Page:Federal Reporter, 1st Series, Volume 9.djvu/909

 894 FEDERAL SEPOKTEB. �ing the place of the impriaonmeat in the discretion: of the court. la it, then, to be held as a legal proposition that imprison ment in the peiiitentiary, which is often at the discretion of the court, makes the bffenoe infamous, whereas if, in its discretion, the imprisonment were ordered to be in the common jail it would be non-infamous? Again, if the imprisonment ordered is for more than a year, although hard labor is not denounced, yet the sentence may be to the peniten- tiary. Shall such shifting, discretionary, and arbitrary rules settle the important constitutional question presented? That is, if the court chooses to make the place of imprisonment, on conviction, in the penitentiary, the offence is infamous; otherwise, not. Suppose trial and conviction had on an information under: any of the many statutes, where it is in the discretion of the court to sentence to the* common jail or to the penitentiary, or to fine and imprisonment, or imprisonment alone, with or without hard labor, etc., and the court in its discretion sentences to the penitentiary, does the offence thereby become infamous; whereas, if the sentence had been to the jail or to payment of a fine it would have been non-infamous? �But all are of the opinion that it is not, as a general rule, the pun- ishment whioh determines the nature of the offence, and if it were not so the absurd resuit would follow that in the cases above sup- posed the character of the offence would not depend on its intrinsic quality, but on the discretion of the judge who passes sentence. These extreme illustrations are presented in order to show the im- portance of having some well-defined rules which all can under- stand. �It has been deemed better not to pass through a careful analysis of the many cases cited, or to review the same, but to present the subject with its attendant difficulties. �The conclusions reached are that under the United States consti- tution and statutes there are no infamous crimes except thoae therein denounced as capital, or felonies, or punished with disqualification as witnesses or jurors. If congress makes an offence infamous, it must be prosecuted through indictment; if it makes it non-infamous, it can be pursued through information. This necessarily follows from the fact that under the United States constitution there are no crim- inal offences other than what congress prescribes, and unless it declares directly or inferentially that an offence is infamous it must be pronounced otherwise. There is no other safe or consistent rule. �A reference, therefore, to the statute, cited at the beginning of this ��� �