Page:Federal Reporter, 1st Series, Volume 4.djvu/214

 .200 FEDEEAL EEPOETEB. �I&OÛ, nugatory. U. S. v. Randall, 1 Deady, 524, 548. Tet, Btrange to say, the act of June 8, 1872, (17 St. 282,) substi- tutes this woxà felony for the phrase in the act of 1865 which was thus condemned, because it limited the right of peremp- tory challenges to cases of felony, and therebyleft it impossi- ble to determine under the actof 1865 to what cases it should apply. Perhaps a proper construction of the act of March 3, 1865, taken in connection with the law asitthen stood under the decision in the case of United States v. Shackleford, supra, and the act of 1840, wonld have been to look to the state practice to determine in what cases the right of peremptory challenge "now exiats," and to allow 10 challenges in ail such cases; for the state practice then furnished not only the rule as to number, but the rule as to the kind of offence in which the right of peremptory challenge existed, as we have already seen. There would have been some certainty in this, but now there is no other course but to determine by the oommon law what congress meant in this section of the Revised Statutes by the words "any other felony." If congress uses a common- law term in defining a crime, or in any statute, we must look to the common law for a definition of the term used. 2 Abb. Pr. 171; Conk, Treatise, 178, (5th Ed.;) U. S. v. Palmer, 3 Wheat. 610; U. S. v. Wilson, Baldw. 78, 93; U. S. v. Bar- ney, 5 Blatchf. 294, 296; U. S. v. Magill, 1 Wash. 463. The Massachusetts Code commissioners, many years ago, in enumerating /cZimes within the provisions of their Code, in a note, add that the meaning "of the word 'felony' (as by them defined) is limited to the use of the word in this Code, and is not to be confounded with the common-law signification of the same term, whatever that meaning may be, for it is a matter of no little difficulty to settle it." Eeport, title "Expia- nation of Terms Cited;" 1 Hale's P. C. (A. D. 1847) 575, note. The supreme court of Alabama said, in Harrison y. State, 55 Ala. 239, 241, that it is not easyto determine in ail cases what are felonies and crimen falsi. "To predicate of an act," says the supreme court of Ohio, "that it isfelonious, 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 ����