Benn v. United States

• Decision Date: 08 October 1928
• Docket Number: No. 5418.,5418.
• Citation: 28 F.2d 509
• Parties: BENN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

28 F.2d 509 (1928)

BENN v. UNITED STATES.

No. 5418.

Circuit Court of Appeals, Ninth Circuit.

October 8, 1928.

Harry L. Parr, of Olympia, Wash., for plaintiff in error.

Anthony Savage, U. S. Atty., of Seattle, Wash., John T. McCutcheon, Asst. U. S. Atty., of Tacoma, Wash., and David Spalding, Asst. U. S. Atty., of Seattle, Wash.

Before RUDKIN, DIETRICH, and HUNT, Circuit Judges.

DIETRICH, Circuit Judge.

By information filed March 23, 1927, Jim Benn, the appellant, was charged, in the first count, with the unlawful sale of intoxicating liquor on November 24, 1926; in the second count, with a sale on November 27, 1926; in the third count, with possession on December 2, 1926; and in the fourth count, with the maintenance of a nuisance between November 24 and December 2, 1926 — all under the National Prohibition Act. From a judgment of conviction upon all the charges, he appeals, and he assigns as error the action of the court in declining to quash the information or to strike it from the files upon the grounds: (1) That it was unverified; (2) that it was not supported by any showing of probable cause; and (3) was filed without leave of court. The questions raised were presented before trial by motion to quash, and after verdict by motions for arrest of judgment and for a new trial.

The information is not verified or supported by any affidavit attached thereto, and was filed without order of court granting leave. But on January 13, 1927, there was filed with the court a certified copy of a complaint made before the United States commissioner and a transcript of the commissioner's proceedings thereon. This complaint, sworn to by a federal prohibition agent, charges in substance "that on or about December 2, 1926," at the place specified in the information, defendant unlawfully maintained a nuisance and unlawfully possessed and sold moonshine whisky. By the transcript it is shown that, upon a trial of these charges, the commissioner found there was probable cause to believe them true, and accordingly held the defendant to answer. As noted in Albrecht v. United States, 273 U. S. 1, 5, 47 S. Ct. 250, 251 (71 L. Ed. 505), there is a diversity of practice in respect of filing informations. And the court there said:

"Despite some practice and statements to the contrary, it may be accepted as settled that leave must be obtained, and that, before granting leave, the court must, in some way, satisfy itself that there is probable cause for the prosecution. ...