Falconi v. United States

• Citation: 280 F. 766
• Decision Date: 12 May 1922
• Docket Number: 3632.
• Parties: FALCONI et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

280 F. 766

FALCONI et al. v. UNITED STATES.

No. 3632.

United States Court of Appeals, Sixth Circuit.

May 12, 1922

E. H Moore, of Youngstown, Ohio (Moore, Barnum & Hammond, of Youngstown, Ohio, on the brief), for plaintiffs in error.

D. J Needham, Asst. U.S. Atty., of Cleveland, Ohio (E. S. Wertz U.S. Atty., of Cleveland, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

The plaintiffs in error, Falconi and Furwa, were convicted upon both counts of an information charging the unlawful possession and the unlawful sale of intoxicating liquor, in violation of the National Prohibition Act (41 Stat. 305). Falconi was sentenced to pay a fine of $500 on the first count, and on the second count to be confined in the Stark County Workhouse, at Canton, Ohio, for a period of 4 months. Furwa was sentenced to pay a fine of $10 on the first count and on the second count to be confined in the Stark County Workhouse at Canton, Ohio, for a period of 3 months.

It is the claim of plaintiffs in error that the offense charged in the second count of this information is subject, in that jurisdiction, to infamous punishment, and therefore is an infamous crime, which under the provisions of the Fifth Amendment to the federal Constitution cannot be prosecuted otherwise than upon presentment or indictment by a grand jury.

It is now thoroughly well settled that all felonies as defined by section 335 of the Criminal Code (Comp. St. Sec. 10509) are infamous crimes, for which no person shall be held to answer unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger. Ex parte Wilson, 114 U.S. 417, 5 Sup.Ct. 935, 29 L.Ed. 89; Mackin et al. v. U.S., 117 U.S. 348, 6 Sup.Ct. 777, 29 L.Ed. 909; Parkinson v. U.S., 121 U.S. 281, 7 Sup.Ct. 896, 30 L.Ed. 959; U.S. v. De Walt, 128 U.S. 393, 9 Sup.Ct. 111, 32 L.Ed. 485; In re Mills, 135 U.S. 263, 267, 10 Sup.Ct. 762, 34 L.Ed. 107; In re Claasen, 140 U.S. 200, 204, 11 Sup.Ct. 735, 35 L.Ed. 409.

It would seem to be equally well settled that misdemeanors punishable by fine, or by fine and imprisonment not exceeding one year, unless there should be coupled with the punishment of imprisonment some specific provision making the particular misdemeanor infamous, are not infamous crimes, within the purview of the Fifth Amendment, and may be prosecuted by information. In re Bonner, Petitioner, 151 U.S. 242, 257, 14 Sup.Ct. 323, 38 L.Ed. 149; 4 Blackstone, Com. 310; Hunter v. U.S. (C.C.A.) 272 F. 235; Robertson v. U.S. (C.C.A.) 262 F. 948, 950; Brown v. U.S., 260 F. 752, 171 C.C.A. 490; Blanc v. U.S., 258 F. 921, 923, 169 C.C.A. 641; U.S. v. Wells Co. (D.C.) 186 F. 248; U.S. v. Camden Iron Works (D.C.) 150 F. 214; De Four v. U.S., 260 F. 596, 598, 171 C.C.A. 360; Weeks v. U.S., 216 F. 292, 298, 132 C.C.A. 436, L.R.A. 1915B, 651, Ann. Cas. 1917C, 524.

In the case of Wong Wing v. U.S., 163 U.S. 228, 16 Sup.Ct. 977, 41 L.Ed. 140, the Supreme Court held that a statute authorizing imprisonment at hard labor for a definite period inflicts an infamous punishment, and therefore the offense, though a misdemeanor, is an infamous crime, within the meaning of the Fifth Amendment. This holding in the Wong Wing Case has been considered, approved, and followed by the Supreme Court in the recent case of United States v. Moreland (decided April 17, 1922) 257 U.S. . . ., 42 Sup.Ct. 368, 66 L.Ed. . . . . If the decision in Wong Wing v. U.S. was at all doubtful, that doubt has been dispelled by the clear, positive, and definite declaration of the Supreme Court in U.S. v. Moreland that imprisonment at hard labor for any definite term, regardless of the length of the term or the place of imprisonment is infamous punishment, and that, where the accused is in danger of an infamous punishment, if convicted, he has a right to insist that he be not put upon trial, except on the presentment or indictment of a grand jury.

This question was not presented in any of the other cases above cited, nor was it presented or involved in the case of Yaffee v. U.S., 276 F. 497, recently decided by this court. In the Yaffee Case the motion to strike the information from the files was based upon the claim that the filing of an information with leave is contrary to the constitutional rights of the defendants, where the punishment of the offense may include imprisonment. The general rule, announced in that case, as to the right to prosecute by information for a misdemeanor punishable by fine, or fine and imprisonment for not more than one year, must be restricted to the facts of that case, and therefore has no application whatever to the prosecution of a misdemeanor punishable by imprisonment at hard labor.

Nor does the case at bar involve any such question. Under the provisions of section 29 of title 2 of the National Prohibition Act, the offense charged in the second count of this information may be punished by a fine of not more than $1,000 or imprisonment not exceeding 6 months. This statute does not authorize, nor does the sentence specifically impose, imprisonment at hard labor. Robertson v. U.S., supra. It is claimed, however, that the sentence of these plaintiffs in error to imprisonment in the workhouse at Canton, Ohio, is equivalent to a sentence of imprisonment at hard labor. This claim is based upon the provisions of section 5539, R.S. (Comp. St. Sec. 10523), which provides that a federal prisoner shall be subject to the same discipline and treatment as convicts sentenced by the state or territory in which such jail or penitentiary is situated.

In view of the Ohio statute designating what prisoners in a jail or workhouse may be put to hard labor, it is unnecessary to decide, and we do not decide, whether a sentence to a county jail or workhouse where hard labor may be required as a part of the discipline of such institution is equivalent to a direct provision in a statute, under which the prosecution is had, authorizing imprisonment at hard labor, regardless of the fact that the nature of the crime must be determined from the statute defining it, and providing the punishment. Mackin v. U.S., supra, 117 U.S.at page 352, 6 Sup.Ct. 777, 29 L.Ed. 909; Kurtz v. Moffitt, 115 U.S. 487, 501, 6 Sup.Ct. 148, 29 L.Ed. 458.

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