United States v. Illig

Citation288 F. 939
Decision Date01 January 1920
Docket Number425.
PartiesUNITED STATES v. ILLIG.
CourtU.S. District Court — Western District of Pennsylvania

Walter Lyon, U.S. Atty., of Pittsburgh, Pa.

S. Y Rossiter, of Erie, Pa., for defendant.

THOMSON District Judge.

We have before us for consideration a motion to quash an information made by the United States attorney, charging the defendant with violation of the Volstead Act (41 Stat. 305), in nine separate counts. The information was drawn at a time in the early enforcement of the Volstead Act, when, in an earnest effort to enforce the Eighteenth Amendment, other constitutional amendments and legal principles of basic importance seemed to have been overlooked. In order to intelligently pass upon the motion to quash, it is necessary to consider certain fundamental propositions, which, when applied to the information, must determine its validity. The first reason assigned in support of the motion to quash is that the procedure by information is unlawful and a deprivation of the defendant's constitutional rights.

Under the Fifth Amendment to the Constitution of the United States no person can be held to answer for a capital or other infamous crime unless on a presentment or indictment of the grand jury. This provision is very specific, the only uncertainty arising as to the meaning of the words 'infamous crime.' These words the Supreme Court has interpreted. In United States v. Wilson, 114 U.S 417, at page 425, 5 Sup.Ct. 935, at page 939 (29 L.Ed. 89) the court says:

'For the reasons above stated, having regard to the object and the terms of the first provision of the Fifth Amendment, as well as the history of its proposal and adoption, and to early understanding and practice under it, this court is of opinion that the competency of the defendant, if convicted, to be a witness in another case, is not the true test; and that no person can be held to answer, without presentment or indictment by a grand jury, for any crime for which an infamous punishment may be imposed by the court. The question is whether the crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. When the accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.'

The court further held that a crime may be infamous which has not been so declared by Congress, and that imprisonment for a term of years at hard labor is an infamous punishment within the meaning of the Fifth Amendment to the Constitution. In that case, the court went no further than the necessities of the decision required; but in Mackin v. United States, 117 U.S. 348, 6 Sup.Ct. 777, 29 L.Ed. 909, it was distinctly held that a crime punishable by imprisonment in the state prison or penitentiary is an infamous crime, and the defendant cannot be held to answer in the courts of the United States for such crime otherwise than on a presentment or indictment of a grand jury. In Ex parte Wilson, supra, the court said:

'The purpose of the amendment was to limit the powers of the Legislature, as well a the prosecuting officers, of the United States. * * *
'The Constitution protecting every one from being prosecuted, without the intervention of a grand jury, for any crime which is subject by law to an infamous punishment, no declaration of Congress is needed to secure, or competent to defeat, the constitutional safeguard.'

The acts of Congress not only have not prohibited the use of informations, but have authorized their use in certain cases under section 1022 of the Revised Statutes (Comp. St. Sec. 1686).

In Re Bonner, 151 U.S. 242, 257, 14 Sup.Ct. 323, 326 (38 L.Ed. 149), the Supreme Court held:

'If the offense be a felony, the accusation in the federal court must be made by a grand jury summoned to investigate the charge of the public prosecutor against the accused. Such indictment can only be found by a specified number of the grand jury. If not found by that number, the court cannot proceed at all. If the offense be only a misdemeanor, not punishable by imprisonment in the penitentiary (Mackin v. U.S., 117 U.S. 348), the accusation may be made by indictment of the grand jury or by information of the public prosecutor.'

Following this came the Criminal Code of 1909, section 335 (Comp. St. Sec. 10509) of which provides that all offenses punishable by imprisonment for a term exceeding one year shall be deemed felonies, and all other offenses, misdemeanors. Therefore, as the law stands, all offenses which may be punished by imprisonment exceeding one year must be prosecuted by indictment or presentment by a grand jury. Misdemeanors may be prosecuted by presentment, indictment, or information.

As none of the counts in this information charge an offense for which an imprisonment exceeding one year could be imposed, the prosecution by information is not illegal.

The defendant alleges in the second place, in substance, that the information is defective by reason of generality, failing to specify particularly the acts constituting the alleged violations, and is merely a statement of legal conclusions. This requires a more careful consideration.

Under the Sixth Amendment to the Constitution, it is a fundamental requisite in a criminal prosecution that the accused shall 'be informed of the nature and cause of the accusation. ' This not only in order that he may be enabled to properly prepare his defense, but also that the crime may be so definitely defined that the accused may thereafter be protected from prosecution on the same charge by plea of former acquittal or conviction. In Evans v. United States, 153 U.S. 587, 14 Sup.Ct. 936, 38 L.Ed. 830, in considering the sufficiency of an indictment, the court said:

'A rule of criminal pleading, which at one time obtained in some of the circuits, and perhaps received a qualified sanction from this court in United States v. Mills, 7 Pet. 138, that an indictment for a statutory misdemeanor is sufficient, if the offense be charged in the words of the statute, must, under more recent decisions, be limited to cases where the words of the statute themselves, as was said by this court in United States v. Carll, 105 U.S. 611, 612, 'fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.' The crime must be charged with precision and certainty, and every ingredient of which it is composed must be accurately and clearly alleged. United States v. Cook, 17 Wall. 168, 174; United States v. Cruikshank, 92 U.S. 542, 558. ' The fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the Legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent.' United States v. Carll, 105 U.S. 611.
'Even in the cases of misdemeanors, the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged, not only that the former may know what he is called upon to meet, but that, upon a plea of former acquittal or conviction, the record may show with accuracy the exact offense to which the plea relates. United States v. Simmons, 96 U.S. 360; United States v. Hess, 124 U.S. 483; Pettibone v. United States, 148 U.S. 197; In re Greene, 52 F. 104.'

United States v. Behrman, 258 U.S. 280, 42 Sup.Ct. 303, 66 L.Ed. 619.

When the prosecution is based solely on information, the above reasoning becomes particularly cogent and controlling, on account of the unusual character of the proceeding, practically unknown to the criminal procedure of Pennsylvania and many other states, by which the defendant is deprived of a preliminary hearing before a committing magistrate, which naturally disclose to him the nature of the charge and the evidence to support it; and deprived also of the protection accorded to him against an unfounded prosecution by the timely intervention of a grand jury. It becomes apparent, therefore, from every legal viewpoint, that in a prosecution by information, which stands in lieu of the indictment of the grand jury, to which defendant must plead, upon which he must go to trial without preliminary hearing, and to which alone he must look to 'be informed of the nature and cause of the accusation,' that such information should without doubt be not less specific than the indictment in setting forth fully, directly, and expressly, without any uncertainty, all the elements necessary to constitute the offense, every ingredient of which it is composed.

It is true that section 32 of title 2 of the Volstead Act provides that--

'It shall not be necessary in any affidavit, information or indictment to give the name of the purchaser or to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful, but this...

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10 cases
  • Albrecht v. United States, 9
    • United States
    • United States Supreme Court
    • 3 Enero 1927
    ...in the lower federal courts have apparently allowed it to be taken by a motion to quash the information or indictment. United States v. Illig (D. C.) 288 F. 939. Compare United States v. Tureaud (C. C.) 20 F. 621; Johnston v. United States (C. C. A.) 87 F. 187; United States v. Wells (D. C.......
  • Stevens v. Biddle
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 15 Abril 1924
    ...(C.C.A.) 272 F. 967; Falconi v. United States (C.C.A.) 280 F. 766; Cleveland v. Mattingly, 287 F. 948, 52 App.D.C. 374; United States v. Illig (D.C.) 288 F. 939; v. United States (C.C.A.) 291 F. 513. The basis for all of these decisions was the proposition that a sentence of one year cannot......
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    • United States State Supreme Court of Mississippi
    • 31 Diciembre 1923
    ...... 252. F. 414, 164 C. C. A. 338 (C. C. A. Seventh Cir.) certiorari. by defendant denied by United States Supreme Court, 246 U.S. 675, 38 S.Ct. 428, 62 L.Ed. 933. See also, U. S. v. Borkowski (D. ......
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