Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1903-09-24

jury, except III CuStS vi lluptd'uln'NN /,
or in such cases of offence as are usual
y CognIzable by a Justice Of the Peace
etc. 4 corresponding provision exists
in the United States Constitution. F.
which prohibits prosecution for "a cap
ital or otherwise Infamous crime" UNI
less upon a presentment or indictment
of grand jury.
Security to the Innocent.
The investigation by a grand jury
Of "a capital or infamous crime" OF
which a party may be accused, has
been regarded FOR centuries as one of
the securities to the innocent against
/ hasty. malicious, and oppressive pub
lie prosecutions and has one Of The
ancient immunities and bulwarks OF
personal liberty. The provision now
found in the Federal Constitution orig
/ mated as an amendment to the origin
al constitution, introduced in the ma
ture of bill Of rights, at the first ses-
sion of Congress in 1889 the more care
fully to guard the security of the cit
izen against vindictiye prosecutions
either by the government political par
IEduS, OF ny private GutlhltS'
Which Works lnfamy.
An infamous crime is that which
works infamy in the person who has
committed It.
In many of the earlier decisions
where this question has been Consid-
cred, 1t will be found that the Courts
incline to the doctrine that 1t is the
nature of the crime. and not the pun
ishment inflicted. which renders ii in
famous.
Doctrine DisapproVed.
If the nature OF the crime as under
stood at common law, rather than the
punishment inflicted, were to govern
in determining whether it was infam-
Iuus or not, within the meaning of the
provisions of the Constitution, many
offences might be held not to be in
famous crimes. and requiring no in
diCtment for their prosecution. This
doctrine at one time obtained consider
able foothoid in the Federal Courts.
But this doctrine has since been eX-
pressly disapproved by the Supreme
Court of the United States, where 1t
has been decided that any crime which
is punishable by Imprisonment for Il
term of years is an Infamous crime.
and cannot be prosecuted except upon
an indictment or presentment by a
, grand jury; thus repudtatng the doc
trine enunciated in some Of the earlier
decisions
!. Elk Parte Wilson.
I ~. ~ a. he
ton was considered In very elab-
crate opinion by MIR. Justice Gray, the
court says: THAT no person can be
held to answer. without presentment
or indictment by grand jury, for any
J crime for which an infamous punish
ment may be imposed by the court
The question is. whether the crime is
one for which the statutes authorize
the court to award on infamous pun
y ishment. not whether the punishment
y ultimately awarded is an Infamous one
When the accused Is In danger of be.
ing subjected to an infamous punish
ment If convicted he has TIE right
to insist that he shall not be put upon
his trial. except on the accusation Of
: 4 grand jury
< In Mackin v United State the Court
S said. I'VE cannot doubt that at the
r present day Imprisonment in the state
y prison or penitentiary, with or with
l. out hard labor. is an infamous pun,
i ishmCnt. 1t is not only so considered
n In the general opinion Of the people
d but it has been recognized as such In
- - nd Tnp
i ritories, as we'll as of Congress"
/ And the purport of all the decision!
l. from the highest court in this country
d since EX Parte Wilson, supra Is thai
a crime punishable by Imprisonment II
o the state prison or penitentiary. wher,
It the accused is or is not sentenced t
n hard labor, Is an infamous crime; anC
e IN determining this question is wheth
y er 1t is one for which the statute lu
= thorizes the court TO award an imam
d Gus punishment, and not whether tn,
e punishment actually imposed is a.
8 Infamous one.
;, The Present Case.
u The question in this case narrow
a." down as to whether judged by the crl
terlon mat II the law authorizes IN
'e inhictlon Of an Infamous punishment
&c the offense is an infamous one, the IF
D. fence in this case may be punishable
II by an infamous punishment. It is alb
Il solutely immaterial under the rule lai
, down by the Supreme Court of tn
United States what the actua! punish
1t ment is for an offence, but the sol
Il criterions what the statutes authoriz
d as an inalction OF punishment, II
o defendant is iued only two dollars AM
costs, the lay mind may think,
Il strange that the offence falls within
1t the category Of infamous criIocs," bu
% Ii under the law for that same olfcnC
y an infamous punishment might hay
Is been inflicted then under the criterion
= above cited the offence become an in
famous crime" within the meaning 0