Duke v. United States

• Citation: 81 L.Ed. 1243,57 S.Ct. 835,301 U.S. 492
• Decision Date: 24 May 1937
• Docket Number: No. 907,907
• Parties: DUKE v. UNITED STATES
• Court: United States Supreme Court

301 U.S. 492

57 S.Ct. 835

81 L.Ed. 1243

DUKE

v UNITED STATES.

No. 907.

Argued May 4, 1937.

Decided May 24, 1937.

Mr. Jesse C. Duke, pro se.

Mr. Wm. W. Barron, of Washington, D.C., for the United States.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

The court below, being divided and in doubt, and desiring the instruction and advice of this court, has certified the following questions of law:

'1. May a misdemeanor, for which no infamous punishment is prescribed, be prosecuted by information, where the punishment therefor may exceed $500 fine or six months' imprisonment, without hard labor, or both?

'2. May an offense under section 137 of the Criminal Code (18 U.S.C.A. § 243) be prosecuted by information?'

The certificate contains the following statement of facts:

'This was a prosecution for violation of section 137 of the Criminal Code, 18 U.S.C.A. § 243, which provides:

"Whoever shall attempt to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any letter or any communication, in print or writing, in relation to such issue or matter, shall be fined not more than $1,000, or imprisoned not more than six months, or both.'

'The prosecution was by information filed under oath by the United States Attorney. The appellant was convicted of the offense charged and from judgment and sentence thereon appeals to this court. One of the questions presented by the appeal is whether the offense charged, which is punishable by six months imprisonment or fine of $1,000, or both, may be prosecuted by information, in view of section 335 of the Criminal Code (amended by Act Dec. 16, 1930, 18 U.S.C.A. § 541). * * *

'Notwithstanding the decision in Thorm v. United States (C.C.A.3rd) 59 F.(2d) 419, certiorari denied 287 U.S. 624, 53 S.Ct. 78, 77 L.Ed. 541, this court is divided and in doubt as to whether a misdemeanor may be prosecuted by information where the punishment therefor, although not infamous, may exceed a fine of five hundred dollars, or six months' imprisonment without hard labor, or both. As there are a large number of such misdemeanors denounced by the Criminal Code (see Hearings before House Judiciary Committee, Seventieth Congress, First Session, January 17, 1928, on H.R. 5608, H.R. 8230, H.R. 8555, H.R. 8556, Serial 1, Page 31) the court deems the question of sufficient importance to certify to the Supreme Court.'

Section 335 of the Criminal Code, c. 321, 35 Stat. 1088, 1152 (18 U.S.C.A. § 541), before its amendment, provided: 'All offenses which may be punished by death or imprisonment for a term exceeding one year, shall be deemed felonies. All other offenses shall be deemed misdemeanors.'

This section was amended by the Act of December 16, 1930, c. 15, 46 Stat. 1029, 18 U.S.C. § 541 (18 U.S.C.A. § 541), by adding the following proviso: 'Provided, That all offenses the penalty for which does not exceed confinement in a common jail, without hard labor for a period of six months, or a fine of not more than $500, or both, shall be deemed to be petty offenses; and all such petty offenses may be prosecuted upon information or complaint.'

Appellant contends that this language limits the authority to prosecute by information strictly to...