United States v. Coppersmith

• Decision Date: 01 January 1880
• Citation: 4 F. 198
• Parties: UNITED STATES v. COPPERSMITH.
• Court: U.S. District Court — Western District of Tennessee

4 F. 198

UNITED STATES v. COPPERSMITH.

United States Circuit Court, W.D. Tennessee.

1880

W. W Murray, Dist. Att'y, and J. B. Clough, Asst. Dist. Atty for the United States.

George Gantt, for defendant.

HAMMOND D.J.

The defendant, being on trial for counterfeiting the coin of the United States, has peremptorily challenged three of the jurors tendered to him, and claims the right to challenge another, and any number to the extent of 10, under section 819 of the Revised Statutes. He insists that the offence of making counterfeit coin is a felony at common law, and therefore a felony in the purview of that section; he also insists that being punishable by imprisonment at hard labor which necessarily implies confinement in a penitentiary, it is a felony according to the ordinary acceptation of the term in American law; that congress used the term in that sense in this statute, and did not intend to indicate capital offences already provided for by the same section of the Revised Statutes.

Section 819, above referred to, is as follows: 'When the offence charged is treason or a capital offence, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to three peremptory challenges, and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges,' etc.

It is apparent that it was here intended to designate by the term 'any other felony,' other offences than capital offences, for they are otherwise specially provided for by this section.

Prior to legislation by congress this matter of peremptory challenges in the federal courts was in some confusion until the supreme court declared that they might, by rule, adopt the state practice. U.S. v. Shackleford, 18 How. 588; U.S. v. Douglas, 2 Blatchf. 207; U.S. v. Reed, Id. 435, 447, and note; U.S. v. Cottingham, Id. 470; U.S. v. Tallman, 10 Blatchf. 21; U.S. v. Devlin, 6 Blatchf. 71.

When we could resort to the state practice it was generally found that legislation had accurately regulated the right of challenge by distinctly classifying offences with such statutory definitions as left no room for doubt. But since congress has legislated we can no longer look to the state laws for guidance, nor to the common law, but only to the acts of congress themselves, which, unfortunately, have only increased the confusion by the use of an indefinite term. I am not advised of any reported case construing this section, nor of the practice in regard to it, except that it is said at the bar that heretofore in this district 10 challenges have not been allowed in any case where the offence charged was not, by the statute creating it, declared to be a felony. The first act of congress, passed March 3, 1865, (13 St. 500,) after providing for treason and capital offences, as is done by this section 819, provided that, 'on the trial of any other offence in which the right of peremptory challenge now exists, the defendant shall be entitled to ten and the United States to two peremptory challenges. ' The criticism of Judge Conkling, in the fifth edition of his Treatise, page 632, on this act, demonstrates how indefinite were the terms used, and he concludes that the section was nugatory as to all crimes except treason and capital offences: because the right of peremptory challenge, he says, only exists in cases of felony, and now nothing is felony except capital offences. In this criticism the learned district judge of Oregon seems to concur, for he also declares the section nugatory. U.S. v. Randall, 1 Deady, 524, 548. Yet, strange to say, the act of June 8, 1872, (17 St. 282,) substitutes this word felony for the phrase in the act of 1865 which was thus condemned, because it limited the right of peremptory challenges to cases of felony, and thereby left it impossible to determine under the act of 1865 to what cases it should apply. Perhaps a proper construction of the act of March 3, 1865, taken in connection with the law as it then stood under the decision in the case of United States v. Shackleford, supra, and the act of 1840, would have been to look to the state practice to determine in what cases the right of peremptory challenge 'now exists,' and to allow 10 challenges in all such cases; for the state practice then furnished not only the rule as to number, but the rule as to the kind of offence in which the right of peremptory challenge existed, as we have already seen. There would have been some certainty in this, but now there is no other course but to determine by the common law what congress meant in this section of the Revised Statutes by the words 'any other felony.' If congress uses a common-law term in defining a crime, or in any statute, we must look to the common law for a definition of the term used. 2 Abb.Pr. 171; Conk. Treatise, 178, (5th Ed.:) U.S. v. Palmer, 3 Wheat. 610; U.S. v. Wilson, Baldw. 78, 93; U.S. v. Barney, 5 Blatchf. 294, 296; U.S. v. Magill, 1 Wash. 463. The Massachusetts Code commissioners, many years ago, in enumerating felonies within the provisions of their Code, in a note, add that the meaning 'of the word 'felony' (as by them defined) is limited to the use of the word in this Code, and is not to be confounded with the common-law signification of the same term, whatever that meaning may be, for it is a matter of no little difficulty to settle it. ' Report, title 'Explanation of Terms Cited;' 1 Hale's P.C. (A.D. 1847) 575, note.

The supreme court of Alabama said, in Harrison v. State, 55 Ala. 239, 241, that it is not easy to determine in all cases what are felonies and crimen falsi. 'To predicate of an act,' says the supreme court of Ohio, 'that is it felonious, is simply to assert a legal conclusion as to the quality of the act; and unless the act charged, of itself, imports a felony, it is not made so by the application of this epithet. Indeed, the term felony has no distinct and well-defined meaning applicable to our system of criminal jurisprudence. In England it has a well-known and extensive signification, and comprises every species of crime which at common law worked a forfeiture of goods and lands. But under our Criminal Code the word 'felonious,' although occasionally used, expresses a signification no less vague and indefinite than the word 'criminal.""' Matthews v. State, 4 Ohio St. 539, 542. In the constitution of Tennessee the words 'criminal charge' are held to be synonymous with 'crimes,' which is said to mean, technically, 'felonious' offences. McGinnis v. State, 9 Hump. 43.

The term 'felony' appears to have been long used to signify the degree or class of crime committed, rather than the penal consequences of the forfeiture occasioned by the crime according to its original signification. 1 Archb.Cr.Pl. 1, note; 1 Russ.on Crimes, 43.

Capital punishment by no means enters into the true definition of felony. Strictly speaking, the term comprised every species of crime which occasioned at common law the total forfeiture of either lands or goods, or both. That was the only test. Felonies by common law are such as either concern the taking away of life, or concern the taking away of goods, or concern the habitation, or concern the obstruction of the execution of justice in criminal and capital causes, as escapes, rescues, etc. 1 Hale's P.C. 411. These crimes were of such enormity that the common law punished them by forfeiture: (1) the offender's wife lost her dower; (2) his children became base and ignoble and his blood corrupted; (3) he forfeited his goods and chattels, lands and tenements. The superadded punishment was either capital or otherwise, according to the degree of guilt; that is, the turpitude of the offence. There were felonies not punishable with death, and on the other hand there were offences not felonies which were so punishable. However, the idea of felony was so generally connected with capital punishment, that, erroneously, it came to be understood that all crimes punishable with death were felonies; and so, if a statute created a new offence and declared it a felony, but prescribed no punishment, by implication of law it was punishable with death. This has been changed by statute, and now, where a felony is created and no punishment prescribed, it is transportation for seven years, or imprisonment, with or without hard labor, not exceeding two years; and for a second felony, transportation for life. 7 and 8 Geo. IV. The punishment for a misdemeanor at common law was fine or imprisonment, or both, unlimited but in the most aggravated cases seldom exceeding two years. Tomlin's Dict. title 'Felony;' 4 Black.Com. 94; 3 Inst. 43; 4 Bacon's Abridg. title 'felony' and title 'forfeiture;' Viner's Abridg. title 'forfeiture;' 1 Hale's P.C. 411, 574; 1 Archb.Cr.Pr. 1, and note, and p. 185; 1 Russ. on Crimes, 42; 1 Bish.Cr.Law, 580-590; U.S. v. Williams, 1 Cranch's C.C. 178; Adams v. Barrett, 5 Ga. 404, 412; State v. Dewer, 65 N.C. 572; U.S. v. Smith, 5 Wheat. 153, 159; U.S. v. Staats, 8 How. 41.

Tested by the common law, then, this term has no very exact and determinate meaning, and can apply to no cases in this country except treason, where limited forfeiture of estate is allowed. But technically that is a crime of a higher grade than felony, although it imports also felony. If it be conceded that capital punishment imports a felony, there can be none, at common law, except capital crimes. But that test is untechnical and founded in error. It does not always apply, and it is as arbitrary to say that a crime punished capitally is a felony, as it is to say that one punished by imprisonment in the penitentiary is a felony. Our ancestors brought with them...