Brooks v. United States
| Decision Date | 26 October 1925 |
| Docket Number | No. 4571.,4571. |
| Citation | 8 F.2d 593 |
| Parties | BROOKS et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. C. Brooks and others were convicted of violating National Prohibition Act, and defendants Brooks and Webb bring error. Affirmed.
Clifford A. Russell and Donald McKisick, both of Sacramento, Cal., for plaintiffs in error.
George J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.
Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.
The information in this case is a complex mass, slovenly thrown together. It contains the three counts commonly found in informations filed under the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.); the first count charging the maintenance of a common nuisance at a stated time and place, the second count charging the unlawful possession of intoxicating liquor at the same time and place, and the third count charging the unlawful sale of intoxicating liquor at or about the same time and place. Immediately following the third count of the information is a blank form of affidavit, naming no deponent, but apparently signed by the United States attorney and his assistant. It is quite manifest that the United States attorney and Lis assistant did not intend to sign this blank form of affidavit, but it nevertheless so appears in the transcript on file. Four defendants were named in the information, but upon the trial a verdict was returned as to three only. One Larke, a defendant, was found guilty as to the possession count, the defendant Webb was found guilty as to the sales count, and the defendant Brooks was found guilty as to all three counts. The latter two have sued out a writ of error to review the judgment of conviction as to them.
The first assignment of error questions the sufficiency of the information, because not subscribed or signed by the United States attorney or his assistant. "It is generally essential to the validity of an information that it shall be signed by the proper prosecuting attorney after the facts constituting the offense have been alleged therein." 31 C. J. 643. But this requirement is waived, unless objection is taken by motion to quash, or demurrer. Id. 873; Brown v. State, 9 Okl. Cr. 382, 132 P. 359; Simpson v. State, 16 Okl. Cr. 533, 185 P. 116; People v. Fritz, 54 Cal. App. 137, 201 P. 348; Roman v. State, 23 Ariz. 67, 201 P. 551. Here the objection was first raised after verdict, and came too late. Other objections to the information are without merit.
Testimony was offered tending to show that one of the prohibition agents purchased intoxicating liquor from the plaintiff in error Webb at the place in question on September 17, 1924. About a week later the agents returned, armed with a search warrant, and searched the premises for contraband liquor. While engaged in the search, the defendant Larke was seen back of the premises, near a garage, with two suit cases in his possession. Larke was apprehended, and upon examination the suit c...
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