The morning news. [volume] (Savannah, Ga.) 1887-1900, 1888-05-04
RIGHTS OF THE CITIZEN.
A SENTENCE TO STATE PRISON
INFAMOUS PUNISHMENT.


the Internal Revenue Laws Cannot
be Tried Upon the Information of
District Attorneys, but ORly on In
dictment or Presentme nt of a
Grand Jury-"The Sinister and Male
VIOLENT Informe or" Gets Hard Rap at
the Close of an Interesting Decision.
Judge Speer rendered a decision in the
United States Circuit Court yesterday, sus-
tanning the demurrer Of Samuel B. Adams,
counsel for Otto Johannesen, which vir-
tually clears the criminal docket, except in
cases where parties defendant have been
indicted. Thousands Of cases for violations
of the United States revenue laws have
been tried on information in the United
States Courts since the war, and parties
convicted and sentenced TO State prison.
Under the decision of Judge Speer yester-
day. this practice will not obtain hereafter
in the United States Courts for the South
ern District of Georgia.
THE oFFENsEs ALLEGED.
Otto Johannesen was prosecuted by in
formation for a violation of Section 1865 Of
the Revised Statutes, the penalty for which
is fine not to exceed $1,000, or imprison-
ment not exceeding two years, or both in
the courts discretion. He was also prose
cuted for violation of sections 3242 and
3244. In the first count he was charged
with carrying on the business Of a whole
sale liquor dealer, the penalty of which is
not less than 1000 nor more than IS, 900
and imprisonment not less than six months
nor more than two years In the last count
he was charged with carrying on the business
of a retail liquor dealer, the penalty being
the same as above.
To both informations the defendant de-
INJURED upon the ground that in each Of
these charges he is accused of an Infamous
crime, and can be proceeded against only
by indictment or presentment of the grand
jury.
District Attorney Query resisted the de-
murrer, arguing that it made no difference
what was the length of the Imprisonment
prescribed by the statute; that unless the
statute required that the Imprisonment
should be at hard labor or the crime in
VOWED moral turpitude, or was a felony at
common law, that it would be a INSIDE
meanor, and that in misdemeanor cases the
court would have no right to sentence a
man to penitentiary, and that the prac-
tice hitherto existing of sending all persons
to the penitentiary convicted of a crime
the punishment of which is Imprisonment
for over year, is contrary to law, and that
the court not having the power of punish
ing nIisdemeanor cases by Imprisonment in
the penitentiary that the punishment is not
Infamous and that an information would
lie.
THE DEMURRER SUSTAINED.
The court in sustaining the demurrer said
it was difficult to overestimate the impor-
lance and comprehensiveness of the question
t. - l.
steady practice of the officers of the gov
eminent to prosecute upon the information
of United States District Attorneys a very
large class of cases which can be prosecuted
only by indictment or preSentment if the
demurrer is well grounded. These informa-
tions cover all cases of distllation, carry
ing on the business of wholesale or retail
liquor dealer, manufacturing stills, rectify-
ing, removing distilled spirits on which
tax has not been paid, and in fact large
proportion of the crimes against the general
government for violation of internal rev.
enue laws.
Judge Speer then cited the decision in the
United States Supreme Court in the case of
Mackin and another VS.. the United States,
III U. s., p. 34S, the prosecution being
under section $40, Revised Statutes, and
upon which decision defendant relies In
abiding to this case, Judge Speer said:
The punishment prescribed was penalty of
mot less than $1,000 and notmore than $4,000"
and imprisonment not more than two years. :"
In the Circuit Court the Judges were divided in
opinion upon several questions of law. and
among them the following: whether the
crime charged was infamous within the mean
ing of the Constitution of the United States and
whether the defendant would be held to answer
other than on the preSentment or indictment of
the grand jury" These questions were certified
TO the Supreme Court. Mr.. Justice GRAY for the
planga of hn 4 n
ment TO the Constitution which declares that
no person shall be held to answer for a capital
or otherwise Infamous crime, unless on a pre-
sentiment or indictment OF a grand Jury" PRO
ceeds with great clearnesS and force in the dis
cussion of the questions in which the liberty of
the citizen and the community is so vitality
involved
A GRAND JURY MUST ACT.
Judge Speer then quoted freely from the
decision to show that defendant cannot be
deprived of his right to demand that he be
not put upon trial until after presentment
or indictment by grand jury, when in dan
ger of being subjected to an infamous pun
ishment if convicted. The concluding find
ing of the court is as follows:
Attention is called in the decision to the ex-
press provisions of the acts Of Congress- Re
vised Statutes, sections SOL, 5542 and $3.50, by
which 1t is provided that sentence of the
United States courts ito imprisonment for a
Imprisonment and confinement to hard labor
may be ordered TO be executed in a State
prison or pententiary; and that the convict
while thus imprisoned is subject to the same
discipline and treatment as convicts sentenced
by the courts Of the State" The court holds
that 1t has not been found necessary to con
slider how far a convict from a United States
court can be put to work in a State penitentiary
when not III terms sentenced to hard labor for
TO use the language of the court, I'VE cannot
doubt that at the present day Imprisonment in
a State prison or penitentiary with or without
hard labor is an Infamous punishment"
1t is not only so considered in the
has been recognized as such in the legislation
of the States and Territories, as we'll as Of Con
gresS. Thus We see how the liberalizing and
humane tendencies of the law are advanced by
the progressive steps Of that most illustrous
tribunal. In er pdrte Wilson. supra. the holding
was that crime punishable b. hard labor in
the state prison or peniteutiary is infamous
Now it is held that Imprisonment in the State
prison or penitentiary is infamous, it follows
logically that since the defendant, Johannasen
can invoke the test established, namely, that
the court might award an Infamous punishment
because he may be imprisoned in State prison
or penteHtiary subject 20 the same discipline
and treatment as coavicts sentenced by the
courts of the state. and for this cause that he
is entitled to the benefit OF the constitutional
provision that he may not be held to answer
the charge unless upon presentment or indict-
ment 10y grand jury, This was the finding of
unanimous court.
In e.r pdffc Bayne, 1871 Y. S, p, !, the holding
is reiterated, Mr. Justice Miller delivering the
opinion again OF q unanimous court.
THE PRACTICE MUST CEASE.
Startling as is the proposition to a people
who have been hebtuated 70 prosecutions upon