Page:Federal Reporter, 1st Series, Volume 9.djvu/902

 UNITED STATES V. WYNN. 887 �the mail, or any letter or packet therefrom, or froni any post-office, etc., with or without the consent of the person having custody thereof, and open, embezzle, pr destroy any such mail, letter, or package which shall contain any note, i)ond, etc.; * * * any person who shall by fraud Or deception obtain ' from any person having custody ttereof any such mail,\letter, etc., although »wt employed in the postal service, shall be'puiiishableby imprisonment at bard labor for not leSs than one year and not more than'flve years." �Under said information the defendant wias tried before ia jury and found guilty. . ', �The court assigned as counsel for the defendant, Mesisrs. Bakewell and Stewart, "who have assiduonsly attended to the case, and pre- sented to the oourt, in the light of authorities and argument, their views of the law which should govem United States courts in this class of vexed and undetermined cases. With equal diligence the eounsel for the United States have prosecuted the oontroversy. �The first question is, what, under the fifth amendment of the United States constitution, is ian infanaouc crime? and the secorid, whether the offenoe charged is within that provision. Within a few years past there has been much discuBsionof the main question, and sevirai decisions by the United States courts, eaohof which encounters and «ndeavors to solve, at least to a limited extent, the many and impor- tant difficulties involved. They are too numerous for detailed analysis or review. Many of them fully consider what at common law were infamous crimes, and proceed on the theory that if a likeoffenee exists under United States statutes, it must be considered "infamous" under the federal statutes. Hence', the elaborate review in such . cases of the common law, and British statutes existing at the date of the United States constitution, and original amendments thereto. Counsel in this case have in the most praiseworthy manner presented the whole Une of English decisions and authority on thia subject, which, if conclusive or persuasive, would have an essential bearing m the question. �At the date of the United States constitution there were no federal offences except, impliedly, treason. The fifth amendment refera to "capital offences and other infamous crimes." Were those offences which at that time were capital or infamous at common law to be considered as within the purview of that amendment, if thereafter congress chose to specify offences against the United States, and did not denounce capital or infamous punishment on conviction thereof? Of the many offences at common law, and by British, statutes,' which were capital, very few were^ even made federal offences or punishable ��� �