*1 rights dеclaratory judgment and lia- termine advance the issues which fact as to appear actions, parties would the state parties arе also court who bilities pending trial, sup- litigation ques- not in the is the then at the latest court state plementary proceedings in the declara- in aid execu- the issues of whether tion. tory judgment be determined action can This is true be- case. state court in the Accordingly, principles we think the axiom that the basic Co., found in v. Excess Ins. Brillhart jurisdiction acquired first which has supra, judge and relied controversy and of amply support judicial his exercisе of aspects of all determine refusing hear, discretion in and in dis- controversy interference without missing this matter. court. from another Judgment of the is af- District Court firmed. Generally, declaratory judgment brought casualty insurers are
suits purpose of de District Court termining insurer whether the required insured in a state to defеnd the ques Here there is no such ap ; controversy no between there is insured; Ledford, ap pellant required defend Ledford is any al basis his the state actions LINES, Inc., ALTERMAN TRANSPORT leged well, liability, defend Ivan and as Appellant, Evans, Ledford’s car who is driver of alleged car Led- to have driven the America, UNITED STATES оf which, policy permission, under the ford’s Appellee. required do, No. 16602. permission established. States Court of rights appellant will be fore- No of the Fifth Circuit. the trials state closed May 13, 1958. obligation actions; Ledford, to defend Aug. 28, 1956. by permission, his car and requires driver of assume fancied em- it to disadvantage before a barrassment jury presence of its counsel in a trial in state court where others parties. insured are present procеeding effect, would
In jury transfer of the result questions fact county cases to the Dis- for determination trict Court view, usurp- jury, which, in our would county ing court. the function extending us, This, would be it seems to declaratory judgment act the use beyond purpose. permissive Evans’ issue of use fact would be determined of Ledfоrd’s vehicle litigation. in the state at some thing only Court could the District case would to de- do if heard this *2 Guilmartin, Atty. U. S. for Southern Florida, Miami, Fla., ap-
District of pellee. for Judge, Before and TUTTLE BROWN, Circuit Judges.
TUTTLE, Judge. Circuit This is an from the conviction one count jury-waived an information in a case
of violation 322(g) of 49 U.S.C.A. re- § lating filing wilful to the Interstate Commerce Commission. This provides section of the statute as follows: * * * “Any motor * * * who shall knowingly and wilfully file with the Commission report, account, false * * * guilty shall be deemed * * a misdemeanor proceedings The criminal were com- filing menced against of an information appellant, 20 of Count which part alleged: in essential Transport Lines, “Alterman * * and wil- fully make and said Commission February, 1955, month showing during falsely thereon employed by said month no driver operated a vehicle in ex- drove cess of the hours in said regulations, when and in truth fact, knew, as defendant well re- quired drivers in its operating еmploy motor vehicles in commerce interstate duty remain on operate and to drive and motor pre- vehicles excess hours regulations, said scribed etc.” To this information filed its dismiss on motion to that: Golden, George Cheren, Miami, Robert counts “Each of said fails to Washington, Hand, Jr., Fla., B. Frank facts sufficient to constitute an offense appellant. C.,D. against the United States of America.” Redd, and Lavinia L. Rosen David E. Miami, Fla., court overruled this Attys., David trial motion U. S. Asst. order Reg. Atty., in the same Dantzler, Com- overruled Interstate H. particulars. Atlanta, Ga., for bill of a motion Commission, James case merсe ap- properly sufficiency court found the trial and the went guilty formation dis- on Count its motion to failing twenty miss each of as counts apparently so intent Both were “to set forth facts sufficient aspects of the relation- on the technical *3 against an offense the United States.” trip-lease ship a ar- from which results This motion was overruled and the case rangement which certificated in a proceeded to trial. No further notiсe or its driver the “leases” a truck with assignment taken of needed be to single making trip from inde- of a preserve point appeal, to the оn other pendent them nor neither of owner that than quires rule the of which re- this Court that the information the noticed grounds specify that the brief the charge completely an offense fails to argued. be to does The information under statute. the allege Transportation not Alterman that We think the failure of the in Lines, report with the Com- allege filed appellant formation to that this alleges simply that Alterman mission. It report question the falsе in and the filed wilfully and “did make and alleged only appellant fact that it that said Commissions with prepared made and it is fatal ** government’s to the The triаl court overruling in erred motion to dismiss the disclosed without evidence The enough obviously “plain” and the error is actually appellant dispute filе a that under our though it, rules for us “notice” to then un the Government “specified not in the brief.” by prove false. Neither dertook to by is reversed and assignment specifica the of error nor remanded with directions that the has here com brief tion information dismissed. plained of the trial error of ovеrruling in motion to dismiss course, necessary is, not of It formation. Judge (specially criminal appellant in a case to for an concurring result). assignment of errors rec make an agree I, course, the view the U.S.C.A., 37(a) (1) ord, F.R. rule 18 majority timely effectively that and 24(2) Rule It is Crim.P. challenged below on the takеn U.S.C.A., relating Court, (b) 28 of this opinion, the information appellant, that: an brief of to the cannot, however, could not stand. brief contain “2. This agree uрon this record the omission -x- * challenged from the information now ex specification “(b) A mero motu is of the funda- sepa- upon, set which shall out relied prejudicial mental and character ascribed rately particularly error as- each and to it the court. This is that the error urged. Er- to intеnded and serted respect survived, (1) has according specified to this rors not urge failure defendant below disregarded; but the rule will specific a by the information or may option, court, notice a at objecting reception of the evi- specified.” plain error not (2) dence; judgment; thе verdict and (3) object a case which a de failure to not the mo- This is trial; (4) may for new indictment tion and or the submis- fective information making timely sion on if not ob waived deemed argument.1 timely appellant did and in brief jected to. ions; States, Cir., Rules Criminal Edenfield v. United Federal 5 Rule 1. Cf. States, 931; Grimsley Norton, 112 F.2d United United Stаtes v. Rroeedure: Cir., 527; dissenting 179 2 O’Brien, F.2d Cir., and 509 States v. F.2d 5 50 Cir., opinions; 341; concurring 7 F.2d Sutton 174 Rol States, Cir., Cir., States, v. United 5 F.2d land 200 157 F.2d opin- concurring dissenting especially so informa- This is sincе the twenty counts, nineteen was in
charging knowingly permitting and re- quiring drivers to remain on different duty longer for a time allowed law, twentieth, ques- the one in charging mаking here, dismiss,
statement, the motion while only, directed each of the counts stated “Each of said counts fails facts an offense.” sufficient to
Thus attention States was omission not called to the formation, op- and it not afforded portunity to correct it. judgment reversal, I concur in however, рerfectly because think plain: assigned by that, defendant, its motion for a directed ver- granted; dict have been be reversed with direc- acquit tions the defendant. FINLEY, Petitioner, R. E. INTERNAL OF REV- COMMISSIONER Respondent. ENUE, OF INTERNAL REV- COMMISSIONER Petitioner, ENUE, FINLEY, Respondent. Dick Jerline Nos. 5735. Court of States Tenth Circuit. April 1958. No. 5734 May