Sol. Gen. Jenks, for appellants.
FULLER, C. J.
De Walt, the appellee, was tried and convicted, upon an information, of the crime of embezzlement, and making false entries as the president of a national bank, in violation of section 5209 of the Revised Statutes, and sentenced and committed to the penitentiary for 10 years. This section prescribes the punishment of imprisonment for not less than five nor more than ten years, which imprisonment may be ordered to be executed in a state jail or penitentiary. Rev. St. 5541. Appellee was subsequently discharged on habeas corpus, upon the ground that the crime in question was an infamous crime, for which he could not, under the constitution, be held to answer on information, but only on presentment or indictment by a grand jury. From the order discharging him this appeal is prosecuted, and it is contended that a crime is not infamous which is not subject to the penalty of hard labor as part of the punishment of imprisonment. This, however, was otherwise ruled in Mackin v. U. S., 117 U.S. 348 , 6 Sup. Ct. Rep. 777, where this court held, speaking [128 U.S. 393, 394] through Mr. Justice GRAY, 'that at the present day imprisonment in a state prison or penitentiary, with or without hard labor, is an infamous punishment.' That case is decisive of this, and the order appealed from must be affirmed.