Yaffee v. United States

DONAHUE, Circuit Judge (after stating the facts as above), [1] The first motion to dismiss was properly overruled by the District Court for the reason that the offense charged in the information is not a capital or infamous crime, hut is merely a misdemeanor for which, under the provisions of Amendment S of the federal Constitution, the accused may be prosecuted other than upon presentment or indictment by a grand jury. Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; U. S. v. Lindsay-Wells Co. (D. C.) 186 Fed. 248; U. S. v. Quaritius (D. C.) 267 Fed. 227; U. S. v. Achen (D. C.) 267 Fed. 595; U. S. v. Baugh (C. C.) 1 Fed. 784-787. [2] There is no averment in the second motion to dismiss the information that the grand jury was in session at the time the information was filed. However, it does appear, if that fact is important, that this information was filed on the 2d day of October, 1920, and that the grand jury was not impaneled until October 5th of that year. State v. Anderson, 252 Mo. 83, 158 S. W. 817. 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. [3] Where it appears to the court by the affidavit filed therewith by the district attorney that probable cause exists for the filing of such information, the court in its discretion may grant such leave, and its order cannot be reversed except for an abuse of discretion. This motion presents no question of abuse of discretion, but, on the contrary, it is based upon the theory that the court, upon the state of facts then existing, had no authority to exercise any discretion, and that the filing of this information was without authority of law and contrary to law. [500] In the prosecution of an offense other than an infamous crime, the accused has no constitutional right to object to a prosecution by information instead of by indictment. The order of the commissioner discharging the accused or the failure of the grand jury to indict would not prevent the district attorney from filing an information charging the same offense charged in the complaint before the commissioner and investigated by. the grand jury. The defendant of course, cannot twice be put in jeopardy for the same offense, but the defendant is fully protected in that right even though a grand jury should return an indictment against him for the same offense before or after the trial upon the information. Therefore the filing of an information at any time in the course of a criminal prosecution, either while a hearing upon a complaint, charging the same offense is pending before' the commissioner or after such hearing and before indictment by. the grand jury or after a demurrer has been sustained to an indictment by the grand jury, cannot possibly prejudice the rights of the accused to a fair, speedy, and impartial trial. U. S. v. Achen, supra; Evans v. State, supra; State v. Cole, supra; U. S. v. Quaritius, supra. For the reasons above stated, the overruling of the second motion to dismiss the information must be affirmed. [4] It is now insisted, however, that the affidavit filed in support of the information and for the purpose of obtaining leave to file the same was verified before a notary public, and that under the laws of the United States a notary public has no authority to administer any oaths in connection with criminal prosecution. 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. [5] W. J. Meininger, who subscribed and swore to the affidavit filed with the information in this case, was also called by the government as a witness in this case. It is claimed on behalf of the plaintiff in error that it appears from the oral evidence of this witness that he had no actual personal knowledge as to the truth of the matters and things set forth in the information, and that therefore the statement in the affidavit that he had such knowledge was false, and for that reason the court ought not to have permitted the filing of the information. This objection, even if it were a valid one, like the objection to the official capacity of the officer taking the affidavit, comes too late. The affidavit as filed met every requirement of the law, and the court had authority upon the statements contained in that affidavit to grant leave to file the information. If in the course of the trial it appeared from the evidence of the same witness that he had no personal knowledge of the facts at the time he made and subscribed to this [501] affidavit, then it was the duty of the defendant to call this to the attention of the court and m«e the court to revoke the leave granted to file the information and dismiss the prosecution. 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. [6] The plaintiff in error also asks a reversal of this conviction and sentence for error of the court in .admitting in evidence the bottle and contents which the evidence tends to prove was purchased by Richter from the plaintiff in error, or rather from his barkeeper, Wesley Kellum, for the reason that the bottle at that time had a label pasted thereon which contained certain statements written by the witness for the purpose of identification. The record upon this question is as follows: “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. [7] The objection to evidence tending to prove that the sale of intoxicating liquor to Richter was actually made by Wesley Kellum, because the information charges that the sale was made by the defendant George Yaffee, is without merit. There is evidence in this record tending to prove that Kellum was the bartender for Yaffee, that Yaffee not only had full knowledge that the sale was made, but [502] that he procured' and delivered the whisky to Kellum to make this sale. It would seem unnecessary to say that, if the jury believed this evidence, then it follows that the authorized acts of Yaffee’s agent or bartender were the acts of his principal. Even if Yaffee were not the principal, but merely aided and abetted Kellum in the commission of the crime charged, this evidence would be competent as tending to prove defendant guilty of t'he unlawful sale of intoxicating liquors in manner and form as charged in the information. [0] Exceptions to the charge of a court must be specific. Gardner v. U. S., 230 Fed. 575, 144 C. C. A. 629. A general exception will not be considered by the court except where there is manifest error in the charge upon a question, vital to defendant. Tucker v. U. S., 224, Fed. 833-841, 140 C. C. A. 279. The case presented does not require the exercise of this extraordinary authority. For the reasons stated, the judgment of the District Court is affirmed.