The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-05-19
Case OF Henry A. Naglee.

Mays. Writ Of error to the Criminal Court Of
the District of Columbia.
The record from the criminal court recitcs the
petition for writ Of crrorj tho writ OF itself;
the style of the court; the OF the parties;
the names of the grand jurors; the indictments the
capias ad respondendum; the appearance OF the
traverser, by John M. McCaia, esq. his attorney;
the plea of not guilty; the venre iacias; the
of the jurors who tried the case; the verdict OF
guiltyj the motion in arrest OF judgment; the judg-
ment OF the criminal court overruling the motion;
and the sentence, which ia as follows:
Therefore il ia considered by the court here that
you, the said Henry Naglee. be deemed and ad
judged guilty Of felony, and be Imprisoned and
kept at hard labor in the pcnitentiary OF the Dis,
the application of the defendant by his counsel
aforesaid, to enable him to apply for writ OF
to the circuit court OF the District OF Colum-
bia. it ia ordered and adjudged that execution of
the said sentence shall be postponed until, and
commence two days after, the said circuit court
now in session for the county Of Washington shall
rise, and the existing term Of said court be at an
end"
KEY, for the prisoner The indictment in this
case was framed on the act of Congress of 3D.
March, 1923, "for the punishment Of frauds COM
mitted on the Government OF the United States"
iii Stat. L., III, 772) which law declares the Of
fence of transmitting, Sc, &c, false papers, &C.,
to be felony. The Indictment charges it TO have
been committed "feoniously' In all cases of
felony. arraignment is necessary Hale, Z. c,
2l6, 2lS; C1tc Hdtpk. 433, 435; Chittys Black
324, 1876; Bascomb's case, 3 Mod, $685. Chify's
Cf. H., 4l4. Holding up the hand is not abso-
lutely necessary. In Staats's case, H0o., Al the
Supreme Court say that the offence which the
indictment in that case was framed is felony. la
this the indictment is on the same statute,
and charges the offence to have been committed
feoniousiy All that the Supreme Court decide in
Staafs's case is that the offence under the statute
is sufficiently described without charging 1t to
have been done felonously. The true question in
this is whether the offence charged in the in
dictment is felony misdemeanor. The
q a n n
staes that the ravcrser appeared in court by John
M. McCalla, esq, his attorney. The record also,
it is true, shows that he ,was personally in court
when sentence was pronOunCed; but 1t does not
show when he came into court. For aught to the
contrary appearing on the record, he might not
have come into court till he came to receive
tence. In Staats's case the question was whether
1t was necessary for the indictment TO charge that
the act was done teloniously; and the court held
that 1t was not. That is not the question here.
The judge of the criminal court admitted that, if
the offence was a felony, the travcrser ought to
have been arragned.
lit admitted by the DIsTRIcT ATTORNEY
that the travcr-er was not called on to hold up his
hand, and that the indictment was not read aloud
in court by the clerk. 1t was admitted by Gen.
MCCALLA that the traverser was present in court
during the whole of the trial, and that his counsel
for a considerable time before the trial. had in their
possession copy OF the Indictment
The DIsTRICT ATTORNEY, cOntra.-Ihc grounds Of
this writ OF are-l. That the prisoner not
arraigned. 2. Duplicity. Both these grounds
within the class of "unseemly niceties,'' which,
even in capital cases. have received the of
Lord HALE. one of the fathers Of the criminal law,
and one Of the most humane as well as enlightened
Judges who ever sat on any bench. "ln favor OF
liie, he says "great strictnesses have been In all
times required in points of indictments, and the
truth ia, that 1t is grown to be blemish and in
convenience in the law, and the administration
thereof; more offenders escape by the over easy
given to the exceptions in indictments, than by
their own innocence; and many times gross muir
ders burglaries, robbcries, and other heinous and
crying offences, escape by these un'eeiy ncees 10
the reprodch G the la,o, 10 the shame Of The Gouern-
ment, and TO the encouragement Of viany, and TO the
dishono # God.
Sand it were very fit that by some law this
grown curiosity and nicely were reformed, which
is now become The disease Of The iac, and will, fear
In time, gr0D mortal, without soIne timely remedy
Hole II. C., 1872"
As to the lst point:
This is settled by the Supreme Court OF the Uni
ted States in Staafs's case, q Hotoard, H-i6,)
which has been referred to on the other side. Ia
that case, the indictment the same statute
which the indictment in this case is framed.
Ii is contended that !Sfaats's decides the Of
fence TO be felony; that nrraignment is n ncces-
sary incident Of trial for felony; and that, there
was no arraigpment in this case, there was mis-
trial. The decision Of the Supreme Court is the
very reverse OF what it ia claimed TO be. The Court
held that where tho felonious intent is n material
element OF the crime il is necessary for the indict
ment to charge il TO have been "fcloniously' com
intted but that where the feonious intent consti-
tutes no part OF the crime, the crime being com
plete under the statute without IL, and depending
another and different criminal intent, il is not
necessary that the indictment shall charge the
crime 10 have been "iclonously'' committed; and
that the word felony" in the Of 1923 relates to
the punishmentonly. On these principles they up
held the indictment in Siaats's case which did not
charge that the criminal act done "felonious-
ly" This term is just az necessary in indictment
Tor felony az the word "traitorously' lie in an
dictment for treason, or "burgaruusly' in an iu-
dictmcnt for burglary. Il Chilly Or. La,c, 2i2
lit be unnecessary 10 charge the act in this ~
have been done "ieloniously," il follows as a con
sequence that the incidents ola trial for felony are
unnecessary. IL is true that the statute declares
that party committing the offence prohibited
"shall be deemed and adjudgcd guilty OF felony"
But, say the Supreme Court, 'Jclony ia the con
clusion OF law from the acts done with the intent
described, and makes part OF the punishment; as in
the eye OF the common law the prisoner thereby
becomes infamous and disfranchiscd. These
sequences may not follow, legally speaking, in
government where the common law does not pre-
vail but the moral degradation attaches to the
punishment actually inflicted" Up. 45.) And 80,
in this case, the sentence Of the criminal court docs
make II part OF the punishment. il 10 also true
that the indictment charges the act 20 have been
done Jeoniousiy. But IL THE ayerment be unneccs-
sary, as the Supreme Court decides that IL is, IL
will be rejected as si1plIsdge. (drchb. Grim. Pr,
~, 81, los; Jones's case n and Ado,ph Gil xxi
Eng Com. L.. r., lat. l47) The English
cited in the opinion Of the Supreme Court in Saafss
case take the same distinction that taken by the
prcmc Court, "sccms 10 have been given up in the
country from whence il derived, and at best ~
here bit The meresf tschnic1fy, IL is difficult TO per-
ceive any ground for still giving effect TO Il. II
would be Otherwise II the fcloniOus intent de-
scHptve Of the offence, and not simply the punish
nent" Up. 46.)
The same may be said Of those parts Of the
raignmcnt which have been omitted in this case.
The object Of arraigDmcn is that the prisoner may
personally appear in court. q Chiffy's Burns
Justice, 253, l53 254) In this case il is admitted
thathc was personally presont from the beginning to
the end OF the trial, which lasted four days: aud
the record shows that the plea VI not guilty put
In ut December term, 1851; that at the succeeding
term not guilty was put In; and that he waB tried
on that plea, having had all the intervening time
20 consider Of IL. Whether the plea was Pot IN
personally by the prisoner, by bis counsel, by
the clerk, in conformity with the practice OF the
Court, "a practice adopted for the convenience of
parties and their attorncys) are questions wholly
immaterial. The prisoner, at all events. adopted
the plea, and went 10 trial on IL. What possible
prejudice can he have suffered
In the casc OF GibGf 81 al, pirates, Q summers r.
90, Judge Srosy held that, soon "as II judicial
ly appears Of record that the party has pleaded
guilty, there IL issue in criminal case, which
the cou,t are bound to direct to be tried by n
tt.fu Ia hat ~ he - fr,.r