This decision was followed by a number of others which adhered to the same doctrine and decided that imprisonment in a state prison or a penitentiary with or without hard labor was an infamous punishment ; Mackin v. U. S., 117 U. S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909 ; Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849; Parkin son v. U. S., 121 U. S. 281, 7 Sup. Ct. 896, 30 L. Ed. 959 ; U. S. v. De Walt, 128 U. S. 393, 9 Sup. Ct. 111, 32 L. Ed. 485 ; Medley, Pe titioner, 134 U. S. 160, 10 Sup. Ct. 384, 33 L. Ed. 835 ; In re Mills, 135 U. S. 263, 10 Sup. Ct. 762, 34 L. Ed. 107; In re Claasen, 140 U. S. 200, 11 Sup. Ct. 735, 35 L. Ed. 409.
Before this decision there had been a tendency on the part of the courts towards the doctrine that the question of infamy was to be determined by the nature of the crime and not at all by the character of the punishment.
Prior to the independence of the United States there were understood to be two kinds of infamy,-one based upon the opinion of the people respecting the mode of punish ment, and the other having relation to the future credibility of the offender ; Eden, Pe nal L. ch. 75. Because the legal bearing of the subject was mainly if not entirely with respect to the settlement of rules determin ing what crimes would disqualify the perpe trator from testifying. Accordingly the clas sification of crimes other than treason or felony, which were held to be infamous, were naturally those the commission of which would tend to cast discredit upon the veraci ty of the criminal,-denominated generally by the term crimen falsi. The manifest pur pose of the constitutional provision under consideration was the incorporation into fun damental law of one of the great guarantees of liberty. "A mere reference to the history and adoption of this provision into the fed eral constitution is sufficient to show that It was not a question of competency or in competency to testify that the framers of our government were considering, but rather in consequences to the liberty of the individ ual In securing him against accusation and trial for crimes of great magnitude, without the previous interposition of a grand jury ;" Butler v. Wentworth, 84 Me. 25, 24 Atl. 456, 17 L. R. A. 764.
As was said by Shaw, C. J., in an opinion quoted with approval in Ex parte Wilson, supra, "The state prison for any term of time is now by law substituted for all the ig nominious punishment formerly in use ; and, unless this is infamous, then there is now no infamous punishment other than capital." It is said in a case subsequent to that in which the supreme court settled the princi ple, under the laws of the United States, an infamous crime is one for which the statutes authorized the courts to award an infamous punishment. Its character as being infa
mous does not depend on whether the punish ment ultimately awarded is an infamous one, but whether it is In the power of the courts to award an infamous punishment, or wheth er the accused is in danger of being subject ed to an infamous punishment ; Ex parte McClusky, 40 Fed. 71; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; But ler v. Wentworth, 84 Me. 25, 24 Atl. 456, 17 L. It. A. 764.
The authoritative settlement of this ques tion by the supreme court renders it unnec essary to refer to the earlier decisions of the federal courts, which in some cases sup ported a different view. Many of them are referred to in the opinion of the supreme court, and the theories on which they are based are expressly disapproved. In some of the state courts the same conclusion was reached ; Gudger v. Penland, 108 N. C. 593, 13 S. E. 168, 23 Am. St. Rep. 73 ; State v. Reeves, 97 Mo. 668, 10 S. W. 841, 10 Am. St. Rep. 349 ; Butler v. Wentworth, 84 Me. 25, 24 Atl. 456, 17 L. R. A. 764.
It has also been held that a crime to the conviction and punishment of which congress has superadded a disqualification to hold of fice, is thereby made infamous ; U. S. v. Waddell, 112 U. S. 76, 5 Sup. Ct 35, 28 L. Ed. 673; Ex parte. Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89. The course of decisions cited renders the cases as to par ticular crimes of little value, but of those held to be infamous under the principle stat ed are, larceny ; U. S. v. Fuller, 3 N. M. (Johns.) 367, 9 Pac. 597; Ex parte McClus ky, 40 Fed. 71; assault with intent to kill; Ex parte Brown, 40 Fed. 81; selling liquors without paying a revenue tax ; U. S. v. Jo hannesen, 35 Fed. 411; In re Mills, 135 U. S. 263, 10 Sup. Ct. 762, 34 L. Ed. 107; refus ing to register voters; U. S. v. Cobb, 43 Fed. 570; counterfeiting United States securities; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; embezzlement and making false entries by an officer of a national bank ; U. S. v. De Walt, 128 U. S. 393, 9 Sup. Ct. ill, 32 L. Ed. 485; Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849 ; In re Claas en, 140 U. S. 200, 11 Sup. Ct. 735, 35 L. Ed. 409. When a state authorizes prosecution by information, one accused of grand larceny before its admission as a state cannot be so prosecuted ; State v. Xingsly, 10 Mont. 537, 26 Pac. 1066. See INFAMY; INDICTMENT; IN FORMATION.