United States v. Jones

Henderson, J.:

The defendants were convicted of bribery. The prosecution was brought under section 5451 of the Revised Statutes of the United States, providing punishment for any person or persons who shall bribe, or attempt to bribe, any United States officer, intending thereby to induce him to do or not to do any act in violation of his lawful duty. A demurrer was interposed, 'which was overruled, and the defendants asked and demanded separate trials. This was refused by the court, and they were put on trial together.

The question as to whether the defendants were entitled to separate trials is the only one we deem it necessary to discuss, and is one of importance and difficulty. The territorial statute (section 1845, p. 568, Comp. Laws 1876) provides that “a felony is a crime which is or may be punishable with death or imprisonment in the penitentiary. Every other crime is a misdemeanor.” Section 262 of the Criminal Practice Act of 1878 is as follows: “When two or more defendants are jointly indicted for a felony, any defendant requiring it must be tried separately. In other cases the defendants may be tried separately or jointly, in the discretion of the court.” It is. admitted that the territorial statute would govern when it relates only to practice and procedure, and in our opinion this statute relates only to procedure, and does not curtail or restrain the jurisdiction of the court: Reynolds v. U. S., 98 U. S., 145; Miles v. U. S., 103 U. S., 304; Hornbuckle v. Toombs, 18 Wall., 648; Clinton v. Englebrecht, 13 Wall, 434. The statute under which this prosecution is brought does not characterize the offense as a felony or a misdemeanor, but simply provides that whoever violates it shall be fined not to exceed three times the amount of the value of the bribe ' offered, and shall be imprisoned not more than three years. No place of imprisonment is designated in the statute, but under the law of the United States in force in this territory all persons convicted of offenses against the laws thereof, when any imprisonment is inflicted, are imprisoned in the penitentiary. On the part of the de *554 fense it is claimed that as the defendants might be imprisoned in the penitentiary, that therefore they are entitled as of right to separate trials, while on the part of the government it is contended that, as the crime is not characterized as a felony, the statute of the territory providing for separate trials does not apply, but that it must be regarded as a misdemeanor within its meaning. The Criminal Code of the United States recognizes no distinction between felonies and misdemeanors as they existed at common law: U. S. v. Wynn, 9 Fed. Rep., 886. Nor, as a rule, does it classify or distinguish crimes as such, or recognize it as a standard in grading punishments. The chapter in which the statute under which this punishment is brought is found, declares and provides punishments for many crimes, and in many cases the penalties are extreme, but in very few instances are they characterized or classified as felonies or misdemeanors. There is no doubt that the' legislature, in passing the statute giving defendants jointly indicted the right to demand and have sejiarate trials, intended to give that right to persons charged with the more serious and aggravated crimes, and for which the penalties are considerable, and to deny it as a matter of right to persons charged with petty offenses. This is no doubt the spirit and intent of the statute. The statutes of the territory punish the former class of offenses by imprisonment in the penitentiary, while the latter are punished otherwise. In formulating the statute relative to separate trials the legislature used the term “felony” with the meaning that it had previously provided it should have, that is, “crimes which might be punished with death, or imprisonment in the penitentiary.” The rule was made as a part of the territorial system, and it used a standard of its own, one that is recognized by the system, and is certain, and thereby accomplished its purpose. When this rule conies to be adopted and applied to a jurisdiction or a system that does not recognize the standard used by the rule in determining the particular cases to which it applies, then, in apxoly-ing it, its spirit and object should be consulted. We do not mean to say that there might not be cases where the *555 penalty to be inflicted tinder a United States statute is so ’ small and trivial that even though imprisonment would have to be in the penitentiary, it might still be regarded as not within the reason o£ the statute. But where the penalty is of the severity provided in this statute under which this prosecution is brought, we think that, as a matter of right, the defendants were entitled to demand separate trials. For this error the judgment appealed from is reversed, and the cause remanded.

Boreman, J., concurred.