Myers v. United States

In Error to <§=>(134(2). the District Court Unit- 11. Criminal law error, record, indictment, and Nebraska; ed States for On writ of Jos- District considered, suffi- to determine can be eph Woodrough, Judge. W. ciency of indictment. eonvietpd Myers Preston B. (I). <§=>121 and 12. Indictment information intoxicating sale of liquor, brings and he er- particulars Function bill of to cure ror. Affirmed. details, or omission of neces- loose statement defense, sary prepare Gurley W F. and Hanley, James H. both to enable defendant to protect prosecution. and to him Neb. Omaha, (Gurley, West, Fitch & Omaha, Neb., brief), on the plaintiff for (I). <§=>121 13. Indictment and information error. Office bill of attaches without George Keyser, Atty.. distinction, dients Asst. ingre- indictment states S„ (James and further detail be re- Omaha, Kinsler, Neb. Atty., U quired protection or demanded for of defend- Epperson' and Ambrose C. and Andrew C. ant. Scott, Neb., Asst. U S. all of Attys., Omaha, on brief), for the United States. <§=>109. 14. Indictment information information, charges Indictment or Before STONE, VAN VALKEN- ingredients all essential elements and of stat- BURGH, and BOOTH, Judges. Circuit utory offense, good against general de- murrer. VAN VALKENBURGH, Judge. Circuit (5. <§=>202(5). Indictment January 26, 1925, there was filed information, charging Indictment or essen- plaintiff in error in the United States Court ingredients statutory tial elements of- fense, for good against special the District of Nebraska, after Omaha verdict of de- Divi- murrer, prejudice. in absence sion, an information consisting of five counts. The first three counts sales of intoxi- <§=>71. 16. Indictment and information cating liquor; the fourth count pos- unlawful Indictment must contain essential such; session of ingredient the fifth count was stated, for element and of offense so as to enáble defendant to tect defense the maintenance aof common nuisance subsequent prose'cution. himself from keeping sale, for barter and sale, liquor. of intoxicating At the trial jury (I). <§=>121 and information Indictment found the guilty defendant upon the second If indictment fails to advise defendant defense, safeguard counts, guilty third matters first sup- prosecution, from further details fifth counts, and at the direction of the court, plied by particulars. bill of guilty count; objections the fourth search warrant produced the evi- <§=>202(5) 18. Indictment and information —In- toxicating liquors <§=>215. dence which the fourth pred- count was intoxicating liquor Information for sale of having icated been sustained. specified day, juris- on certain within error, Plaintiff in below, filed good against general diction of de- held quash jury panel motion because verdict, murrer ably challenged. after when not season- exclusion, in drawing, jurors fense was committed and long-standing practice of the court was National Prohibition Act is unconstitutional moned from the ploy Douglas county, proper drawing place tained in the lege acted in cluding and void. properly overruled. the definite kind or character of ant also filed a trary action, ty requested on son for on done; but, do instant viding court to draw the purposes. offense. case, an approximation thereof. ative the city F. population approximates parts trial, was so as [1-3] being urged challenge the not think the discretion who seeks These The cited making (3) “Rev. St. (1) (2) (4) (6) Because the (5) pleaded. division of committed should be excluded. the of Des exceptions. to more The following that formed States ground. Because Because Because these 95 C. C. Because section 32 of Because the information case. practice same jurors, name grounds not unconstitutional it is not successfully doing. in the motion to jurors exercise of sale, to all Moines, assign district as the court shall direct jurors case concerned or similar Polk, act (C. record for the of the liquor the information does conclusions, in which Omaha is grounds: large percentage The burden would challenge absence shall be returned from creating and C. A. favorable the counts. jury required county 60. Iowa, a reason for the district which the information fails to [Comp. was amount demurrer were The population quash presumption purchaser, carried. language sound discretion. If tried. case that as was done Eighth require of such to the the situation as law authorizes in which the review, sold for can be alcoholic content St. of the instead MYERS pursuant title The order assign urged § 1254] embraces Circuit) information exclusion defining to that so far as it liquor, fails to request, Spencer this to be burden panel challenged sale a definite dients"as defined we impartial does situated; beverage repeated Douglas Defend- purpose that, not em- in this price, facts, crime think arbi neg- par con- such rea Ninth and conclusions. P.(Sd) the ex- the of- priving we UNITED al- tried ty picion view in the United States wherein urged lished permitted tory not obnoxious to the English formation parts meaning not be the information is not void for. failure Appeals constitutionality tive averments. sold an information tion states stated in C. A. 8th for a Booth United that the Donough 370; Circuit) act. Furthermore it is same effect. Booth United States cient quently The St. § cuit) C. A. 8th assignment [4-8] possible, in which prejudice, fact name act; price paid C. A. intoxicating liquor implies payment STATES approximation 10138]4 Heitler v. United Most of beyond the Alaska Circuit) claimed to supplied, pleaded accused rule held under the Volstead Act the foregoing ruling name the term “aleohol” has a definite substantially and is Circuit) F.(2d) knowledge, v. United States but, Circuit) are 2d crime was pleading district allege impartial 30; the. (4) particulars. debate. the demurrer. and differs et the in this Circuit) clearly summoning of of constitutional 703; accords brought specifically provides crime specifically vicinage. Massey seq.) have include Ninth immaterial. Code, purchaser. Pane v. United States The act under which this objections required be removed C. A. 8th even v. F. desired, upon application the the act has charge Meyers acquaintance, local set out purchaser need not be committed.” met. 283, 116 kind ease, that an been ineffective. supra. F. (2) jury States precise language the fitness for bever- containing the Circuit Court of has been unnecessary v. United with the dispose of Circuit elements that 293; (C. A. from the committed, 855. F.(2d) 379; alcoholic content. jurors The offense need It has been fre and character of information, employed sold the v. United urged Circuit) (3) defensive of the price (6) Prior from An jurors, so far The informa C. C. jurors from Hensberg requirement held to been and a In a statu unlawfully right to be It was un- prevailing to be sum- States allegation C. A. 7th to the statute is (C. therefor. any sus- (1) 9th thereto, (Comp. A. district ancient 288 F. ingre estab nega’ coun- mere suffi such fifth bias 645. Cir The Mc (C. de- in A. FEDERAL REPORTER 2d SERIES end ecution for the same offense. United States having no relation to stantial words of the ly within United States v. indictment, with expansion ed that the accused Britton, L. U. S. this country, A.) 703; better v. that, where nature of win’s 296 formation, tablished protected against the commission trict, Heitler v. United States States, 148 citing S. Hensberg the defendant of age able him to Ct. ground urged that, cific Cook, state, Criminal Criminal ecution for charge Hess, the omission to state in a general rule, specify States Ed. judgment That name of the A.)C. A.)C. purposes, F. city, purposes. information failed Adamson v. United States The rule nor, indeed, Reports, 17 Wall. 110; remains, 520; 516; 42 order it is rule from earliest times not United by Procedure, the defendant with county, state, v. United Procedure, (C. the accusation more 2 may prepare of the sale as 691; McDonough so L. Ed. 24 L. the S.U. L. Ed. from a number of the offense abundant Dukich v. United States statutory description U. prepare ordinarily as a bar but C. much far has been same acts. 119; of the S. Massey matter, purchaser, than the then, reasonable Cruikshank, 168-174, Ed. diselose sufficient in more than 1162; 30; because of 483-488, 655-661, possible subsequent pros States, supra. 8th must be 1135; less England. States v. statute, the 33 his defense and to be §§ the common 819; authority, Pane v. United States contains sufficient definiteness to enable the alleged 134; Bishop’s uniformly unnecessary Pettibone v. 170 to which is to be add Circuit) that was Flack et the information venue properly Corpus 376-378; distinguished (C. consider the effect jurisdiction, purely defense and facts, United U. S. certainty, subsequent v. United States 1 acts apprised by district, these the indictment or whether offense, S. Ct. S. Ct. Carll, Simmons, states; 1 (b) and this judicial 272 F coming A.) him, to the Juris, al. v. in the sub relative announced Wharton’s concerned, 606, law, statutory, omissions States v. in an in sold 1 Bald further only United tion of 280 F. of the to to en advise is es 18 plead Carll, Unit pros 542- Led New 680; 716, spe ful bill dis A.) for L. (a) 31 which U. 27 States S. v. on the record after conviction, could decide without leges render it tent the offense was either omitted, defendant to the same volving swer to the protected against quately pleaded is thus stated, and all the elements essential as stated rant their within formation is therefore to constitute an leged difficulty quash record after facts tion, demurrer. The Cochran & 287-290, 15 of the tifies viction of the The venue date, States acquittal plead support not so Cook, Ed. In United States of the essential elements and Beyond question this information states “(3) Of the cases “(2) “(1) The main reasons record, his it is charged grounds. should he United abstract merits. In all these v, particulars, offense defense in a were support article To To enable That the defendant’s generally acts, defective, all, United sale necessary Pettibone, attacked, by judgment. Simmons jurisdiction particular a conviction of could not determine that the facts charge.” its omissions Sayre review of conviction, to enable or, Evans v. United demurrer whether the States v. enure sufficient to and, rulings particular sold as one offense are demurrer. if he S. Ct. above question States v. facts sufficient defined are: if whether it is if the for him to make again to his city, were certified v. Simmons element' of essential an defendant on a conclusion in particular case, crime. it to diselose were prefer attacked his defense and to be Britton, cited alleged good against general defendant to court, does crime, county, then these the crime subsequent decide questioned support prohibited by Hess, requested, present. Beyond States, 157 United States v. not, it, court. statute. support a looking looking were sufficient United States is whether conviction in inspecting requirements or so inade- to submit wholly void, as in and to war- supplied-by whether and United jurisdiction to what ingredients after trial motion law, a convic- cases, question, charged. facts al- prepare It iden- general The in- specific protec- United and to on the at the state, as to law. con- an- ex- the in- al- it offense be in its dictment is not sufficient are plead fense, him for a similar passing counterfeit case tially whether more what shows with fendant is subserved. out ard of to such grounds feat the ends ing, was held that: coming fully within the sidered. which it would rule criminal does not framing able against him. dictment to as well element pecially quire ‘The after sion clearly alleged; but a formal and substantial statement In Ledbetter “The In Evans v. In apprised “In “While "An scienter; any further [26 however, the certainty sufficiently apprises defendant/ be all, ingredient certain, all of the eases as in very Cochran & particularity, restated former such indictment L. Ed. court S. as strictness upon where no proceedings must be entrapped into contain all certainty, and the accused shall be more have been the offense Ct. composed must the to shield the innocent. might accuracy words is borne charge the by the indictment but, further observes that: which but wherein 1135], court proceedings made rules acquittal exact expansion justice.’. where the statute sets requirement up offense, prepared words of the statute whether it contains in mind that the possibly Sayre useful impossible those he whereby nature of the of criminal it is said: the elements money to what extent he language against averment where a statute committed, with intended to it is sufficient, though defined in some other not tend L. it is just statutory defendant stand- impracticable ”. every ingredient wherein the making v. United States questioned, whether the record purpose to the defendant convict the court, ‘is are taken conviction.” have held that true test Carll, cited failed to aver him, accurately that he fully MYERS an indictment meet, necessary in matter, government prove,” been made description allegations of the of- accusation were con might 105 U. it with, object apprised substan charged, * * * but entitled but and. reason- the de- statute statute should, should guilty, crime, preci- U. every forth with- v. UNITED STATES add- acts B\(2€l) not de- es- re- S. S. it imperfection matter of vides the United must be this later decision. shall be fully ing older cases, and we insufficiency place, not been generally cited and considered by reason of States, 212 ficient. within which shows may be Court eases above ports, sary diction of the court.” allegation is ticular States, it would seem ment need not be .made more state the town as ing the offense. not necessarily follow within and most of the authorities assume that an ute show section the offense committed. * * * While in this upon day dictment standing allegation specifying particulars (53 (cid:127) state a “Section In New York arrest In think It is then held “Good ** completely have been statute, before the and as element the an indictment for a but it to view the particular township, prove are read with affected made material [citing it is sufficient.” day alleged, of upon that the 613), no statute greater particularity have strongly much * * day, as to the - But the and it is for the the omission judgment. eases of the offense. Where that the offense S. finding open covers the -prejudice motion be described crime is been month, cases]. state, 481-497, Central city, day the modifications stated well as Ordinarily, deemed less [Comp. Properly cited, rule above reason of undoubtedly requires said: fact limitations, authorities in allegations unless that these is “this done or other rigid not by country still holds after Revised Ledbetter United elsewhere fatal which Neither R. R. the can arrest cited was committed form St. the statute creat- within only statutory offense speaking, year, 'indictment, than S. was committed upon verdict which an indictment county, proof demurrer for Co. v. United from our municipality, it is usual to earlier cases complete Ct. stated, (cid:127) (cid:127) omission to Statutes will be suf- the 1691] the rule as defendant,. good that judgment have been formerly. statute of defect time Supreme obtained. words Notwith- a motion it to do required county, of indict- it does the it neces- might juris- lead- were shall pro- par- stat- 9S1 any day in- so, an. 2d FEDERAL REPORTER SERIES ac- rights of the [citing shield innocent and, unless cases]. the’ re- mat- the refusal also to be in mind that a defect in prejudiced borne cused were man- fatal, ter of while a defect in quire specific statement substance is a more committed, only there matter of form this includes the offense ner whieh —and stating does not manner fact —which can be reversal. Connors no prejudice accused, is im- Ct. tend S. 158 U. S. [15 Packing v. United material.” Co. 1033]; Armour 428, 52 L. again: requir- “An Ct. And States, 209 56-84 S. indictment is [28 only evidence, forth to set matters of Ed. 681].” upon certiorari to ultimate matters of fact.” The latter case circuit. Appeals for this In Horn v. United Circuit Court respecting quot 163, 170, C. C. A. after opinion below the rules ing quirements Statutes, 1025 of Revised stated section indictment were precision defend- for whieh construed the technical “This of course is not to be Supreme Court, ant here contends. The the indictment permitting omission from language just quoted repeated ap- affirming, substance; but it matter of and said: from Ledbetter v. United States plicable only complained defect objection was present “In no case is that some of the offense is stated element after verdict made to the indictment until loosely accuracy. Dun- without technical Had it judgment. motion in arrest bar v. United 156 U. [15 overruled, motion, 39 L. Ed. 390].” in error defendant, avail proceeds lay would not then down substan- ceedings, appeared that the unless it true test of an writ of er- rights prejudiced by tial of the accused were ror. It said: require a the refusal to more state- “The true test therefore not whether particular ment of the might possibly mode in which the of- have been made charged certain, fense committed. See Rev. Stat. more but whether it contains was. U. States, S. Connors v. United charged be element the offense intended to 408, 951, S. Ct. 39 L. Ed. sufficiently apprises S. the accused [15 what 1033], There no doubt that the ac- and, can be in case they prepared meet, must be cused was advised of and understood the proceedings them any other are taken precise alleged facts which were abe vio- similar offense, for a whether record lation statute.” they accuracy may shows with to what extent In Connors United supra, v. plead acquittal [citing conviction a or former following statement is added: (Italics ours.) It is seldom that an cases]. ground suppose “There is no whatever to precision is such drawn with that by surprise in was taken objection lodged the accused plausible may some not be progress trial, analysis he was in it doubt an overeritical precise as to what was the same, might offense with which that it improved be in charged.” particulars he was after trial.” Holmgren In v. 217 U. S. In McGrath v. United States C. A. 509-523, (54 S. Ct. 588, 861,19 Circuit) Second 275 F. 294, court Ann. 778), Cas. is said: dismissedan defect in the indictment in objection appear language “This does not to have Supreme Court Lamar specifically pointed been out demurrer, 241 U. S. 36 Ct. 535, advantage or otherwise taken 912: proceedingit urge trial. In this is too late to “It is moreover to be observed that there objections form, a matter slightest suggestion unless is not the that there was apparent knowledge that it affected the substantial is a want of the crime whieh was rights any surprise accused.” concerning the same, Brown v. there nor is 8th intimation re- Circuit) 61, 65, quest particulars for a C. C. A. was made bill con- Judge (now Justice) cerning charged. Mr. Van the details of the Devanter, stating general rule, said: this situation after Under we think that the is ease clearly “But it is to be borne mind that covered section 1025, what Revised Stat- required reasonable, is is or im- utes.” absolute practicable, particularity statement; In Weisman A.) else Judge Kenyon rules of criminal will be deflect- purpose, from their true whieh indictment shall insuffi- is to se- “No be deemed imperfection the conviction of cient reason of defect or guilty, cure well as (cid:127) *[12] mation it protect fendant is entitled to though with less and sometimes but to the defendant true that nized letters United and for peatedly fense sulting substantial court can be cure loose Rosen likely record 40 deemed shall tect prosecution of each case ord, well as the indictment pears, and, in that monly against a dicted Ct. apply the function of enable ease is parol evidence offense. ner form.” prejudice of by no quietus L. Ed. 709. “There was “Defendants In Tubbs United form same offense charge resort 434, in which a fact asked for and him The function that it element for a bill of for, C. A. him to v. United perennial. affect considered, provided has been States, challenge means is clear that executing against indicted defendant that occur, pointing out that the defendant prior former It parol subsequent prosecution 480, if more only, done against on may statement kind has wholly fails. a defendant. ignorance 357, 359, time grant appropriate cannot these stock follows of the crime has been 161 U. conviction or necessary, may evidence but the affected In the latter case that defendant a bill of great has been further conviction or States, partial identification of the to has particularity than a second refused, or if a seasonable of a bill of particulars [citing cases], had no substantial be resorted particular statement has prejudice, view, ever unable to successfully his defense and to resulted; Ed. apprehension lest or for S. upon application, supreme does not scheme this stated writ of to 161 U. S. opinion: particulars class prosecution. omission of 306, occurred, always admissible, what 606; objections time parol guilt clearly establish generally prosecution acquittal.” 16 is No acquittal. avail, of eases MYERS particulars error the rec apprehension very court has ‘intending in prove by the protection to to mailing, occur they it was said: tend to a matter Durland evidence S. Ct. relief; recognized be denied. judgment, artifice to prejudice 29, appellate or infor only protect the de- justice stated, detail's recog 59-61, in his 16 man- v. UNITED STATES same com- pro very they 508, ever put ap for F.(! de re so, S. v. to id) was sort to recogmtion court on by Judge tion, tection was to raise entitled particulars; ed 583: in an enable property jeopardy. will sumed volved. The court said: quired, ed describing ed.” States, 227 office there is no basis for plicable only all the detail Cas. out language tion, desired further caused to be defraud This, ^[13] grant apply In “Under The doctrine The rule “If, for instance, the description of the In Dunbar In United “It is States witMn the language appears: record to distinction, held obviate he could have secured It is it will he Tubbs United States indictment with such indictment, 59, him prepare ingredients of the offense a bill particulars.” a bill to some perhaps by such appeal. 15 S. for does against question by that when the indictment is of .the statute. Fed 44 v. Tubbs property U. S. of a defendant. throughout bill of charged A reasonable to Carland was argued precise is thus stated in Bartell v. otherwise attempting so description of such C. C. order, necessary States Claflin et rights of placed judicial discretion of the required federal Cas. Ct. support further particulars. finds abundant support necessity noticed, specification certain 427, him that and, so bill particulars that this A. to have violated the law.” if property No. 14,798, a is all (D. C.) clearly 33 practice such distinction. 357, it necessary Ms of particulars, demand for a bill of the indictment information, may or .demanded for S. classes amount is approved he defense, circuits. more Sattes, If defendant Ct. describe plea accused.” preliminary may be demand- substantially the (39 identify post privilege properly (another case) 94 F. 356,’ do, attaches with he had a 383, right proof fully if defendant, property demanding for detail there and further al., respect placed office,’etc. statement he should identifica- eases, but 57 property In detail to bill once inform- it as to outside United L. Ed. and it awas Unit- is re- states 390), right good Fed. this mo- had ap as- in to 2d FEDERAL REPORTER 15 SERIES 984 Packing Armour 209 States, for it is U. apply Co. v. duty particulars 681; La 56-84, 428, S. 28 52 L. Ed. S. Ct. recognized court. by this F.(2d) States, mar States, 843, 103, 112, 116, 2 241 U. S. In Fisher United 912; 535, Fourth 36 60 for the S. Ct. L. Ed. Hovermale Appeals the Circuit Court 586; (C. A.) F.(2d) 5 say: C. Circuit has this Sayre States, 157 U. Cochran & v. United S. “There that the is no doubt charges 286, 628, 704; 15 39 us S. Ct. Weisman the case before (C. A.) F.(2d) contend- v. United 1 defendants States C. the United States. The 60-62, 697; States, 143 with suffi- Brown v. United F. offense was not States, 214; Holmgren 74 objection, well C. A. v. United even C. cient definiteness. upon order 30 54 Ed. taken, fact that U. S. L. 509-523, is met Judge a 19 Ann. Ledbetter v. United Cas. District 606-614, details of States, out the S. 18 Ct. furnished which L. v. United States charge.” McGrath repeatedly A.) declared to the C. F. 294. This court equally Dismone v. United And same effect. In well established that the Kenyon 63, Judge testimony said: (C. A.) parol record and be resorted to objection protect against no prosecution, observed that “It to be information in kind that the was made defendant is restricted to in was no motion entry. the trial court. There dietment.and the Wharton’s demurrer, application 481; Bishop’s no no Pl. quash, Crim. Pr. Pro § Crim. challenge cedure, thereto particulars, no bill of Meyers way.” A. v. United States Sec- Circuit) F.(2d) 379, ond manner, And the Circuit in like Chew v. United Court Appeals (C. A.) F.(2d) Judge held Booth, that: speaking language: ‘in- used “It is sufficient describe “Finally, generally, toxicating liquor,’ ref can transaction foregoing by parol erence to indictment and identified to bar further thereon, attacks that reasonable act.” required. Brown v. was all that was In Bartell v. United (57 C. A. 33 S. 583), C. C. Ct. Justice Mr. 8); Horn Day F. 8). A. 163 And if the lan objection 105 C. C. C. A. “As to the guage of plead the indictment was such that the so indefinite that the accused could not was liable to record defendant felt be sur and conviction bar of another prised might be of prosecution, say the evidence which is sufficient in such duty fered, right apply right it was for cases it is the the accused to resort particulars. parol testimony subject-matter Rinker v. United bill of to show the 755-759, 8).” conviction, practice 151 F. 81 A. 379 C. A. C. C. of the former and such infrequently necessary” citing with See, also, Pane v. C. is not — 855; Claflin, A.) F.(2d) approval 2 25 Fed. Hovermale v. United United States v. Circuit) 14798; F.(2d) page 433, C. A. Fourth 5 Cas. No. v. United States Dunbar (C. A.) L. 586; States, 185, 15 325, 156 S. 39 Ed. Horowitz v. United States 10 Ct. 390; States, 59, 105 44 Tubbs v. United F. F.(2d) 286. C. C. A. 357. [14,15] long It has an been established rule See, also, practice States, Connors v. United 158 of criminal of the the courts Unit 951, 408-411, S. 15 39 L. U. S. Ct. Ed. an that indictment or information language Supreme charges Court in all the essential elements and 185, Dunbar United 156 ingredients statutory States, U. 15 good of a S. offense is as very S. 39 against general 325, 390, pertinent Ct. is demurrer, and therefore, aft unchallenged by to the issues under consideration: verdict, er de murrer, appropriate pleading, parol testimony might or other “It and, is true some challenged, identity prej required if so even unless substantial to show of the the absolute smuggled proof resulted. goods, req- United States v. but such is often udice Tubbs 356; (D. plea jeopardy. 94 C.) States, F. uisite to sustain a of once Connors v. objection 408-411, 951, 15 an 158 U. S. S. Ct. 39 L. no valid indictment that Ed. is States, property respect 1033; description Dunbar v. United 156 U. S. charged 325, 390; 39 L. offense is to have been com- 185-192, 15 S. Ct. Ed. which the New enough more States, R. R. Co. United mitted is broad to include than York Central * * * objection one article. No 613; S. v. UNITED MYERS STATES dis- judicial rights A sufficiencyof indictments of the accused.” was made to the any discretion; and abuse means by demurrer, cretion sound quash, motion Cer- subject review. verdict. discretion is manner until after While such waiting tainly States, until of the United defendant courts be true that a that objection down, a multitude Supreme Court does not waive the that time language omit- employed empty not decisions, crime is have some element only the enjoining upon defendants, which in not yet objections waive all ted, does he par- duty, ele- for bills apply various right, form in which the run to mere indicated, fact ticulars, or to the such are stated, ments crime are inartificially drawn. such penalizing exercise that them failure prop- discharge fur- description right duty. See instance, and to such If, for clearly identify point, as to en- erty ther, Rosen v. does not so defense, his he prepare 434, 480, him to 161 U. S. able Ct. motion preliminary F. Kettenbach v. question raise the par- demand for a bill A. Moens v. United perhaps C. C. 317-318; as- App. ticulars; properly D. C. otherwise it inform- App. him he is D. against sumed that Arnstein respect 946-949; (D. to which 296 precise property United States v. Pierce ed of F. C.) violated law.” F. 878-890. to have he Flack illuminating that of [16,17] foregoing A ease is From the review of the very Eighth following Cir- principles logically et al. v. United Judge opinion by Hook. cuit) be deduced. An must contain speaks every ingredient laid essential element and indictments part that Washington county, in com offense and each element should venue in Terri- formerly pre Indian pletely to enable defendant to Oklahoma that stated pare Nowata tory. protect indicated a sale in and to him from his defense sub evidence urged. Judge county sequent prosecution. variance was If the indictment allege Hook said: information fails matter sub good would stance, ingredient indictments “The have material crime, fatally against general If, however, demurrer had it is the name defective. it fails been omitted. The variance that oc- to advise the jurisdiction curred did affect the -of the not matters enable court; pertain safeguard him to did not venue. It is defense and to prosecution conceivable such him from further variance could have trial, surprise act, caused be supplied at the there- details a bill of could possibly integrity fore affected presentation affecting have defense, prosecution. duty de case, but whether it did or.not In such ** depend upon would circumstances. volves a defendant to make seasonable application appear appropriate It does informa not mis- and for the accused were led, contention The test whether the indict effect tion desired. Prejudice good general demurrer. made. ment from such variance does (D. C.) an necessarily law. United States Tubbs F. arise inference placed 360. An indictment danger The accused were of a which states es ingredient for the sential same offense. The in which ease can stated, indictments are of what see sole evidence the good tried; to, the record can be and suffi resorted and demurrer, necessary.” oral if cient after in evidence, verdict absence of seasonable argument federal provides is demand attack. The Constitution The advanced that for particulars safeguards for a affords or no certain accused of bill those crime. little protection provisions jealously guarded for reason should be the that cases be These protection found courts when in granting wherein it is stated that the their the is or refusing do, such bill will for a de however, a rests in the dis- voked. It not cretion of and a suffi predi- the court fendant remain silent when case wherein error to general upon against cated refusal demurrer is indulg- such has been cient stated not against Supreme ed. in him. Neither the Court, Bartell Constitution nor the The says generally imposes upon a supra, that that burden the defendant the law government. upon practice right “a It him to apply federal has to for incumbent sharply to the attention of court particulars,” bring such bill of “with- the and that it is judicial incompleteness of form grant discretion the court to the matters necessary complains. such if order, protection of which he the 15 FEDERAL REPORTER 2d SERIES preparing his defense the essential if the his future are ceive argument resort though permissible. concerning crime to come details as will ticulars be resulted; in such ignored, This provided, record it are less the thereafter subsequent tantamount evidence, examined to sonably which are the criminal law in this taken the court should order dictment must ply overruled, force lenged by special an his dice the innocent. Defects sound, to do though a special though side, plaintiff [18,19] is on details asked These within the safeguards law defense protection. account for the argument necessary. a criminal and to such sources employed so, grant another because it is reference to sell appears general terms, rules otherwise, entitled defendant placed upon might convict or, resort to the record as prosecution, requested particularity prayed facts of adequately challenged; protection determine whether error thereto. ingredients frequently necessary, must be be reversed the discretion argument plaintiff The fundamental error in upon error, provided only, appropriate enable jurisdiction it would old which states an thrown about the accused is unsound. street, prosecution. case have been more If a the record as a demurrer or other matter, that no to as ruled supply of conviction complains as on one practice protect be has resulted. value to and in which bill of only in eases otherwise does not as much guilty the administration If what provided same the supplied; country, are, sale must much is made seem, record protection that has error is that the nature of which in safeguarding his furnish if from society, refused, the record will be whom the sale was made and street of a relief. But even exereised is not It is as himself the information it has been sea difficult to con and be.so dealt with appellate interposed the accused respect, must be It is true that ant has been denied the constitutional point earmarks and prejudice such a bill is and to crime itself. plane specifie both streets will court; made suffi- of much procedure, be protection if the whole be shown record to ascertain whether neverthe- could be object to shield in error as on their much denied, details preju- an as are outset where this is not parol court chal- even fails even tion par- can sup- well and not has in are in on ord to as nishes all information essential charge filed, he was charges. mony, this sary. prosecution, and he was not nesses. tion itself affidavits and and circumstances of surprise They it would bill because in special the sulted, such tion though indirectly only challenged. murrer and after ant closed, complete described, quashed. ciently special So, equally, the District Coming preparing crime, sought thus parol jurisdictional so, part complete particularity instant no demand for a bill of which is It particulars; charged, supply demurrer is appears the which marked, demurrej;, complete protection against Nebraska, but in the fifth nor one accused was taken Furthermore, preserved, may be the sold stated, such may may offense, sales were the absence to As on certain evidence of the record information was whether, then more judgment only prejudice integral part demurrer, whom the was not Omaha place case, intoxicating particulars he is matters protection against the information Court; duty nor from subsequent affidavits done, informed as defendant did which and within good against verdict, affidavits, interposed, neither did it refuse that he was embarrassed entitled. defense appear set out in made, where constructively solicited, the offenses with which on its the have business of the defend asked.' Where such specifically to will not be testimony not, substance, count of the informa if at there is we have resort day is the that, not be proper; anything the was overruled. be record,, liquor, it was as shown if be that the testi referred as by surprise, prejudice at part, added, defendant prosecution; accompanied by all, if furnished; was sold. which an essential of to Omaha, our to the nature used, true, desired, that no pretense, particulars; meet record, jurisdiction of the wit future interpose and made. to ordered no but it fur transcript, transcript. seasonably sufficiently exact in' person disturbed. judgment a second if neces the same overrule plaintiff because the rec- states a defend- protec- neither condi- in to the is dis- those these were facts pro- even spot but, Not one, out He de- to entire ord which holds respectfully viction should the were, rer have been set out in some ness in tention teetion joy the tution criminal thority supports sisted ror, meet learned and exhaustive vides: “Nor shall Such dictment the nature nounced. formed proper refinement should th gression pleader Fifth or absence failure down on The The defendant or meet certain tests. These in defense life unquestioned guilt. The facts avail BOOTH, We an 1. The In order “It must to the information same offense to be defense, affidavits amply supports and identifies the F. with looseness give crime, the information record, examination Amendment by is much a do 337, 341, him must fulfill certain pleading which has led judgment accordingly is affirmed. cases, e right claims I shall so himself this court prosecutions, itself the United course, known, limb.” parol testimony in ease of justice. as him and cause emphatic the nature of material Sixth Amendment not, however, approve distinctly that the courts have of another and so dissent from that are: district Circuit accompanying the information however, discussion, be sustained. a fair in pleading particularly overwhelming weight * * * constitute briefly charges forth 66 C. A. clearly guilty clearly to the a conviction overruling disapproval. discharge protection as to advise the accused Judge (dissenting). opportunity attorneys, Miller the information and cause be witnesses. twice judgment, and the accused person accused we ' quite the facts which or indictment a crime indulged to indictment, may and could as well majority opinion that the feel that provides: accusation.” The Constitution should, put my uniformly held to the Consti- which, v. MYERS portion meet, of defendants of the demur- tests, reversible requirements as is informed must reasons. thereunder. subject enable The record set the loose- court, up- Upon the jeopardy shall' en- the con- acquittal so the rec- for the bined authorities “be in work so charge. berg as laid “In all of result, out itself. trans- death able to strict accusation,” does, fully course, pro- per- con- filed him F.(2d) au- UNITED er- be I Lynch v. support offense with which sistently fense, coming‘under fails such statement fullness and law, tion of gard A.)C. States to enable innocent tinctness and This Fontana v. United al fullness and Miller v. as will identify son, requirement pleading. ment: other offenses the accusation should so descend into “Such and become as dure (N. part requirement In 31 C. J. 712 the distinguished The tests This Bishop general provision way identity S.) other circumstances v. STATES holding, my opinion, to double (2d Ed.) Armour elements innocence, inform (C. A.)C. averments as to United States 1, 15, 82 only of necessary.” met “The majority opinion seems to determine whether charged may recognize requirement facts recognized by this court. Gold if it other man conviction.” earmarks description of he so 'specific’ particularity particularity thus laid down accused particularity, rule derivable from Fontana Packing Co. v. United his work the accused of the jeopardy. averments there merely sets forth going or information will of similar is based circumstances— the tests the Fifth must be from its 526, recognizes charged. C.C. fundamental and therefore F. prepare 286; Weisman United facts and circumstances F.(2d) 696; Carpenter stated are _ C. (C. A.) requirement their requirements as to A. make which the time, plaee, person, enjoy supra; general transaction A.) distinguished the elements of the above C. United States accompanied Amendment supra. 31 C. J. as are also character. The constitution- time, offense charged, for trial. The Criminal give reasons, have been will enable an not, up A.) gives the benefit of something in requires F.(2d) 314; in criminal set out. sufficient to Naftzger description, 277 F. the offense. the defend- specific place, clearly all mean particular under character, presump- hold that is stated: 650, 663; L. R. A. the. requisite effect to be held require- are, is that States, Proce- detail, toas com- con per- dis- 8); of- 2d FEDERAL REPORTER SERIES 15 an or in- indictment fair to be The contention ant full and what is notice formation, identify partic- which does not him. The limit it need duced safe offense, the accused expanded impose so minute ular will afford not he or in ’unnecessary opportunity to use the thereon prosecution, or burdens the same justice.” prosecution another defeat the ends of defense otherwise crime, attempted is to be answered in the requirement commonly The has been rec ognized majority opinion by saying that whole eourts, in both federal and state to, to show indictments or be resorted order informations have held record identity suppose of the offense. But bad for failure meet it. United States v. Cruikshank, testimony, no 542, 558, 92 U. there is record of either be- L. Ed. because, 588; Simmons, pleaded guilty, United States v. cause the accused or U. S. 819; happens in numberless no record United States v. 483, 487, Hess, 124 testimony is on the trial. Fur- 516; v. thermore, Fontana or States, sufficiency United su of an indictment pra; Carpenter States, v. supra; determined, information is not after Lynch States, v. United supra; hap- v. State over and in the trial view of what 363, 364, 117 Me. Crouse, 525; 104 A. State pened, but before the trial commences and Allgor, Law, 78 N. 313, 314, 76; J. A. happen. what in view Hatfield, Law, 124, State v. 87 N. majority opinion J. 93 A. The hold seems to Villa, State v. Vt. indefiniteness, A. 935. existed, the defect if one impractical No of particularity standard information, was remedied an affida- up by requirements. these every case vit filed with the information. I cannot returned, where an indictment or an in agree with this The no view. affidavit was filed, prosecution formation pos is in part of the information. not made time, per session certain faets place, attorney district or one in his office. son, or identify circumstances which the par The put- would not be limited charged, ticular offense and these earmarks ting in its evidence to the sales mentioned distinguish it from all other offenses simi the affidavit. Furthermore there would be lar nature. Coneededly this was so in the no allegations variance between of the in- bar. case at formation the proof, if evidence sales majority opinion seems that other than to hold those stated in the affidavit was requirements may with, these dispensed introduced. because large I shall undertake review .the asking obtained accused majority opin bill number of cases cited in the particulars. apotheosis Laying of the bill involving ion. aside eases indict particulars does not seem to me meet the sending through ments for obscene matter situation. If the or indictment mail, States, information the such as Tubbs v. United is insufficient, because it does not fulfill the F. 44 C. C. A. A. m8), C. tests, a required particulars applies, bill will not a rule examination good. make it of a par- function bill of disclose, in others will I think case accused, ticulars to aid the when the question where was in indefiniteness or dictment good, information is not to bol- volved and the indictment infor ster aup bad information. either that the in mation was held sufficient, May States, 53,117 v. United 199 P. C. information, C. A. notwithstanding dictment 8); C. A. Ploren v. United particular .did earmark, omission 186 P. 8); C. C. C. A. opinion earmarks whieh contain Bayaud C.) 16 P. identify of the court were sufficient Poster 481,165 253 P. offense, question of in that the A. 193; Collins United 253 P. sufficiency for indefiniteness was not raised 165 C. A. Furthermore, granting 637. bar, verdict. In the ease at until after how of a particulars largely bill of ever, majority discretion- opinion as I understand ary with the trial court. But the it, accused has information does concedes right tried, all, constitutional identify a par contain earmarks sufficient to information or under valid indictment. No and also concedes ticular discretionary order aof trial sufficiency properly court can take question Of right. this constitutional Final- timely raised. ly, in majority ease of opinion invalid indef- makes no men- initeness, say can who the crime par- Lynch the case tion specified ticularly supra, in. case decided this court and grand the identical crime precise question which the now under dis- jury volving had majority bringing case at Yet mind indictment. cussion in the bar.’ UNITED STATES MYERS of pint Lynch possession had Case the defendant the overrules apparently opinion had not have whisky. The could indict- defendant Lynch the Case the silentio. In sub oc- that when occasion possession on that read follows: ment identification, ei- of capable not or about the casion wit, to was heretofore, on '“That persons, circumstances, surrounding Pawhuska, in ther December, 1922, at of day 7th given have earmarks, the which would of or other district county, the Western Osage in on which the jurisdic- the notice of occasion the defendant Oklahoma, and within of of- the prove attempt more the Lynch, prosecutor whose would Hr of this tion knew when latter charged. And the grand to the fense true, correct name full, that occa- what drawn being, did the indictment was jurors then and there unknown, "sur- was, time, place, circumstances willfully, and the knowingly, sion then and there identifying the persons present, in- rounding it, certain possession his feloniously have in Nevertheless of occasion. (1) of earmarks pint one toxicating liquors, wit, given subject country, wit, on this only information upon Indian whisky, in and had that he was by the indictment defendant Osage county, Oklahoma.” at some possession time (count whisky his at the information in bar In case filing of the years to the prior within three 1) as follows: read city Paw- in of Kinsler, place attor- at some “James C. * * had set forth gives court to understand the United ney huska. If n identifying Myers, B. Preston this indictment be informed in wit, day heretofore, time, or the 13th or occasion place on about facts Omaha, city attempt possession in the December, prove would street, Kihika Douglas Division on whisky, in Omaha as that was Nebraska, and there be- Pawhuska, then street, the District near Main in about the willfully, unlawfully, block, automobile, and there ing, did then in an middle of the intoxicating liq-. knowingly George Blaine, presence Hubbard, sell certain T. A. wit, pint alcohol, one fit uor, about Strong, Mr. other distinctive ear- obtaining a beverage purposes, time, without first place, occasion, marks of Internal permit from Commissioner might been sustained. well have so to do.” would have Such information enabled .Revenue counts, fifth, are except investigate charge, other The learn defendant to similar. present who were who were fairly two do not think the cases can occasion; witnesses, I possible hence who were distinguished each in- other. Both investigate pre- entire matter and to the matter indefiniteness in volved pare charge. his But there defense to information; lack dictment nothing of this kind in this indictment. was clearly identify might earmarks the defendant have been Under question testimony 'offense. In cases the both to meet that at time called within, one trial, quash, raised before motion to night years filing three day or other In both any place demurrer. indictment, at objections cases the Pawhuska, pint were overruled. In both possession of this had omitted, might earmark which Whisky. have made the indictment or information def- subsequent prosecution “Were a brought inite, place. was the item In both eases same judgment for the offense a of convic- might there lack other acquittal earmarks tion under this indictment would unimportant. have the item of place identity avail the nothing. particulars might both cases a bill have of offenses conjec- be a would matter for, been asked but was not. ture. indictment and in this Lynch In the Case the court subsequent case offered trial for the Osage “Pawhuska, county, Okl., is many fit would different occa- city; an inconsiderable covers a con- There nothing sions. would be show area, many many siderable residences, offenses were identical. We are places business, many many stores, places, quash satisfied the motion to the indictment might have possession where one of a sustained, have should and that the fail- pint whisky. gave The indictment de- ure to do prejudicial was serious and er- place fendant no what at ror.” city, residence, whether in some Lynch my judgment Case store, street, or some in some restaurant or overruled, either silentio or sub all. hotel, place city, or in in that stressing It rules ease at bar. I am not prove States would endeavor so far as it re- 15 FEDERAL 2d REPORTER SERIES haver, Judge. case should be reversed. Northern determine whether 3. Wills sonnel. tablish parallel conflicting opinions of the 10213; “must,” ble involved sential conditions control, at bar. constituted they of cordance 2. Wills reached in the ficient to sufficient to tion, but whether the statement was sufficient not whether hold that the tion when other fense in Case as an earmark to identify tablishing jurisdiction. lates Lynch Case; ease at bar 1. Courts (C. A.) F.(2d) [Ed. Note. —For (Circuit no law to “may.” jurisdiction, For the foregoing reasons, I think the In Where 3. It is to Right this The ease of parties, Phrases, BERG are court based diversity exists, te Error to will therefore, though court, yet <§=>267. <§=222. verme, the absence It seems me to be unwise to es- with be made being directly opposed to contest <§=>317. show District diversity contest, Court solely show that the court had et still First November stating naming be noted real in section majority the Western Division the District Court Carpenter but al. , action parties view of Gen. venue for nor court imposed by must Carpenter upon earmarks are parties alive, as an earmark of No. heirs there very no one interest I. was it so stressed in will is Appeals, MERCHANT action will of a city or town is suf- citizenship am notwithstanding is in federal court. in those cases, though that, Ohio; will be a mere 9, 1926.) at Second definitions, see is sitting in the cas'e other earmarks. similar character. opinion, Here the name of a distinguished, also held- law stressing Case were decided the purpose of es- of the statutory, to the conclusion though state statute v. United States being construable D. Sixth Circuit. decided controversy, change Code requiring aligned Series, particular of- diversity, and, lacking. is sole C. Westen- judges indispensa- question et identifica- dismissed. it in Ohio,' jurisdic- question and es- of per- al. Must.] ground section Words Lynch in ac Unit- heirs must who this The bring error. Affirmed. §§ ground verse fendants their if the the Ohio verse will, cile second. ión is interest tion; second, that ber the first in error. are residents and heirs will, legatees, next are Burr shows two jurisdiction ants Burr tor, are MOORMAN, Young Mouser, Ohio, The executors and some Guthery, error, Ohio, brought for olsky, Friedman & Wall oney, Marion, Harry Lucas, all Harold DONAHUE, Circuit Before John plaintiffs Action I. J. next death, legatees. plaintiffs Where grounds: trial the interest of “each of filed to the interest Raiehley Raiehley, & will appears riot adverse to to the to which action that a number of the who are nonresidents the defendants, petition J. Merchant and & them Effler, W. Ringolsky, of residents of H. statutes of ground, but sustained it would inherit with resident of and all of at law of were set of Kansas was a resident state of by May interest jurisdiction, diversity ldn and heirs at DENISON, DONAHUE, Bartram, J. Fraser, have, interest in error. Circuit an action from the were“made them cause, Marion, overruled the demurrer deceased, First, that the the state Toledo, Ohio, on the received plaintiffs, aside, subject-matter Ohio, Ohio Berg Boatright and Johnson subject-matter Burr descent and distribution sustained, of controversy City, kin, the interest Judges. Kansas to this who are citizenship petition petition to contest the will Ohio, Toledo, of the other defend- Judge. Guthery, others. aforesaid, as H. parties and another and for that reason who, Raiehley, having executors, devisees, parties of Marion of Ohio, Mo., nothing executors law of the Eymon, defendants, plaintiffs parties and equally of the state one of heirs Fraser, at the time City, Mo., and petition upon and eoqrt of Ohio, Wm. Ohio next of kin Plaintiffs identical on its face A their is identical defendants. of said defendants of this interest of this ac- Strelitz under the deceased, at and that demurrer plaintiffs .the sole Mouser, will P. Mal- county, had them.” law brief); or ad- (Ring- domi- testa- Hiett, num- who ad- de- ac- no of, & & rehearing, opinion application *For —. see 17

Case Details

Case Name: Myers v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 15, 1926

Citation: 15 F.2d 977

Docket Number: 7098

Court Abbreviation: 8th Cir.