276 F. 497 | 6th Cir. | 1921
(after stating the facts as above),
The fact that defendant was arrested on a complaint before the information was filed is no ground for dismissing the information. Evans v. State, 36 Tex. Cr. R. 32, 35 S. W. 169. Nor, in the absence of a statute to the contrary, is the right to file an information affected by the fact that the grand jury is in session. State v. Cole, 38 La. Ann. 843.
The right of the district attorney to file an information is not an absolute or unqualified right. Before doing so he must secure leave of the court.
For the reasons above stated, the overruling of the second motion to dismiss the information must be affirmed.
Neither of the motions presented by the defendant to dismiss this information raised this objection to the affidavit, nor does it appear that any objection was made by the accused to tire verification of this affidavit before verdict or sentence.
This identical question was answered by this court in the case of Simpson v. U. S., 241 Fed. 841, 154 C. C. A. 543, and it is wholly unnecessary to repeat here the reasons stated by Knappen, Circuit Judge, speaking for the court, for the conclusions reached in that case upon this question.
Such a motion would have secured a finding by the court whether there was in fact any substantial conflict between the oral evidence of the witness and the statements contained in his affidavit, and an order and ruling based upon that finding. This the defendant did not do. Therefore this record presents no order or ruling of the trial court: upon this question subject to review and reversal in this case.
“Mr. Dickerson: I wisli to introduce the bottle and contents in evidence
“Mr. Hess: Object.
“The Court: Overruled.
“Mr. Hess: Exception.”
An objection and exception must be sufficiently definite to inform the court of the precise thing to which the objection relates and the precise ruling complained of. U. S. v. Fidelity Co., 236 U. S. 512, 529, 35 Sup. Ct. 298, 59 L. Ed. 696.
A litigant cannot be permitted to trifle with a court and thereby secure a new trial upon questions not fully and fairly presented by the objection and exception. The objection in this case was a general objection to the admission of the bottle and contents in evidence. There was nothing in the objection to suggest to the court that the objection was based upon the label attached to the bottle. If the court’s attention had been directed to this label, it would probably have ordered that it be removed before the bottle and contents were, admitted in evidence, and, if it had failed to do so, then the question would have been fairly presented to the trial court, and a ruling obtained thereon, the correctness of which ruling could be determined by a reviewing court. Evidence bad been offered tending to prove that this bottle and its contents were purchased from the defendant through his bartender Kellum; that the contents of this bottle was 45 per cent, alcohol or 90 proof whisky. The objection was directed solely to the admission of this bottle and contents, and not to the label on the bottle, and therefore was properly overruled.
For the reasons stated, the judgment of the District Court is affirmed.