CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
The offence denounced by section 5209 of the Revised Statutes is punishable by imprisonment not less than five nor more than ten years, and is therefore an infamous crime. In re Claassen, 140 U.S. 200, and cases cited.
The question then is whether the Circuit Court of Appeals for the Eighth Circuit has jurisdiction of a writ of error to
review the judgment and proceedings of the Supreme Court of the Territory of New Mexico in the instance of a conviction of an infamous crime.
By section five of the judiciary act of March 3, 1891, c. 517, 26 Stat. 826, it was provided that appeals or writs of error might be taken from the District Courts or from the Circuit Courts direct to the Supreme Court in six classes of cases, one of which classes was "cases of conviction of a capital or otherwise infamous crime;" and by section six, that the Circuit Courts of Appeals should exercise appellate jurisdiction to review by appeal or writ of error final judgments of the District Courts and the Circuit Courts "in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law. And the judgments or decrees of the Circuit Courts of Appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different States; also in all cases arising under the patent laws, the revenue laws or under the criminal laws, and in admiralty cases."
In harmony with previous legislation, 25 Stat. 784, c. 323; 26 Stat. 81, c. 182, § 42, section thirteen of the act of March 3, 1891, provides: "Appeals and writs of error may be taken and prosecuted from the decisions of the United States Court in the Indian Territory to the Supreme Court of the United States, or to the Circuit Court of Appeals in the Eighth Circuit, in the same manner and under the same regulations as from the Circuit or District Courts of the United States under this act."
Obviously this section was designed to give a review of the decisions of the court of original jurisdiction by an appellate tribunal, and the same reason would not obtain in respect of cases where such review could already be had; nevertheless section fifteen was added, although Congress did not see fit in relation to appeals or writs of error from and to the Supreme Courts of the several Territories to make the same provision thereby as that in section thirteen, except so far as the Circuit Courts of Appeals were concerned, and as to them only in cases in which their judgments were made final by the act.
Section fifteen is as follows: "That the Circuit Court of Appeals in cases in which the judgments of the Circuit Courts of Appeals are made final by this act shall have the same appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the Supreme Courts of the several Territories as by this act they may have to review the judgments, orders, and decrees of the District Courts and Circuit Courts; and for that purpose the several Territories shall, by orders of the Supreme Court, to be made from time to time, be assigned to particular circuits."
By section 702 of the Revised Statutes and the act of March 3, 1885, c. 355, 23 Stat. 443, the final judgments and decrees of the Supreme Courts of the Territories where the matter in dispute exclusive of costs exceeded the sum of five thousand dollars, might be reviewed, reversed, or affirmed in this court upon a writ of error or appeal in the same manner and under the same regulations as the final judgments or decrees of a Circuit Court.
In Shute v. Keyser, 149 U.S. 649, which was a case not falling within either of the classes in which the judgments of the Circuit Courts of Appeals were made final by the act of March 3, 1891, we held that as there was no provision by the fifteenth section of that act for appeals or writs of error except to the Circuit Courts of Appeals in cases in which their judgments were made final, and no express repeal of the provisions of the prior acts regulating appeals or writs of error from the Supreme Courts of the Territories ...