifth Amendment that no person shall be subject for the same offense to be twice put in jeopardy of life or limb.

Cases may occur in which the same act may render the actor guilty of two distinct offenses; as, for example, the passing of counterfeit coin of the United States, which may be an offense both against the United States, and, as a fraud on its citizens, an offense against the State. In such cases the accused cannot plead the trial and acquittal, or the conviction and punishment for one offense in bar to a conviction for the other.44

43 But see contra, State v. Hensley, 79 N. E. Rep. 462.

44 Fox v. Ohio, 5 How. 410; 12 L. ed. 213; U. S. v. Marigold, 9 How. 560; 13 L. ed. 257; Moore v. Illinois, 14 How. 13; 14 L. ed. 306. In the last case the court say: "A man may be compelled to make reparation in damages to the injured party, and be liable also to punishment for a breach of the public peace, in consequence of the same act; and may be said in common parlance, to be twice punished for the same offense. Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. Thus, an assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offense against the United

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