provide, notwithstanding any act of Congress to the contrary:
?(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony.
'(2) Any other offense is a misdemeanor.
'(3) Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $ 500, or both, is a petty offense.'
Thereunder it is quite clear that, even in the absence of the use of the term 'misdemeanor' in defining the nature of the offense of which defendant was convicted, his conviction was of 'a petty offense.' But that a petty offense is an 'offense' of a criminal nature against the United States has already been shown by Callan v. Wilson, supra. In fact, it is well settled that, even if not called a crime, if punishment is imposed, as distinguished from a civil remedy, the offense is criminal in nature. Mossew v. U.S., 2 Cir., 1920, 266 F. 18, 11 A.L.R.1261; United States v. Seibert, D.C.W.Va.1924, 2 F.2d 80. Indeed it has been repeatedly held that violations of Section 322(a), supra, constitute convictions of a criminal nature. United States v. Chadwick, D.C.E.D.Pa.1940, 39 F.Supp. 204; United States v. Great Eastern Lines, D.C.Va.1950, 89 F.Supp. 839; United States v. Gunn, D.C.W.D.Ark.1950, 97 F.Supp. 476. Not only so, but the history of Section 322(a) itself shows that what Congress intended by its enactment thereof was to impose sanctions of a criminal nature. See the allusions thereto in Senate Report 82, February 25, 1949, House Report No. 971, July 6, 1949, both to accompany S. 256, where, under Section 15 of such report, the Section in question is referred to as being 'punishable by fine in a criminal proceeding.' U.S. Code Congressional Service, Vol. 2, 81st Cong., 1st Sess., 1949, p. 1645. See also the similar allusions to the same statute, as amended, U.S. Code Congressional and Administrative News, Vol. 2, 85th Cong., 1st Sess., 1957, p. 1470.
Nor can it be contended that the provision in the Federal Rules of Criminal Procedure that 'These rules are not applicable to * * * the collection of fines and penalties * * *', F.R.Cr.P. 54(b)(5), renders the above provision in the Rules inapplicable to the indictability of petty offenses. This is because the above clause in the Federal Rules of Criminal Procedure covers simply 'the collection of fines and penalties', not the imposition of fines and penalties with which we are here concerned. Barron, Federal Practice and Procedure, Vol. IV, p. 532, fn. 11 (1951).
Defendant further objects that in New Jersey a State Sheriff, who for present purposes can only fingerprint one arrested for an indictable offense, could not indict defendant here, since in New Jersey one convicted of a petty offense is not indictable. It is true that petty offenses are not indictable in New Jersey. State v. Maier, 1953, 13 N.J. 235, 99 A.2d 21; State v. McGrath, 1954, 17 N.J. 41, 110 A.2d 11; State v. Chiarello, 1954, 17 N.J. 36, 109 A.2d 803. But this is beside the point. Federal offenses and State offenses are by no means the same or clearly comparable. Because of the difference between the Federal jurisdiction and that of the State, many Federal offenses are quite incomparable to those of the State. It is therefore impossible to compare the nature of every State offense with the nature of every Federal offense. The best that can be done is to use the statutory criterion as to the powers of the State Sheriff, and apply that to the powers of the Federal Marshal. This criterion, as previously stated, is whether or not, so far as this case is concerned, the offense of which the defendant was convicted was 'indictable.' That it was has been clearly shown. Further, it is unrealistic to infer that Congress has subordinated Federal law to State law without expressly stating such to be the case. Here Congress has used (quite probably for convenience) the duties of the Sheriff as a guide to the Marshal's duties. This refers to ministerial duties. Thus, as shown, the Marshal may fingerprint upon arrest for an indictable offense. But Congress has not gone any further than to delineate these ministerial duties through the use of the State statute. There is no statutory delegation requiring a Federal Court to look to State law for the characterization of a Federal offense. In the absence of such express delegation, Federal law must govern and, as has been indicated, Federal law characterizes the instant offense as being indictable.
Defendant further objects that, since the Marshal did not fingerprint him upon his arrest, he can no longer fingerprint him. This is indeed a surprising conclusion, particularly in view of the decision by the New Jersey courts as to the purpose of fingerprinting only after arrest. This is clearly shown by McGovern v. Van Riper, 1945, 137 N.J. Eq. 24, 43 A.2d 514 to be simply to protect an individual from being fingerprinted before his arrest, i.e., at a time when it is not certain he will even be prosecuted. The purpose of this protection of the individual from fingerprinting when not to be prosecuted, is hardly subserved by preventing the fingerprinting after the defendant has been not only prosecuted but convicted, as here. As long as the protective purpose of the State provision is retained, the defendant has no right to object to the time adopted by the Marshal in doing his ministerial duty as to defendant, who must be fingerprinted for identification purposes for the protection of the public.
Defendant further objects that, since he surrendered voluntarily and was never arrested, he can never be fingerprinted. This claim answers itself. As well might a murderer who has surrendered himself claim his freedom from fingerprinting by the New Jersey Sheriff. Defendant's claim that, by attempting to fingerprint him, the Marshal is in effect guilty of unlawful arrest, is similarly without substance.
The fingerprinting of defendant by the Marshal is lawful. An order may be entered accordingly.