Booth v. United States

• Decision Date: 15 March 1912
• Docket Number: 2,069.
• Parties: BOOTH v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

197 F. 283

BOOTH v. UNITED STATES.

No. 2,069.

United States Court of Appeals, Ninth Circuit.

March 15, 1912

L. V Ray, of Seward, Alaska, for plaintiff in error.

George R. Walker, U.S. Atty., of Valdez, Alaska.

J Lindley Green, Asst. U.S. Atty., of Seward, Alaska.

Robert T. Devlin, U.S. Atty., and Benjamin L. McKinley, Asst. U.S Atty., both of San Francisco, Cal.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge.

The plaintiff in error was convicted upon an information charging him with the violation of section 472 of Carter's Annotated Code of Criminal Procedure of Alaska, which prescribes a penalty for selling liquor without a license. The information was as follows:

'J. Lindley Green, assistant United States attorney for the Third Division of the District Court of Alaska, informs the court: That the defendant, C. R. Booth, is guilty of the crime of engaging in the sale of intoxicating liquors without having procured a license of the District Court for the Third Division of the District of Alaska, or any division thereof, so to do. That said crime was committed as follows, to wit: That the said C. R. Booth, at Girdwood, in Kenai precinct, in the Third Division of the District of Alaska, he, the said C. R. booth, not having procured a license from the District Court for the District of Alaska, Third Division, or any division thereof, to engage in the sale of intoxicating liquors at retail, did, on the fifteenth day of February, nineteen hundred and eleven, engage in the sale of intoxicating liquors at retail, all contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America.

'Dated at Valdez, in the district and division aforesaid, the 7th day of March, nineteen hundred and eleven.

J. Lindley Green,

'Assistant United States Attorney for the District of Alaska,

'Third Division.'

'United States of American, District of Alaska, Third Division-- ss.:

'J. Lindley Green, being first duly sworn, on oath deposes and says: That he is assistant United States district attorney for the District of Alaska Third Division; that he has read the foregoing information; knows the con tents thereof and that the said complaint is true.

J. Lindley Green.

'Subscribed and sworn before me this 7th day of March, 1911.

'Don A. Stewart,

'Notary Public in and for the District of Alaska,

'Residing at Valdez. (Seal.)

The plaintiff in error made no demand for a bill of particulars, but moved to set aside, quash, and vacate the information for the reason that the same failed to inform the plaintiff in error of the nature and cause of the accusation against him, or to exhibit the names of the witnesses upon whose testimony it was based. A motion was made in arrest of judgment on similar grounds.

It is urged that the information was insufficient, in that no name of any witness was indorsed thereon, that the information does not state on its face a description of the intoxicating liquors alleged to have been sold, nor the quantity thereof, nor the name of the purchaser thereof or the price paid therefor, and that it fails to state that said liquor, if sold, was not sold for medicinal, mechanical, or scientific uses, and that it does not identify any particular act charged so as to enable the accused to meet the same. The case of State v. Warren, 41 Or. 348, 69 P. 679, is cited to the proposition that the information is fatally defective for want of indorsement thereon of the names of witnesses. That decision, however, was based upon a statute enacted February 17, 1899, which provided:

'That the name of each witness examined on oath or affirmation by a district attorney in support of any information shall be inserted at the foot of such information or endorsed thereon before the same is filed; otherwise the testimony of such witness can not be heard against the defendant at the trial of such information.' There is no such provision in the Criminal Code of Alaska. It is true that it is therein provided that, when an indictment is found, the names of the witnesses examined before the grand jury must be inserted at the foot of the indictment or indorsed thereon, but there is no similar provision in the section of the Code which authorizes the prosecution of offenses by information. Section 270, c. 31, of the Criminal Code, declares:

'That an information is the allegation or statement made before a magistrate and verified by the oath of the party making it that a person has been guilty of some designated crime.'

The information in this case complies with that statute.

As to the other objections to the information, it may be observed first, that in describing the liquor sold it is generally sufficient to follow the language of the statute on which the prosecution is founded, and that the information may describe the liquor as spirituous or intoxicating liquor without naming any particular liquor (23 Cyc. 228, and cases there cited); second, an allegation as to the quantity sold is never necessary where the quantity of liquor sold is entirely...