Paterson, J., dissenting. It seems to me that my brothers have fallen into error in assuming that the offense with which this petitioner stands charged is not an "infamous offense,” within the meaning of our constitution, simply because it is a misdemeanor. The question whether an offense is an “infamous offense” or not does not depend [566]upon the nature or extent of the punishment; it is the nature of the crime, not the punishment, which makes it infamous. At common law, persons convicted of petty larceny and whipped were held incompetent witnesses because infamous, but no matter how infamous the punishment, unless it was inflicted for a capital offense, a crime against nature, or for forgery, perjury, or some other species of crimen falsi, infamy did not attach. (Pendock v. Mackinder, Willes, 665; Co. Lit., 6 b, n. 1; United States v. Porter, 2 Cranch C. C. 63; State v. Gardiner, 1 Root, 485; People v. Whipple, 9 Cow. 708.) There are no authorities to the contrary, and there is no doubt that at common law a conspiracy to “falsely, and maliciously indict another for any crime, or to procure another to be charged or arrested for any crime,”—which is the charge against this petitioner,—was an infamous offense. It is infamous in fact, infamous in law. (1 Greenl. Ev., sec. 373, note, and cases cited therein.)
In New York and some other states the term “infamous crime,” when used in any statute, is defined by statute to include only such offenses as are punishable with death or by imprisonment in the state prison. No such construction has ever been put upon the term in this state. We are therefore bound to presume that it is used in the constitution and in the laws in the same sense that it was used at common law. (Pol. Code, sec. 4468; United States v. Block, 4 Saw. 214; Lyford v. Farrar, 31 N. H. 315.)
The constitution of 1863 provides that “no person shall be held to answer for a capital or otherwise infamous crime (except in cases of ... . petty larceny ....), unless on presentment or indictment of a grand jury.” That rule is referred to and is re-enacted by the new constitution, with the exception that prosecutions may now be had by information. (Art. 1, sec. 8.) The constitution of the United States is almost identical in language with our own on this subject. It provides: “No person [567]shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury, except,” etc. (Art. 5, Amendments.) It has been decided by the national courts that this “ amendment to the constitution of the United States prohibits any proceeding other than by indictment in all cases of infamous crimes, whether they are misdemeanors or not.” ( United States v. Block, supra.) In that case Judge Deady said: "The word ‘infamous/ as used in the fifth amendment, must be taken in the sense in which it was used and understood at the common law from which it was taken. That is the sense in which it was used and understood by those who made and adopted the constitution and the amendments to it. (Rains v. The Schooner, 1 Bald. 558.) As has been shown, at common law, this term was applicable only to certain crimes, which from their' nature implied a total want of truth in the person committing them, without reference to the fact of whether they were otherwise distinguished as felonies or misdemeanors. Neither was it the punishment, hut the nature of the act constituting the crime, which made it infamous; ex delicto non ex supplicio emergit infamio.....The following have been determined to be such crimes: forgery, perjury, subornation of perjury, suppression of testimony by bribery, or conspiracy to procure the absence of a witness, or other conspiracy to accuse one of a crime.”
But it is useless to examine the authorities upon the question whether the distinction between crimes infamous and those which are not infamous depends upon the grade of the offense,—whether a misdemeanor or a felony. The provision of the constitution of 1863, which we have quoted above, expressly excepts from the class of offenses designated as infamous crimes "cases of petty larceny.” Here is a clear recognition of the fact that there were infamous offenses in this state which were misdemeanors, for petty larceny itself, one of the cases excepted, is a [568]misdemeanor; and this provision is re-enacted in section 8, article 1, of our present constitution.
If I am correct in saying that the infamy of the crime with which this petitioner stands charged does not depend upon the question whether it is a felony or a- misdemeanor, and that it is to be considered as it was at common law, an infamous offense,— and such seems to me to be the clear letter of the constitution in the bill of rights,—then there is no machinery by which aprosecution can be had in the police court, and that court has no jurisdiction. A statute conferring jurisdiction upon an inferior court, without making provision for a procedure therein consistent with the constitutional rights of the citizen, is abortive and void. (Thomas v. Bibb, 44 Ala. 723.) If it be conceded that the legislature might provide for prosecutions in police courts by indictment or information, it is sufficient to say that it has not done so. 'If this court has ever said that the form of procedure by which an offense is prosecuted is immaterial (i. e., with or without a preliminary examination by magistrate or grand jury), such decision is to be regretted, and should be overruled; for it not only violates the plain letter of the constitution, but deprives the citizen of one of the most valuable rights guaranteed to him by the constitution itself. It was never intended by those who framed the constitution, or by those who adopted it, to give to inferior courts the power to try a citizen for an offense of so grave a nature simply upon an affidavit. The right to be free from prosecutions for such offenses, except after an examination by a grand jury, or a committing magistrate, after opportunity to be heard before the latter, is a valuable right, and one that the framers of all constitutions have preserved to the citizen. A judgment of conviction in cases like the- one before us not only subjects the defendant to a heavy fine and imprisonment, but deprives him forever of “ the privileges of an elector in this state.” (Art. 2, sec. 1, Const.)
[569]But I cannot read Ex parte Wallingford, or Gafford v. Bush, so as to construe it as it is construed in the leading opinion. The question before the court in Ex parte Wallingford was, whether the superior court had jurisdiction in cases of petit larceny. It was held that it had ' not. As we .have shown above, cases of petit larceny are expressly excepted from the operation of article 1, section 8, of the constitution, and this is what was decided in Ex parte Wallingford,—nothing more. That case not only does not sustain the contention of the petitioner here, but, as I read it, it is by implication an authority directly to the contrary; for the court there said: “Whether or not there are any misdemeanors included within the provisions of section 115, which are required by the provisions of the constitution to be prosecuted by indictment or information, need not be determined in this case. But it is clear that there is nothing in the constitution which prohibits the legislature from requiring the crime of petit larceny to be otherwise prosecuted.....It will be thus seen that cases of petit larceny are expressly excepted from, the constitutional provision prescribing the mode of prosecution,and are left to the regulation of the legislature.”
Here is a clear intimation that there are classes of misdemeanors for which the constitution has prescribed the mode of prosecution. In Gafford v. Bush the question was, whether the superior court had jurisdiction of an indictment charging a person with keeping open a saloon on Sunday. No one contended in that case that the crime charged was an infamous offense, and, of course, as the penalty was a fine not exceeding five hundred dollars, or imprisonment not exceeding six months, or both such fine and imprisonment, it was held that the legislature had properly invested the justices’ court with jurisdiction. In that case, the questions considered and decided by the court in Ex parte Wallingford were affirmed, and the court there, too, seems to intimate that it was not intended to be left [570]to the legislature to vest jurisdiction in other courts than the superior courts in all misdemeanors, but only “in a certain class or classes of minor offenses . . . . ; for by it the superior courts would be left to attend to cases of a more important character, and they would not consume time in trying persons charged with petty offenses, to the neglect of matters of a graver nature.”
With the expediency of the constitutional provision under consideration we have nothing to do. It. may be true that it will be difficult in some cases to determine whether the offense charged is an infamous offense or not, but that is a matter for future consideration. It is often difficult to tell whether a given matter is a matter of law or of fact, but the difficulty in determining the matter does not affect the distinction.
It is claimed that the justices’ court has heretofore been given jurisdiction of these offenses. I have been uuable to find any statute in support of this contention. It is trúe, as claimed, the legislature has attempted to confer upon the police court by the act of 1871-72 jurisdiction in all misdemeanors where the penalty is a fine of one thousand dollars, or imprisonment for one year, or both fine and imprisonment, but such an attempt cannot override a plain constitutional provision. The language of the constitution is: “Offenses heretofore required to be prosecuted,” etc. Prior to the adoption of that provision, as we have shown, the constitution of 1863 required all infamous crimes, except petit larceny, to be prosecuted by presentment or indictment.
Without considering any other of the points made by the respondent, it seems to me clear that the jurisdiction to try the offense with which the petitioner stands charged must rest in the superior court, at least until some machinery is provided for a prosecution by indictment or information in the police court.