Brown v. United States

• Decision Date: 05 May 1919
• Docket Number: 3224.
• Citation: 257 F. 703
• Parties: BROWN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

257 F. 703

BROWN v. UNITED STATES.

No. 3224.

United States Court of Appeals, Ninth Circuit.

May 5, 1919

J. M Blackford, of Libby, Mont., and R. P. Henshall, of San Francisco, Cal., for plaintiff in error.

E. C Day, U.S. Atty., of Helena, Mont., Burton K. Wheeler, U.S Atty., and James H. Baldwin, Asst. U.S. Atty., both of Butte Mont., and Homer G. Murphy, Asst. U.S. Atty., of Helena, Mont.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff in error was convicted upon an information which charged him with willfully failing and refusing to present himself for registration on June 5, 1917, at the registration place in the precinct of Lincoln county. Mont., in which he then and there had his permanent home and actual place of legal residence; he being a male person between the ages of 21 and 30 years, and not an officer or an enlisted man of the Regular Army or Navy, or Marine Corps, or in other service of the United States, or in the Reserve Corps, etc.

It is assigned as error that the court admitted testimony on an information which failed to state facts sufficient to constitute a public offense. No objection to the introduction of evidence was suggested to the trial court, but it is now said that he information is fatally defective for want of an allegation that the plaintiff in error was a citizen of the United States. In Ruthenberg v. United States, 245 U.S. 480, 38 Sup.Ct. 168, 62 L.Ed. 414, the court held that it was not necessary to charge that the accused who refused to register was a citizen of the United States.

The information was verified by an assistant United States district attorney, and on that ground it is urged that it was fatally defective. Section 363, Rev. Stats. (Comp. St. Sec. 538), gives the Attorney General power to employ, in the name of the United States, attorneys 'to assist the district attorneys in the discharge of their duties. ' It places no restriction upon the powers of the assistant district attorneys. They come within the general rule that an assistant, duly appointed to prosecute, is clothed with all the powers and privileges of the prosecuting attorney, and all acts done by him in that capacity must be regarded as if done by the prosecuting attorney himself. 32 Cyc. 724; Parish v. United States, 100 U.S. 500, 25 L.Ed. 763; May v. United States, 236 F. 495, 149 C.C.A. 547.

The further objection is made that the verification is made on information and belief. There is no statute which requires the verification of an information. It is only where it is sought to issue a warrant that the Constitution requires that there must be the affidavit of one who knows the facts. Weeks v. United States, 216 F. 292, 132 C.C.A. 436, L.R.A. 1915B, 651, Ann. Cas. 1917C, 524.

Error is assigned to the denial of the motion of plaintiff in error for a directed verdict, and our attention is directed to section 56, part 3, of the Selective Service Regulations, which provides:

'Citizens and persons who have declared their intention to become citizens, residing abroad, are not required to register.'

The record shows that the plaintiff in error made no motion for a directed verdict. We have looked into the testimony, however sufficiently to see that there was evidence which tended to prove that his...