INFAMOUS CRIME. A crime which works infamy in one who has committed it.
The fifth amendment of the constitution of the United States declares that, with cer tain exceptions not here material, "no per son shall be held to answer for a capital, or otherwise infamous crime, unless on a pre sentment or indictment of a grand jury." A similar provision is contained in many of the state constitutions, although in some later ones there is a tendency to abridge the common-law strictness of requiring indict ment by a grand jury.
It is settled that the provision of the fed eral constitution above quoted restricts only the United States so that a state may au thorize an offence—capital or infamous—to be prosecuted by information ; State v. Jack son, 21 La. Ann. 574 ; this rule of construc tion has been uniformly applied to the gener al restrictions contained in the first eight amendments; Barron v. Baltimore, 7 Pet. (U. S.) 243, 8 L. Ed. 672 ; Murphy v. People, 2 Cow. (N. Y.) 815; Pom. Const. L. § 231-8.
Under the fifth amendment of the United States constitution, a person charged with murder, committed in Oklahoma Territory prior to statehood, must be prosecuted by indictment; Reed v. State, 2 Old. Cr. App. 589, 103 Pac. 1042 ; Hayes v. State, 3 Okl. Cr. App. 1, 103 Pac. 1061; but an indictment is not required even in cases of common law felonies under a state constitutional pro vision that no one shall be deprived of his liberty except by the laws of the land, and the legislature may authorize prosecutions by an information ; State v. Stimpson, 78 Vt. 124, 62 Atl. 14, 1 L. R. A. (N. S.) 1153, 6 Ann. Cas. 639.
It was said by Mr. Justice Miller, "There has been great difficulty in deciding what was meant a- hundred years ago by the phrase infamous crime, which is used in this constitutional amendment. That difficulty is not diminished by the fact of the obscurity of the language itself as construed by what is known of the laws and usages of our an cestors at that time, in connection with the fact that both state and federal legislation in regard to crime may have made that in famous since, which would not have been so considered then ;" Miller, Const. U. S. 504.
The question was not authoritatively decided by the supreme court until 1885, when in Ex parte Wilson the theory that the true test ls the nature of the crime, as understood at common law, was distinctly negatived, and it was said by Mr. Justice Gray for the court : "When the accused is in danger of being sub jected to an infamous punishment, if con victed, he has the right to insist that he shall not be put upon his trial except on the accusation of a grand jury ;" and the fifth amendment, declaring in what cases a grand jury should be necessary, practically affirmed the rule of the common law. This was that informations were not allowed for capital crimes nor for any felony, i. e. an offence which caused a forfeiture; 4 Bla. Com. 94, 95, 310; thus the requirement of an indictment depended upon the consequenc es of the convict, and it was concluded that the constitutional substitution of the words "a capital or otherwise infamous crime" for capital crimes or felonies, "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 lead ing word capital describing the crime by its punishment only, the associated words or otherwise infamous crime must, by an ele mentary 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." Having determined that the character of the punishment was to be the criterion ap plied in such cases, the court discussed the question what punishment would be consid ered infamous, and carefully confining the decision to the requirements of the case, continued thus : "Deciding nothing beyond what is required by the facts of the case be fore us, our judgment is that a crime, pun ishable by imprisonment for a term of years at hard labor, is an infamous crime, within the meaning of the Fifth Amendment of the constitution." Ex parte Wilson, 114 U. S. 417, 418, 5 Sup. Ct. 935, 29 L. Ed. 89; U. S. v. Petit, 114 U. S. 429 note, 5 Sup. Ct. 1190, 29 L. Ed. 93..