Page:Federal Reporter, 1st Series, Volume 1.djvu/796

 788 FEDBEAL BEPORTEE. �much of the confusion which exists in the minds of many of our best lawyers upon the question now raised in this case. �By the Virginia statute, ail offences are declared to be felonious which are punishable capitally, or by confinement in the penitentiary ; and if this statute prescribed a rule of decision for the federal courts in the state when trying crimi- nal offences against the United States, there is no doubt that the defendant at bar could be tried for bis offence only upon an indictment, inasmuch as the offence is punishable by hard lahor, which is not necessarily, but is generally, a species of punishment inflicted only in a penitentiary. But this state statute does not apply at ail in the federal courts in crimi- nal trials. The rules for our procedure in such cases are derived from the common law. See XJ. S. v. Reid, 12 How. 561. �Under the federal laws, nothing is felony unless expressly 60 declared to be by congress, with exception of capital offences. And it bas always been the policy of congress to avoid, as much as possible, the multiplication of statutory fel- onies. See 1 Greenleaf on Evidence, § 373; apd 1 Whar. €rim. Law, § 760. �I may add that informations are never brought in this court except after formai complaint under oath, and full «xamination before a commissioner of the court wherein the witnesses testify while confronted by the accused; nor are ihey filed except by leave of court. In the case at bar the information was filed upon motion for leave to do so, in the presence of the accused and his counsel, without objection on their part or offer to show cause to the contrary. �On the whole, therefore, I must overrule the objection in arrest of judgment founded upon the fifth article of the amendments to the constitution. �2. I have already virtually disposed of the second objec- tion, viz., that this is an information charging larceny, and, for that reason, is defective in not charging ownership of the treasury notes in some person other than the accused. I have already shown that this is a prosecution for the embez- zlement of a letter, and that one of the ingredients of the ��� �