Mackin v. United States

• Citation: 117 U.S. 348,29 L.Ed. 909,6 S.Ct. 777
• Parties: MACKIN and another v. UNITED STATES. 1 Filed
• Decision Date: 22 March 1886
• Court: United States Supreme Court

6 S.Ct. 777

117 U.S. 348

29 L.Ed. 909

MACKIN and another v. UNITED STATES.¹

Filed March 22, 1886.

This was an information filed by the district attorney, on January 20, 1885, in the district court of the United States for the Northern district of Illinois, on section 5440 of the Revised Statutes, which is as follows: 'If two or more persons conspire, either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars, and to imprisonment not more than two years.' The information contained seven counts, which were respectively for conspiracies to commit offenses within sections 5512, 5511, and 5403. The substance of the offense, as alleged in different forms in the various counts, was the breaking open of a package containing a return, by the judges and clerks of election, of an election held in a district of the city of Chicago to choose a representative in congress and certain state and county officers; the alteration of the certificate of the result of the election, the poll-book, the tally-list of the votes cast for each candidate, and a large number of the ballots; and the substitution of spurious papers in their stead. In the district court the defendants were tried by a jury, and convicted, and on March 21, 1885, were sentenced to pay a fine of $5,000 each, and to be imprisoned for two years in the penitentiary of the state of Illinois at Joliet, in said district. A writ of error was sued out by the defendants, returnable at May term, 1885, of the circuit court. At the hearing in that court, the two judges presiding were divided in opinion upon five questions of law, and, at the request of the counsel for both parties, certified to this court those questions, two of which were as follows: '(1) Whether the crimes, or any of them, charged against the defendants in the counts of the information are infamous crimes, within the meaning of the fifth article of amendment to the constitution of the United States. (2) Whether the defendants can or not be held to answer in the courts of the United States for the crimes charged, or any of them, against them herein, otherwise than on the presentment or indictment of a grand jury.' The other questions certified related to the sufficiency of the several counts as setting forth any offense, and need not be particularly stated.

John C. Richberg, S. Shellabarger, and J. M. Wilson, for plaintiffs in error.

Atty. Gen. Garland, Asst. Atty. Gen. Maury, John B. Hawley, and Rich'd S. Tuthill, for defendants in error.

Mr. Justice GRAY, after stating the case as above reported, delivered the opinion of the court:

In Ex parte Wilson, 114 U.S. 417, S. C. 5 Sup. Ct. Rep. 935, it was adjudged by this court, upon full consideration, that a crime punishable by imprisonment for a term of years at hard labor was an infamous crime, within the meaning of the fifth amendment of the constitution of the United States, which declares that 'no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury;' and therefore could not be prosecuted by information in any court of the United States. The reasons for that judgment, without undertaking to recapitulate them in detail, or to restate the authorities cited in their support, may be summed up as follows: The fifth amendment had in view the rule of the common law governing the mode of prosecuting those accused of crime, by which an information by the attorney general, without the intervention of a grand jury, was not allowed for a capital crime, nor for any felony, rather than the rule of evidence by which those convicted of crimes of a certain character were disqualified to testify as witnesses. In other words, of the two kinds of infamy known to the law of England before the declaration of independence, the constitutional amendment looked to the one founded on the opinions of the people respecting the mode of punishment, rather than to that founded on the construction of law respecting the future credibility of the delinquent. The leading word, 'capital,' describing the crime by its punishment only, the associated words, 'or otherwise infamous crime,' must, by an elementary rule of construction, be held to include any crime subject to an infamous punishment, even if they should be held to include also crimes infamous in their nature inde- pendently of the punishment affixed to them. Having regard to the object and the terms of the amendment, as well as to the history of its proposal and adoption, and to the early understanding and practice under it, no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may lawfully be imposed by the court. The test is whether the crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded in an infamous one. When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial except on the accusation of a grand jury. The constitution protecting every one from being prosecuted in a court of the United States without the intervention of a grand jury, for any crime which is subject by law to an infamous punishment, no declaration of congress is needed to secure, or competent to defeat, the constitutional safeguard. What punishment shall be considered as infamous may be affected by the changes of public opinion from one age to another, and for more than a century imprisonment at hard labor in the state prison or penitentiary has been considered an infamous punishment in England and America.

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