FEDERAL REPORTER J1"o1. :43.
to run at the tirnetheinjuryij:!' received; although its results may not be fully developed. Gu.stin v.Jefferson 00., 15 Iowa, 158·. ,: 'There 1s'no view that'ean betaken of the facts as alleged in the peti. tion that would justify'the holding that the cause of action accrued within two'yeats before the' bringing of the action, and hence it follows that the petition on its face shows thaHhe bar of the statute.is applicable thereto. <Denrtlrrer is sustained.
,
·,C·
STATES ,t , .
.;,
COBB.
SAME V. 'SMITH.
SAMEV.
Fox. '
(DistrtctOoukt, W. D. 'Vo£rg£nfa. June 24,1890.) 1.IDAM0118 C1mriIi"':'1NPORMATIOX-STATE-PROON.
,An
2. 8.
SAME-lUPRISONMENT NOT MORE THAN ONE YEAR.
punishable by imp-risol/om,ent for, more than one year is an infamoUlJ crime', .nd'cannot be prosecuted by informatio.n. ; Rev. St. U. S. S 5541, proViding,' incase,of,a sentence for &! longer period <me year, the court ,IDay order U. to te,', or penit,entiary in the or state. "
An cI#ellse 'punishable by'imprisonment not exceeding one year, witbout hard !labor, is noJ;inflmlous, andilDay be prosecuted by information. , UNITIllD SU'tEB-8ENTENOII LESl! THAN A. YEAR-STAT1Il-PRI80N.
, ' 'One sentenced for a term not exceeding one year, with'Out hard labor, cannot be ,confined ina state penitentiary of ",nether under Rev. St.. U. 8.S provic;ling th",t any one to imprisonment in I/o district in which there is no suitable jailor penitential-yahI'll beoon1ined in a cOQvenient state Of territory to , be designated bytbe attorneygel;leral. ', :
AtLa;w. : " On demurrer to information, theretofore filed by leave of court, for violation: of elcctionlaws. Rev. St. U. S. §§55Q6, 5512. W·. E.Orai{J,: V. S.Atty, Green Miller:, for defenqants. PAULjJ. , The .prosecutionsin these cases were commenced by infor-:matiomrfiledat the November term, .1889. To these informations the . defendants in eallh case demurrefi on the ground that the informations are in vio1:ttion of the fifth amendment to the constitution of the United States, which. declares that' , "No persoDshall be held to anSWilr for aCI'pital or otherwise infa!DOU8 orime unless on /I. presentml;lnt or inLlictment,of a p;rand jury, except in cases in the land or, naval forces, or militia, when in actualservic6 in timeof,war'C)l'plllilicdanger." ' for violations of the federal election laws. The against Jo4n aq<i Cobb are for vi()lating the provisions oJsection,5506()f the Revised, t;tatutes, which is asJollows: , Every person, who by any unlawful means hinders, delays, preor combines and confe<lerates with others to hinder, delay. vents, or prevent, or obstruct, any citizen from doing any act required to be done to qualifyhiinto vote, or from voting, at any election in any statl', territory, district, cOunty, :ci,ty, parish, township, school-district, municipality, or other
UNITED STATES II. COBB.
571
oftheRevised charge in the information is that he, the said T. A. ]fox,"did, at a registration of voters for an election for a representative or delegate in the congress of the United States, at the First ward of the said city of Danville, Va., he, the said T. A. Fox, being the registrar of the said First ward of the said city of Danville, unlawfully, knowingly;, and willfully, well knowing the same to be uplawful, neglect and refuse to retain upon the registration books of his said ward various, and a number of, citizens of the said ward, who were duly qualified to vote therein, and whose names were properly registered therein, and on the registration books thereof, and did unlawfully, knowingly, and willfully, well knowing the same to be unlawful, strike from the registration books the names of a number of persons duly qualified to vote in the said ward, and whose names were duly and properly registered on the registration books of the said ward." The. punishment prescribed for the offense herein charged is that the offender "shall be punished by, a fine of not more than five hundred dollars, or by imprisonment not more than three years, or by both, and shall pay the costsof the prosecution." Vide sections 5511, 5512, Rev. St. What an infamous crime is, as contemplated by the fifth to the constitution, above quoted, had not been clearly defined before supreme court of the Unit,ed States in the the decisions rendered by cases, respectively, Ex parte Wi18on, 114 U. S. 417,5 Sup. Ct. Rep, 935, and Mackin v; U. S., 117 U. S. 348, 6 Sup. Ct. Rep. 777. In the latter case the court decided, Judge GRAY delivering the opinion of the court, that--
territor1ahubdivision.shall be fined not less tban five hundred dollars, or be imprisoned not less than one month nor more than one year, or be punished by both sucb fine and imprisonment." . Thecase against 'r! A. Fox is for violationof-the provisions ofsection 55i2
.. A crime punishable by Imprisonment in a state-prison or penitentiary, with or without hard labor. is an infamous crime, within the provision of the fifth amendment of the constitution, that· no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or ment of a grand jury.'''
This case was followed by the case of U. S. v. DeWalt, 128 U. S. 393, 9 Sup. Rep. 111, in which, on the authority of Mackin v. U. S., ubi 8ttpTa,it was again held that "imprisonment in a state-prison or penitentiary,with or without hard labor, is an infamous punishment." The question, then, which this court has to decide, is, if the defendants, or any of them, should be convicted on the charges alleged in the information, can they he "sentenced to a state prison or penitentiary, with or without hard labor?" Section 5541 of the Revised Statutes provides that.. Inevl"ry case where any person convicted of any offense against the United States is sentenced * * * for a longer period than ()ne year, the court by which the sentence is passad may order the same to be executed in any state jail or penitentiary withIn the distriot or state where such court is held, the use of which jail or penitentiary is allowed by the legislature of the state for that ...
572·
FEDERAL REPOR:rER,
vol. 43.
Under this provision, :when a statute prescribes a punishment by confinement not exceeding one year, the convict cannot be confined in any or penitentiary. In the case against T. A. Fox, who is prosecuted under the provisions of section 5512 of the Revised Statutes, in which the punishment defined imay beuonfinement for a period of three years, and under which, ifconvfcted, he may be confined in a state-prison or penitentiary. according'to the provisions of section 5541, Rev. St., above quoted, it is clear that he cannot be prosecuted by information, but only on a presEmtment or indictment of a grand jury. The demurrer in ,this case is therefore sustained. In the cases against John Smith and H. A. Cobb, who are prosecuted under the provisions of section 5506 of the Revieed Statutes, the imprisonment prescribed by the statute cannot exceed one year; and therefore, if convicted, their confinement in any state jail or penitentiary is inhibited by the provisions of section 5541, quoted above. Counsel for the defendants contend that section 5546 of the Revised Statutes removes the inhibition prescribed in section 5541, and allows the court to send the convict to a state-prison or penitentiary where the period of confinement prescribed by the statute is for the term of one year or less. The court does not concur in this view. Section 5546 reads as follows: "Sec. 5546. All persons who have been, or who may hereafter be, convicted of crime, by any court of the United States. whose punishment is imprisonment in a district or territory where, at the time of conviction, * * * there maybe no penitentiary or jail suitable for the confinement of convicts, or 'available therefor. sballbe confined· dnring the term for which they have been or may be sentenced, * * * in some suitable jail or penitentiary in a convenient state or territory to be designated by the attorney general, and shall Iletransp()rted and delivered to the warden or keeper of such jail or penitentiary by the marshal of tbe district or territory where the conviction has (jccurred; a'lld;lf the conviction be badin the District of Columbia, [in such cllse,J the transportation and delivery shall be by the warden of the jail of that District; the reasonable, aCtual expense of transportation, subsistence and hire and transportation of guards and the marshal, or the warden of the jail in the DistrictofColulIlbia" only, to be paid by the attorney general out of the judiciary fund. But if,in the of the attorney general, the expense of transportation from any state, territory, or the District of Columbia, in which there is no penitentiary, will exceed tbe cost of maintaining them in jail in the state,territory; or the District of Columbia during the period of their sentencej then it shall be lawful 80 to confine them tberein for the period designated in their respective sentences." Section 5546 neither by express words nor by implication repeals, modifies, or changes the provisions of section 5541. Section 5546 is legislation on a subject entirely different from that of section 5.541. It5 object is. to define the duties. of the attorney gen,eral when there is no jail or penitentiary in thedil?trict or. state where the 'person is convicted in which such person may be confined. It preserves throughout the distinction between jail, as one class of prisons, and state jailor penitentiary, as another class of prisons. It could not have been contemplated
UNITED sTATES V. COBB.
573
that a person convicted under a statute where the punishment prescribed is confinement .in jail could, by reason of being sent to another state, because there was no jail in the district or state where he was convicted where he could be confined, be confined in a state-prison or penitentiary of the other statt' to which he is sent. The mere fact of the attorney general engaging prisons in another state than that in which the convict is sentenced cannot change the character of the convict's punishment, or make that infamous which was not so by the sentence, nor authorize the court to confine in a state prison or penitentiary, with or without hard labor, a person who has been convicted and sentenced under a statute which prescribes imprisonment alone as the punishment, and excludes the idea of imprisonment in a state jailor penitentiary, with or without hard labor. Any other construction would lead to the unreasonable conclusion that a person convicted under a statute that imposes confinement for a term not exceeding one year, and that does not impose hard labor as a part of the punishment, and sentenced to confinement for one month, could be sent to a state jail or penitentiary. The only case where a person can be sentenced to a jail or penitentiary not exceeding one year is where the statute prescribes hard labor as part of the punishment, and leaves the term of imprisonment in the discretion of the court, as in the Case of Robinson,l cited by counsel for defendants, which was an indictment under section 5406, tried at a former term of this court. In such a case, from the very character of the punishment inflicted, the convict has to be sent to a state jailor penitentiary. If the tht;lory advanced by counsel for defendants was correct, that, under the provisions of section 5546, a person sentenced to imprisonment for a period not exceeding one year can be sent to a state-prison or penitentiary, it would follow that there are no crimes against the United States, the punishment for which is imprisonment, that can be proceeded against by information. Counsel for defendants also rely on a recent decision rendered by the judge ofthe eastern district of Virginia. U. S. v. Smilh, 40 Fed. Rep. 755. It will be observed that the learned judge in that case bases his decision in part upon the practice which obtains in that district. He says: "Convicts of this district are sent to penitentiaries outside of Virginia, under the authority of section 5546 of the Revised Statutes, which does not, like section 5541, limit the class of persons sent to those who are sentenced for , longer than one year.' 'fhe practice of the court, when sentencing for as long a term as one year, is to order the confinement to be in a penitentiary. Section 5546, and this practice of the court, clearly bring the case at bar within the purview of the Gases of Wilson, r5 Sup. Ct. Rep. 935;] Mackin, [6 Hup. Ct. Rep. 777,] and De Walt, [9 Sup. Ct. Rep. 111.]" As the practice referred to is not followed in this district, it is unnecessary to discuss the question, if it did prevail, how far the provisions of the statute heretofore quoted can be changed, or modified by the practice of the court. The court has already expressed its view that section 1 No
opinion filech .
574
FEDERAL
Rll:PORTER, ,vo];43.
5MG Jdoes f not, .e:iq:>ressJ;r 01' impliedly, repeal, 'modify t or change the provisions of section 554L The demul;OOr in the case of U. S. v. Smith. and"inithecase·of U. S. v. Oobb is therefore overruled.
STATEs "-', .
v.
CLARK.
'(D¥tHct Court, S.D. Iowa, w. D. '
.
,-
'.'
September 27. 1890.) '
O'rnNnIlAGAIN8'l' THE MAILB-'-INt>EoENT LBTTERIl· . ' YOnder Rev. at. U. B. § 8893. 'aeclaring that "every obscene,lewd, or lascivious bQok, pamphlet, picture, lJ.aper. let.ter. writing, print, or other pUblication of an indecent' character, * *'. .. are berE-by declared to be non-mailable matter, "and q8Claring that! any person wbo mails any such matter shall be liable. to punishIlleljt, t,he mailing of a Jettier of character, but which is not obscene, leWd, or lascivioull, is not an offense, for it is not a "publication"within the mean· ing of the statute. . " ,
.,At. Law.
Lewi8.MuB$, Dist. Atty., for the UI;lited States. W. F. Sapp,' for defendant.
Indictp)ent for aending indecent letters through the malls.
·
SHIRAS, J. The indictment in this case is based upon· section 3893 of the Revised Statutes, as amended by the act of September 26, 1888, !lnd which enacts that "everyobscene,lewd, or lascivious book,pam. phlet,picture, paper, letter, writing,print, or other publication of an indecent character, ,* * * are hereby declared to be non-mailable matter;" and further declares that parties who knowingly mail any such matter areJiable to. punishment. The charge in the indictment is that the defendant knowingly deposited in the post-office, to .be forwarded and delivered to a party named, a letter of an indecent character, the contents being set forth in the indictment. The demurrer presents the question whether a letter of. an indecent chflracter is within the terms of the statute. As set forth in the indictment, the letter contains threats figainst the party to whom it is addressed, and also contains indecent epithets, the whole production being of a highly reprehensiblec9aracter, bringing it within .the description given it in the indictment; thatis, a letter ofindecent character. There is, however, nothing of an obscene, lewd,or lascivious nature contained in the letter. In support of the demurrer it is urged that the words, "or other publication of an indecent character," do not provide a further or' distinct class of nonmailable matter, but thatthese words are intended to be a further limitationupon' the obl!cene, lewd, or lascivious publications named in the first part of the sentence; and that to come within the statute the book, writinp;, letter. ()r other matter must be obscene, lewd, or lascivious, and of an indecent cha.racter. On behalf of the government it is contended that these words, "or other publication of an indecent chal'8cter," are intended to define a new or