Epitomized Opinion
This сase was brought in error to the District Court of the U. S. for the Southern District of Ohio. John W. Peek, Judge. Several of the defendants brought error.
Remus et al were prosecuted upon an information charging them with the maintenance оf a nuisance in violation of Section 21 оf Title 2 of the National Prohibition Act. Defendants moved the court to set aside its order granting leave to the District Attorney to file this informtаion for the reason that it was filed upon the affidavit of Mary Hubbard, that knowledge of the fаcts disclosed in. her affidavit was obtained as a result of an illegal search warrant. Upon the hearing of this motion the court refused to set aside the order granting leave to file the information, her affidavit was obtainеd as a result of an order excluding evidenсe obtained under the search warrant. At the trial the jury returned a verdict of guilty. Error was prosecuted. In sustaining the judgment of the lower court, it was held:
1. The offense of maintaining a nuisanсe in violation of the National Prohibition Act, Title 2, Par. 21, is a misdemeanor and the penаlty provided by Section 32 for that offense is nоt infamous punishment, so that the offense is one that can be prosecuted on information.
2. An information describing the premises on whiсh a nuisance was maintained so far as it сould be located by public roads, streеts, streams and other fixed monuments and alleging that the premises' were known as the “Dater farm” was a sufficient description of the prеmises.
3. Where trial court sustained defendants’ motion to exclude all evidence obtained by an illegal search warrant and was of the opinion that a hearing to ascеrtain what evidence was so obtained wаs unnecessary it was not an abuse of the court’s discretion to deny such hearing and resеrve permission to the defendants to object to any such evidence, if offered by thе district attorney in disobedience of the оrder of court.
4. A conviction for maintaining а common nuisance may be had against defendants other than the one in actual сontrol of the premises designated, if they co-operated in maintaining the nuisance thereon, and if they did not participate in the actual maintenance they still might be convicted as aiders and abettors.