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from refusing to execute and deliver forthwith to such tax-payer his tax-bill, duly receipted, or to an applicant for a license a certificate that the amount of coupons tendered by such applicant has been deposited with him in payment of the tax or deposit required or assessed for said license, and from refusing, immediately upon the presentation of such certificate, to grant and issue the license applied for to such applicant, all in the same manner, and to have precisely the same force and effect as if said payments were made in coin or currency."
There is also a prayer for general relief. There was a final decree on bill, answer, replication, and proofs, granting the injunction as prayed for, and the defendants appealed. This bill is without precedent, and should have been dismissed. It is a clear case, as stated, of damnum absque injuria. So far as the contract with the complainant was, that the state should pay to him his coupons at maturity, there is, no doubt, a breach; but he asks no relief as to that, for there is no remedy by suit to compel the state to pay its debts. So far as the contract was to receive the coupons of the complainant *in payment of taxes and other dues to the state, there is no breach, for he does not allege that any of them have been tendered by any tax-payer or debtor to the state in payment of taxes or other dues; nor that there has been a refusal on the part of any tax collector, or other officer of the state charged with the col lection and receipt of taxes and dues to the state, to receive them in payment therefor. Personally the complainant has no right to offer them for such purpose, for he owes no taxes or other debt to the state. There is nothing shown in the bill by which he is prevented from transferring them to others who would have the legal right to use them in that way, except that, being discredited for such uses by the previous refusals of the officers of the state to receive other but similar coupons, the complainant can find no one willing to purchase them from him at a reasonable price for such purposes. This damage is not actionable, because it is not a direct and legal consequence of a breach of the contract, and is not distinguishable from the damage any creditor might suffer from the known inability or unwillingness of his debtors to perform their obligations. Such discredit might, and often does, result in the bankruptcy and financial ruin of the creditor, but no action lies to recover damages for the consequential loss, which the law does not connect with the default, as cause and effect. To enable the complainant to avail himself of the benefit of his contract with the state, to receive his coupons in payment of taxes, he must first assign them to some one who has taxes to pay, as he has not; but when he does so, by the assignment, he has lost his interest in the contract and his right to demand its performance, all right to which he has transferred with the coupons. It is only when in the hands of tax-payers or other debtors that the coupons are receivable in payment of taxes and debts due to the state.
The bill as framed, therefore, calls for a declaration of an abstract character, that the contract set out requiring coupons to be received in payment of taxes and debts due to the state is valid; that the statutes of the general assembly of Virginia impairing its obligations are contrary to the constitution of the United States, and therefore void; and that it is the legal duty of the collecting officers of the state to receive them when offered in payment of such taxes and debts. But no court sits to determine questions of law in thesi. There must be a litigation upon actual transactions between real parties, growing out of a controversy affecting legal or equitable rights as to person or property. All questions of law arising in such cases are judicially determinable. The present is not a case of that description.
The decree of the circuit court is accordingly reversed, and the cause is remanded, with directions to dismiss the bill; and it is so ordered.
(114 U. S. 417)
Ex parte WILSON.
(March 30, 1885.)
1. HABEAS CORPUS-JURISDICTION OF SUPREME COURT.
This court cannot discharge on habeas corpus a person imprisoned under the sentence of a circuit or district court in a criminal case, unless the sentence exceeds the jurisdiction of that court, or there is no authority to hold the prisoner under the sentence.
PROSECUTIONS BY INDICTMENT OR INFORMATION
The provision of Rev. St. 1022, authorizing certain offenses to be prosecuted either by indictment or by information, does not preclude the prosecution by information of such other offenses as may be so prosecuted consistently with the constitution and laws of the United States.
2. CRIMINAL LAW AND PROCEDURE
REV. ST. 1022.
In the record of a general conviction and sentence upon two counts, one of which is good, a misrecital of the verdict as upon the other count only, in stating the inquiry whether the convict had aught to say why sentence should not be pronounced against him, is no ground for discharging him on habeas corpus.
4. SAME-COMMITMENT TO PRISON IN STATE OTHER THAN WHERE CONVICTED - HABEAS
In the record of a judgment of a district court, sentencing a person convicted in one state to imprisonment in a prison in another state, the omission to state that there was no suitable prison in the state in which he was convicted, and that the attorney general had designated the prison in the other state as a suitable place of imprisonment, is no ground for discharging the prisoner on habeas corpus.
5. SAME-CERTIFIED COPY OF RECORD OF SENTENCE.
A certified copy of the record of a sentence to imprisonment is sufficient to authorize the detention of the prisoner, without any warrant or mittimus.
6. SAME-PRESENTMENT OR INDICTMENT BY GRAND JURY-FIFTH AMENDMENT.
A person sentenced to imprisonment for an infamous crime, without having been presented or indicted by a grand jury, as required by the fifth amendment of the constitution, is entitled to be discharged on habeas corpus.
7. SAME-INFAMOUS CRIME.
A crime punishable by imprisonment for a term of years at hard labor is an infamous crime, within the provision of the fifth amendment of the constitution, that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury."
Petition for a Writ of Habeas Corpus.
This is a petition for a writ of habeas corpus, presented to this court by a man confined in the house of correction at Detroit, in the state of Michigan, under a sentence to be imprisoned there for 15 years at hard labor, passed by the district court of the United States for the Eastern district of Arkansas, upon an information filed by the district attorney for that district. The record of the conviction and sentence, a copy of which was annexed to the petition, showed the following case:
The information, which was filed by leave of the court, contained two counts: The first count upon Rev. St. § 5430, for unlawfully having in possession, with intent to sell, an obligation engraved and printed after the similitude of securities issued under authority of the United States, to-wit, of an interest-bearing coupon bond of the United States; and the second count upon section 5431, for passing, with intent to defraud, a counterfeited interest-bearing coupon bond of the United States; and each count alleging that the bond was in the words and figures of a copy attached to the indictment and made part thereof. That copy was of an instrument purporting to be a bond of the United States Silver Mining Company of Denver city, Colorado, having printed at its head the words "THE UNITED STATES," in large and conspicuous capitals, followed on a lower line by the words "SILVER MINING COMPANY OF DENVER CITY, COLORADO," in much smaller and less distinct type, and bearing the signatures of "R. E. HULLSON, Pres't," and "J. H. MAY
SON, Sec'y," and otherwise numbered and lettered very much like a genuine bond of the United States. * The defendant filed a general demurrer to the information, which was overruled by the court; and he then pleaded not guilty, and was tried by a jury, who returned a general verdict of guilty; and he moved for a new trial, for insufficiency of the evidence to support the verdict.
The rest of the record (a certified copy of which was the only paper de livered to the keeper of the house of correction) stated that the defendant was brought to the bar in the custody of the marshal, and his motion for a new trial overruled, "and the said defendant, being now inquired of by the court if he have aught to say why the judgment and sentence of the court should not now be pronounced against him upon the verdict and finding of the jury in this case, finding him guilty of passing a counterfeit United States bond, and saying nothing further than he hath already said; and the court being now well advised in the premises; it is therefore considered, ordered, adjudged, and sentenced that said defendant, James S. Wilson, do pay to the United States a fine of five thousand dollars for said offense and all the costs of this proceeding, and that the United States have execution therefor, and that he be imprisoned for and during the term of fifteen years at hard labor in the house of correction at Detroit, Michigan, and that the said marshal of this district convey the said prisoner to the house of correction aforesaid, and deliver him to the custody of the keeper thereof, and that the clerk of this court make out for said marshal two copies of this judgment and sentence. duly certified under the seal of this court, one of which the said marshal shall deliver to the keeper of said house of correction, and the other return and file in this court, with the receipt of said keeper thereon."
The offense described in Rev. St. § 5430, is punishable by a fine of not more than $5,000, or by imprisonment at hard labor not more than 15 years, or by both; and the offense described in section 5431 is punishable by a like fine and imprisonment. The petitioner alleged in his petition, and contended in argument, that his imprisonment was illegal, upon the following grounds: First. That in excess of the power of the court, and in violation of the fifth amendment of the constitution, he had been held to answer for an infamous crime, and punished by a fine of five thousand dollars and imprisonment for the term of fifteen years at hard labor, without presentment or indictment by a grand jury. Second. That he was held under a judgment void, and in excess of the power of the court, upon an information for a crime which was not committed against the provisions of chapter 7 of the title "Crimes" in the Revised Statutes, in which cases informations were expressly authorized, and to which they were impliedly restricted, by section 1022 of those statutes. Third. That the judgment was void and in excess of the power of the court, because the conviction and the sentence were for different offenses, the conviction being for having in possession a bond of a mining company in the similitude of a United States bond, and the sentence being for passing a counterfeit United States bond. Fourth. That he was held by the keeper of the Detroit house of correction without authority of law, because the order of the court for his imprisonment did not show that the court had determined two questions of fact which were made by Rev. St. §§ 5541, 5546, conditions precedent to the exercise of its power to sentence to a prison outside the state of Arkansas, namely, (1,) that there was no suitable prison in that state, and (2) that the attorney general had designated the Detroit house of correction as a suitable penitentiary in another state. Fifth. That the keeper had no warrant or mittimus authorizing him to hold the prisoner, as required by Rev. St. § 1028.
Alfred Russell, for petitioner. Asst. Atty. Gen. Maury, for respondent. GRAY, J. It is well settled by a series of decisions that this court,*having no jurisdiction of criminal cases by writ of error or appeal, cannot discharge
on habeas corpus a person imprisoned under the sentence of a circuit or district court in a criminal case, unless the sentence exceeds the jurisdiction of that court, or there is no authority to hold him under the sentence. Ex parte Watkins, 3 Pet. 193, and 7 Pet. 568; Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U. S. 18; Ex parte Siebold, 100 U. S. 371; Ex parte Curtis, 106 U.S. 371; S. C. 1 SUP. CT. REP. 381; Ex parte Carll, 106 U. S. 521; S. C. 1 SUP. CT. REP. 535; Ex parte Yarbrough, 110 U. S. 651; S. C. 4 SUP. Ct. REP. 152; Ex parte Crouch, 112 U. S. 178; S. C. ante, 96; Ex parte Bigelow, 113 U. S. 328; S. C. ante, 542.
None of the grounds on which the petitioner relies, except the first, require extended discussion. The provision of Rev. St. § 1022, derived from the civil rights act of May 30, 1870, c. 114, § 8, authorizing certain offenses to be pros-ecuted either by indictment or by information, does not preclude the prosecution by information of other offenses of such a grade as may be so prosecuted consistently with the constitution and laws of the United States.
The objection of variance between the conviction and the sentence is not sustained by the record. The first count is for unlawfully having in possession, with intent to sell, an obligation engraved and printed after the similitude of securities issued under authority of the United States, and the copy annexed and referred to in that count is of such an obligation. Both the verdict and the sentence are general, and therefore valid if one count is good. Snyder v. U. S. 112 U. S. 216; S. C. ante, 118. The misrecital of the verdict, in the statement of the intermediate inquiry whether the prisoner had aught to say why sentence should not be pronounced against him, is no more than an irregularity, or error, not affecting the jurisdiction of the court.
The omission of the record to state, as in Ex parte Karstendick, 93 U. S.. 396, that there was no suitable penitentiary within the state, and that the attorney general had designated the house of correction at Detroit as a suitable place of imprisonment outside the state, is even less material. The certified copy of the record of the sentence to imprisonment in the Detroit houses of correction, if valid upon its face, is sufficient to authorize the keeper to hold the prisoner, without any warrant or mittimus. People v. Nevins, 1 Hill, (N. Y.) 154. But if the crime of which the petitioner was accused was an infamous crime, within the meaning of the fifth amendment of the constitution, no court of the United States had jurisdiction to try or punish him, except upon presentment or indictment by a grand jury. We are therefore necessarily brought to the determination of the question whether the crime of having in possession, with intent to sell, an obligation engraved and printed after the similitude of a public security of the United States, punishable by fineof not more than $5,000, or by imprisonment at hard labor not more than 15 years, or by both, is an infamous crime, within the meaning of this amendment of the constitution.
The first provision of this amendment, which is all that relates to this subject, is in these words: "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger." The scope and effect of this, as of many other provisions of the constitution, are best ascertained by bearing in mind what the law was before. Mr. WILLIAM EDEN, (afterwards Lord AUCKLAND,) in his Principles of Penal Law, which passed. through three editions in England and at least one in Ireland within six years before the declaration of independence, observed: "There are two kinds of infamy: the one founded in the opinions of the people respecting the mode of punishment; the other in the construction of law respecting the future credibility of the delinquent." Eden, Prin. P. L. c. 7, § 5. At that time it was already established law that the infamy which disqualified a convict to be a witness depended upon the character of his crime, and not upon the nature
of his punishment. Pendock v. Mackinder, Willes, 665; Gilb. Ev 143; 2 Hawk. c. 46, § 102; The King v. Priddle, 1 Leach, (4th Ed.)*442. The disqualification to testify appears to have been limited to those adjudged guilty of treason, felony, forgery, and crimes injuriously affecting by falsehood and fraud the administration of justice, such as perjury, subornation of perjury, suppression of testimony by bribery, conspiring to accuse one of crime, or to procure the absence of a witness, and not to have been extended to cases of private cheats, such as the obtaining of goods by false pretenses, or the uttering of counterfeit coin or forged securities. 1 Greenl. Ev. § 373; Utley v. Merrick, 11 Metc. 302; Fox v. Ohio, 5 How. 410, 433, 434. But the object and the very terms of the provision in the fifth amendment show that incompetency to be a witness is not the only test of its application.
Whether a convict shall be permitted to testify is not governed by a regard to his rights or to his protection, but by the consideration whether the law deems his testimony worthy of credit upon the trial of the rights of others. But whether a man shall be put upon his trial for crime without a presentment or indictment by a grand jury of his fellow-citizens depends upon the consequences to himself if he shall be found guilty. By the law of England, informations by the attorney general, without the intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was understood any offense which at common law occasioned a total forfeiture of the offender's lands or goods, or both. 4 Bl. Comm. 94, 95, 310. The question whether the prosecution must be by indictment, or might be by information, thus depended upon the consequences to the convict himself. The fifth amendment, declaring in what cases a grand jury should be necessary, and, in effect, affirming the rule of the common law upon the same subject, substituting only, for capital crimes or felonies, "a capital or otherwise infamous crime," manifestly had in view that rule of the common law, rather than the rule on the very different question of the competency of witnesses. The leading word "capital" describing the crime by its punishment only, the associated words "or otherwise infamous crime" must, by an elementary rule of construction, include crimes subject to any infamous punishment, even if they should be held to include also crimes infamous in their nature, independently of the punishment affixed to them.
A reference to the history of the proposal and adoption of this provision of the constitution confirms this conclusion. It had its origin in one of the amendments, in the nature of a bill of rights, recommended by the convention by which the state of Massachusetts in 1788 ratified the original constitution, and as so recommended was in this form: "No person shall be tried for any crime by which he may incur an infamous punishment or loss of life, until he be first indicted by a grand jury, except in such cases as may arise in the government and regulation of the land and naval forces." Journal Massachusetts Convention 1788, (Ed. 1856,) 80, 84, 87; 2 Elliot's Debates, 177. As introduced by Mr. Madison in 1789 at the first session of the house of representatives of the United States, it stood thus: "In all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary." Being referred to a committee, of which Mr. Madison was a member, it was reported back in substantially the same form in which it was afterwards approved by congress, and ratified by the states. 1 Annals Cong. 435, 760. Mr. Dane, one of the most learned lawyers of his time, and who as a member of the continental congress took a principal part in framing the ordinance of 1787, for the government of the Northwest territory, assumes it as unquestionable that, by virtue of the amendment of the constitution, informations "cannot be used where either capital or infamous punishment is inflicted." 7 Dane, Abr. 280. Judge COOLEY has expressed a similar opinion. Cooley, Const. Law, 291.
The only mention of informations in the
first crimes act of the United