Page:Federal Reporter, 1st Series, Volume 6.djvu/878

 866 FEDERAL REPORTER. �and that "every other crime is a misdemeanor," submitted by the revisers of the statutes in their draft, was rejected. See 2 Draft Eev. St. 2561, title, "Crimes," �In early times the character; of the crime was determined hy the punishment inflicted, but in modern times the act itself, its nature, purpose, and effect are looked at for the pur- pose of determining whether it be infamous or not. The People V. Whippk, 9 Cow. 708; 2 Starkie on Ev. part 4, p. 716. And while under our constitution the legality of an information may be affected by the nature of the punishment to this extent, that by virtue of the fiJth amendment ail in- formation is not legal in any case where the punishment is death, — and such was the punishment prescribed for the act of passing counterfeit money by the act of 1790, repealed by the act of March 3, 1825,— in ail other cases the legality of a prosecution by information, not prohibited by positive stat- ute, must, as I conceive, depend upon the judicial question whether the nature, purpose, and effect of the act made crim- inal is such as to bring it within the meaning of the term "infamous crime," as that term was understood at common law, and cannot be determined by reference to any declara- tion on the subject contained in the statute, or by the nature of the punishment which the statute prescribes. Any other rule would place it in the power of the legislature to nuUify the provision in the constitution by declaring that no offence against the United States shall be an infamous crime. �But if the rule be otherwise, and it be competent for the legislature to designate what offences against the United States are infamous crimes, or to make a crime infamous by declaring it to be a felony, the resuit here would be the same, because the statute is silent on the subject; and, in the ab- sence of some positive provision, the presumption is against an intention to make an offence an infamous crime. U. S. V. Cross, 1 McArthur, 149. For these reasons I am of the opinion that the prosecution of the accused for the crime of passing counterfeit trade dollars by an information instead of by an indictment is legal, and that judgment may properly be ^ronounced upon the verdict rendered. ��� �