Kempe v. United States

• Decision Date: 10 December 1945
• Docket Number: No. 13076.,13076.
• Citation: 151 F.2d 680
• Parties: KEMPE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

151 F.2d 680 (1945)

KEMPE v. UNITED STATES.

No. 13076.

Circuit Court of Appeals, Eighth Circuit.

October 27, 1945.

Rehearing Denied December 10, 1945.

Carlos W. Goltz, of Sioux City, Iowa, for appellant.

Tobias E. Diamond, U. S. Atty., of Sioux City, Iowa, for appellee.

Before GARDNER and THOMAS, Circuit Judges, and MILLER, District Judge.

MILLER, District Judge.

By information containing eight counts, the appellant, hereinafter called defendant, was charged in counts I, III, V and VII with violating on a specific date named in each count, Ration Order No. 5C (7 Federal Register 9135), as amended, being a regulation issued and promulgated under the Second War Powers Act of 1942, Sections 631 to 645a, both inclusive, of Title 50 U.S.C.A.Appendix, as amended.

In counts II, IV, VI and VIII defendant was charged with violating, on a specific date named in each count, Maximum Price Regulation 88(9 Federal Register 1783), being a regulation issued and promulgated under the Emergency Price Control Act of 1942, Sections 901 to 946, both inclusive, of Title 50 U.S.C.A.Appendix, as amended.

By jury verdict the defendant was acquitted on all counts except III and IV. He was sentenced to imprisonment for one year upon the verdict of guilty on each of the counts III and IV, the sentence upon count IV to run concurrently with the sentence upon count III and, also, was adjudged to pay the costs.

By this appeal the defendant challenges the judgment and seeks a reversal on the grounds that the court erred in refusing: (1) to sustain the motion to quash the information; (2) to sustain the demurrer to the information; (3) to sustain the motion for a bill of particulars; (4) to withdraw from consideration by the jury counts III and IV of the information; (5) and erred in the admission of testimony of certain witnesses over the objection of defendant.

Preliminary to the consideration of these contentions the allegations of counts III and IV should be examined along with the applicable regulations and statutory enactments alleged to have been violated.

In count III it was charged that the defendant on the 4th day of October 1944, in Sioux City, Iowa, was engaged and employed in the trade and business of selling and delivering gasoline in tank wagons to persons for resale at retail establishments and that the defendant knowingly, wilfully and unlawfully sold, transferred and delivered to C. T. Studley, who was engaged in the business of reselling gasoline at a retail establishment in Sioux City, Iowa, 500 gallons of gasoline without receiving, or in exchange for, at the time of the delivery of the gasoline or within five days thereafter, a quantity of coupons or other evidences equal in gallonage to the 500 gallons of gasoline so delivered, in violation of Ration Order No. 5C (7 Federal Register 9135) being a regulation made under the Second War Powers Act of 1942, Sections 631 to 645a, both inclusive, Title 50 U.S.C.A.Appendix, as amended.

Statutory authority for the rationing of gasoline is found in Title III of the Second War Powers Act of 1942, as amended. Subsection 2(a) (2) of § 633, 50 U.S.C.A. Appendix.

The applicable provisions of the Act were extended to December 31, 1945, by Public Law 509 of the 78th Congress. Chapter 614, Second Session, 50 U.S.C.A.Appendix, § 645. In subsection 2(a) (5) of § 633, 50 U.S.C.A.Appendix, it is provided: "Any person who willfully performs any act prohibited, or willfully fails to perform any act required by, any provision of this subsection (a) or any rule, regulation, or order thereunder, whether heretofore or hereafter issued, shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than one year, or both."

Ration Order No. 5C (7 Federal Register 9135) was issued under the Act and prohibits a dealer in gasoline from transferring or selling gasoline without receiving ration coupons in equal gallonage value to the gasoline so transferred or delivered.

In count IV of the information it was charged that the defendant on the 4th day of October, 1944, in Sioux City, Iowa, was engaged in the business of selling and delivering gasoline in tank wagons to persons for resale by retail and that the defendant knowingly, wilfully and unlawfully sold and delivered by tank wagon to C. T. Studley, who was then engaged in the business of reselling gasoline at retail in Sioux City, Iowa, 500 gallons of premium motor gasoline at a price of 19½ cents per gallon, which said price as the defendant then well knew was higher than the lawful maximum tank wagon price of 16.1 cents per gallon, prescribed and established by Section 7.4 of Maximum Price Regulation No. 88 (9 Federal Register 1783), in violation of the said maximum price regulation made and promulgated under the Emergency Price Control Act of 1942, Sections 901 to 946, both inclusive, Title 50 U.S.C.A.Appendix, as amended.

There is also set forth in this count the formula by which the maximum price of 16.1 cents per gallon was determined.

The statutory power to fix maximum prices is found in the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq. The Act was extended to June 30, 1945 by Public Law 383, 78th Congress, Second Session, 50 U.S.C.A.Appendix, § 901. Under 50 U.S.C.A.Appendix, § 904(a) it is provided that it shall be unlawful for any person to sell or deliver any commodity in violation of any regulation or order fixing or establishing price schedules thereunder, and under Section 925(b) of 50 U.S.C.A.Appendix, criminal penalties are provided for violation of the Emergency Price Control Act.

The maximum price for the sale of the particular gasoline sold and delivered by the defendant was prescribed by Section 7.4 of Maximum Price Regulation No. 88 (9 Federal Register 1783).

On December 8, 1944, the defendant filed his motion to quash the information. The motion to quash was overruled and subsequent thereto the defendant filed a demurrer to the information in which he incorporated all of the grounds set forth in the motion to quash except the allegation that at the time the court granted leave to file the information there was no evidence before the court of probable cause of guilt on the part of the defendant and that the verification of the information was not sufficient to establish probable cause of guilt.

In Hill v. United States, 8 Cir., 15 F.2d 14, this court said: "A motion to quash an indictment is addressed to the discretion of the court, and will ordinarily not be reviewed in an appellate court. In the case of United States v. Rosenburgh, 7 Wall. 580, 74 U.S. 580, 19 L.Ed. 263, the court said: `The motion to quash, upon which the question now before us arose, was clearly determinable as a matter of discretion. It was preliminary in its character, and the denial of the motion could not finally decide any right of the defendant. The rule laid down by the elementary writers is, that "a motion to quash is addressed to the sound discretion of the court, and if refused, is not a proper subject of exception." When made in behalf of defendants, it is usually refused, unless in the clearest cases, and the grounds of it are left to be availed of, if available, upon demurrer or motion in arrest of judgment.'"

In United States v. Hamilton, 109 U.S. 63, 3 S.Ct. 9, 27 L.Ed. 857, the court said: "As a motion to quash is always addressed to the discretion of the court, a decision upon it is not error, and cannot be reviewed on a writ of error."

In Conway v. United States, 9 Cir., 142 F.2d 202, and Tudor v. United States, 9 Cir., 142 F.2d 206, it was held that the denial of a motion to quash an indictment is not reviewable.

However, in view of the fact that the motion to quash raises the question of the right of the court to permit the information to be filed, which ground is not included in the demurrer to be considered later, we feel that the particular contention should be determined by us.

The information was verified by a special agent of the Office of Price Administration, and in addition to the verification by such special agent the United States Attorney also verified the allegations contained in the information by affidavit executed before the clerk of the court.

In the case of Corson v. United States, 9 Cir., 147 F.2d 437, it was held that probable cause of guilt is sufficiently established by a verification of an information by the affidavit of an investigator of the Office of Price Administration.

In Albrecht v. United States, 273 U.S. 1, 6, 47 S.Ct. 250, 252, 71 L.Ed. 505, the court said: "The United States attorney, like the Attorney General or Solicitor General of England, may file an information under his oath of office, and, if he does so, his official oath may be accepted as sufficient to give verity to the allegations of the information."

The motion to quash the information was properly overruled by the trial court.

This brings us to a consideration of the demurrer to the information, the chief grounds of which are that the regulations alleged to have been violated by the defendant were not set out in the information; that the Second War Powers Act of 1942, as amended, supra, cannot be made a basis for prosecution of the defendant under count III; that the alleged violations contained in count IV of the Emergency Price Control Act of 1942, as amended, cannot be prosecuted by information; that the same expired on June 30, 1944, prior to the date of the alleged offense by the defendant; and that the facts are not alleged with reasonable particularity so as to advise the defendant of the nature of the offense sought to be charged.

In Clement v. United States, 8 Cir., 149 F. 305, 313, the court said: "The well-known canons of construction employed to ascertain the meaning of written instruments should not be ignored to secure mere technical accuracy, when that is unnecessary for the legitimate protection of the accused. ...