16 ._ EEDERAL m=:1>0BTm2.
~ A UNITED STATES v. HEILLEY.
(Owcuit Court, D. Nevada. April 7, 1884.)
CRIMINAL LAW—ELIBEZZLENIENT NOT AN INFAMOUS CRIME.
Embezzlement is not an " infamous c1·ime" within the intention of the fifth
amendment of the constitution, and hence a person charged therewith may be
tried without the intervention of a grand jury.
Information for Embezzlement.
Trjcmncr Cojin, U. S. Atty., for the United States.
W. W. Bishop, for defendant.
SAWYER, J. Motion to rescind the order made by United States Dis-
trict Judge Human granting leave to file an information for embezzle-
ment by a postmaster, and to strike the information from the files, the
case having been transferred to the circuit court for trial. I have no
doubt thatthe court has jurisdiction to try offenders for misdemeanors
and offenses not capital or otherwise infamous, upon informations filed
by leave ofthe court, and that the offenses charged in this case are not
infamous. Whether the information presents a proper case for grant-
ing leave to the United States attorney to file it, is a question for the
exercise of a sound discretion by the court. Generally, in this circuit,
unless for some substantial reason the court otherwise determines, it
has been required that the party charged shall be examined and held
to answer by some committing magistrate, or else that evidence show-
ing probable cause should be made to appear insome proper form
before granting leave. In this case the information was verified by
the direct, positive affidavit of the United States attorney, and, upon
_ being arrested upon a warrant issued thereon, the prisoner was ex-
amined and held to answer for the offense set out in the information.
I think the circumstances are sufficient to justify a refusal tot vacate
the order granting leave, and to strike the motion from the files.
For authorities sustaining this action see Spear on the Law of the
Federal Judiciary, 406, and the authorities there cited. See, also,
U.· S. v.,_Shepard, 1 Abb. (U. S.) 437; U. S. v. Waller, 1 Sawy. 701;
U. S. v. Block, 4 Sawy. 211; In rc Wilson,. 18 Frm. Rmx 33; Thatch.
Pr. 650-652, and cases cited. I
- " Let an order be entered denying the motion. `
See U. 8. v. Fakzld, 16 FED. REP. 778, and note, 779, and U. S. v. Petit, 11
Finn: Rnr. ,58, and note, 60.—[En. ,