United States v. Coppersmith. Congress now stands, to the determination of the meaning of the word "felony" as used in section 819 now under consideration. But, aside from this, nothing is better settled than that we cannot look to the State laws, in the criminal jurisprudence of the United States, for the characteristic elements which go to make up an offense, and enter into it as a part of its legal status; nor to the common law; nor even to the character of the punishment. The Federal Courts take no cognizance of State statutes in criminal proceedings, and deduce no criminal jurisdiction from the common law, which has no force, directly or indirectly, to make an act an offense not made so by Congress; though in all matters respecting the accusation and trial of offenders, not otherwise provided for, we are referred to the laws and usages of the State when the judicial system was organized. 1 Abb. Pr. 197; 2 Abb. Pr. 171; United States v. Reid, 12 How. 361; United States v. Lancaster, 2 McLean, 431; United States v. Peterson, 1 Wood.& 'M. 306, 309; United States v. Shepherd, 1 Hughes, 520, 522; United States v. Taylor, Id. 514, 517; United States v. Maxwell, 3 Dill. 275, 276; United States v. Shepard, 1 Abb. 431; United States v. Cross, 1 McArth. 149; United States v. Black, 1 Saw. 211; United States v. Ebert, 1 Cent. L. J. 205; United States v. Williams, 1 Cliff. 5; United States v. Barney, 5 Blatchf. 294; United States v. Watkins, 3 Cr. C. C. 441, 451; United States v. Hammond, 2 Woods, 197; United States v. Magill, 1 Wash. C. C. 463. In those cases where the State laws have been adopted as in section 5391 of the Revised Statutes, they stand as if the act of Congress had defined the offenses in the very words of the State law; and in those cases where Congress has been content to denounce the offense by its common-law name, as in murder and rape, for example, (Rev. St. 5339, 5354,) they United States v. Coppersmith. stand as if Congress had re-enacted the common law totidem verbis. And in such cases, unquestionably, if the crime be a felony at common law or by State statute, it is a felony under the act of Congress; and if not punished capitally would fall within the designation of "any other felony," as used in this section 819, by force, not of the common law or State statute but of the Federal statute. Murder is a felony at common law, but it may be doubted if rape is, it having been made so by statute. Merton, 2; 1 Hale's P. C. 226. If this latter offense were not punished capitally, and we were confined, as in some of the States, to the ancient common law, and not that existing at the time of the revolution, it would become a very difficult matter to determine how it was to be ruled under this section 819. This is mentioned to illustrate the almost inextricable plerplexity which arises from the use of this word "felony" in the present state of our law, in acts of Congress, without some statutory definition of it. It does not follow, however, because we can find no common-law definition of this term which will give it and this statute operation according to that law, and are forbidden to adopt the definition found in the modern. use of it in State statutes, that this clause of the section is nugatory. The authorities cited show that Congress has the undoubted power to create felonies by legislation operating within the limitations of its jurisdiction over crimes, and that from time immemorial legislatures having general jurisdiction over criminal offenses have added felonies to the common law list. United States v. Tynen, 11 Wall. 88. Statutes create felonies either by declaring offenses to be felonies in express terms, or impliedly, as in the ancient statutes, by enacting that the defendant should have judgment of life and member where the word "felony" is omitted, or where the statute says an act under particular circumstances shall be deemed to have been feloniously com United States v. Coppersmith. mitted. 1 Arch. Cr. Pr. 1, and note; 1 Russ. on Crimes, 43; and authorities above cited. Now, where the common law operates, this declaration, express or implied, entailed the consequences of forfeiture, and if the statute fixed no. punishment there was superadded by the ancient law the penalty of death, and now, in England, transportation, and in our American States, confinement in the penitentiary. But it is manifest that the jurisprudence of the United States, as long as section 5326 of the Revised Statutes and other prohibitions of forfeiture of estate and corruption of blood as a punishment for crime continues to be the law, and as long as Congress adopts no general legislation punishing felonies as such, either capitally or otherwise, the declaration that an offense shall be a felony in an act of Congress, is merely brutum fulmen, except so far as it inclines the legislative mind to affix a more severe penalty for the commission of the offense. Notwithstanding this, however, it has been, until recent years, the constant habit of Congress to declare offenses created by it either felonies or misdemeanors in express terms, or to leave them to be misdemeanors by making no declaration on the subject. There is no doubt that offenses are felonies when so declared to be, and the accused is entitled, in such cases, where not punished capitally, to ten challenges under this section 819, and this is about the only substantive effect such a declaration has, unless it be that it further gives the accused the right to be proceeded against only by indictment under the fifth amendment to the Constitution; though it has been judicially declared that under our system a felony is not an infamous crime in the sense of that amendment. United States v. Cross, supra, and the other authorities above cited. It would seem, therefore, that it is rather to the advantage than the disadvantage of the offender to have Congress declare his offense a felony. Be this as it may, the clause under consid United States v. Coppersmith. eration may operate, in other than capital cases, to give the defendant ten challenges in the following classes of cases: First, where the offense is declared by statute, expressly or impliedly, to be a felony; second, where Congress does not define an offense, but simply punishes it by its common-law name, and at common law it is a felony; third, where Congress adopts a State law as to an offense, and under such law it is a felony. It only remains to be determined whether the offense charged in this indictment comes within either of these categories. Making counterfeit coin was by the ancient common law, treason, and subsequently a felony, while uttering or passing it was only a misdemeanor. Fox v. Ohio, 5 How. 410, 433; Tomlin's Dict., title, "Coin; " 1 Hale's P. C. 210, 224; United States v. M'Carthy, 4 Cranch's C. C. 304; United States v. Shepherd, 1 Hughes, 521. The act of 1790 (1 St. 115) declares counterfeiting the public securities a felony, and punished it with death. The act of 1825 reduced the punishment to hard labor not exceeding ten years. 4 St. 119. The act of 1806, the first to protect the coin, declared counterfeiting a felony punishable by imprisonment at hard labor. 2 St. 404. The act of 1825 declared counterfeiting the coin a felony punishable with imprisonment at hard labor not exceeding ten years. 4 St. 121. The act of 1873 declared counterfeiting treasury notes a felony, as did the acts of 1847 and 1861. 9 St. 120; 12 St. 123; 17 St. 434. Counterfeiting postage stamps was declared felony by the acts of 1851 and 1853. 9 St. 589; 10 St. 256. Counterfeiting three-cent pieces was by the act of 1865 made a misdemeanor. 13 St. 518. The Revised Statutes drop this classification, as does the act of 1877, and these offenses are no longer declared felonies. Rev. St. 5414, 5457, 5464; 19 St. 223. And this demonstrates that the legislative will no longer declares this United States v. Coppersmith. offense a felony, and we think the felony feature is impliedly repealed. It is argued very earnestly, however, that the effect of this is only to leave it a felony as at common law. We have already shown that under our system there is no common-law felony unless Congress merely defines a crime which is a felony at common law by its common-law name. If the act said "counterfeiting" shall be, punished as prescribed, it would be a felony; but it does not say so; it defines the offense for itself, and does not declare it a felony for the obvious reason that such a declaration would not change the character of the crime or the punishment, and would be wholly useless. Besides, it would be absurd to punish the misdemeanors of uttering and passing counterfeit coin with precisely the same punishment, all defined in the same section, and then say it was the intention of Congress to give a defendant charged with making the counterfeit ten challenges, and another defendant who passed it only three, while both offenses are defined and punished by the same section and with the same punishment. There is no substantial reason for such a distinction. One crime is just as heinous as the other in the sense of this statute, and they are upon an equal footing. It is ruled that the defendant can have but three challenges. See note on this case 22 Alb. L. J. 250. [Reporter. |