Lund v. United States

• Decision Date: 11 April 1927
• Docket Number: No. 7457.,7457.
• Citation: 19 F.2d 46
• Parties: LUND v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

19 F.2d 46 (1927)

LUND v. UNITED STATES.

No. 7457.

Circuit Court of Appeals, Eighth Circuit.

April 11, 1927.

Frank J. Collins, of Minneapolis, Minn. (McDonald, Johnson & Collins, of Minneapolis, Minn., on the brief), for plaintiff in error.

James A. Wharton, Asst. U. S. Atty., of St. Paul, Minn. (Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Before KENYON, Circuit Judge, and SYMES, District Judge.

KENYON, Circuit Judge.

Plaintiff in error was tried on two informations, consolidated for the purpose of trial; one in two counts charging the sales of intoxicating liquor contrary to law on October 23 and 24, 1924, respectively. The other charged the maintenance of a common nuisance on October 25, 1925, by keeping a place where intoxicating liquors were kept and sold in violation of law. Plaintiff in error was acquitted on the sale charges and convicted on the nuisance charge. A motion for arrest of judgment was filed, which raised for the first time the question that the information charged the maintenance of a nuisance as of October 25, 1925, when the information was filed April 8, 1925.

An information or indictment must state the nature of the offense so accurately and clearly as to sufficiently apprise the accused of the offense charged, so that proper defense may be made, and, if accused be convicted thereon, that the judgment rendered will be a bar to another prosecution for the same offense. United States v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538; Rosen v. United States, 161 U. S. 29, 34, 16 S. Ct. 434, 480, 40 L. Ed. 606; Ledbetter v. United States, 170 U. S. 606, 18 S. Ct. 774, 42 L. Ed. 1162. Section 1025, Rev. St. U. S. (Comp. St. § 1691), prevents a mere error of form from invalidating an indictment or information. It is as follows: "No indictment found and presented by a grand jury in any District (or Circuit) or other Court of the United States shall be deemed insufficient, nor shall the trial judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." While, of course, an information is faulty which states the alleged date on which an offense was committed as after the time of the finding of the indictment or filing of the information, yet the date is generally a matter of form, unless the crime laid is under a statute which makes the date an essential part of the crime. That is not the situation here. Adams v. United States (C. C. A.) 246 F. 830, is a case very similar to this. There an indictment presented on March 16, 1916, charged the offense as committed on November 1, 1916. The court held it was a mere clerical error. In Nigro v. United States, 7 F.(2d) 553, 560, this court said: "Now, we are not unmindful of the rule that when, in an indictment, a defendant is charged with the commission of an offense as of a particular date, the prosecution is not bound to establish the offense as of that particular date. It is well settled that, if the date specified in the indictment is an erroneous one, the prosecution will not be precluded from proving the offense at the time it in fact was committed, if at any time within the statutory period of limitation, and in cases such as this three years." See, also, Taylor v. State, 169 Ark. 589, 276 S. W. 577; Saunders v. State (Okl. Cr. App.) 244 P. 55; Hume v. United States (C. C. A.) 118 F. 689.

Both parties in the case seem throughout the trial to have considered the date of the alleged offense as October 25, 1924. The evidence introduced covers a period from October 20 to October 25, 1924. Frequent reference throughout the case is made by counsel on both sides to the date of the offense as October 25, 1924. The clerk of the court made the docket entry as to the information that it charged violation of the National Prohibition Act (Comp. St. § 10138¼ et seq.) as of that date. The court instructed the jury that defendant was charged by the information with having maintained a nuisance on October 25, 1924. No objections were made or exceptions taken to the instructions. The accused knew full well, as her testimony shows, that she was charged with an offense as of that date. The error in the date apparently was not discovered until about the time a motion in arrest of judgment was filed. Clearly the erroneous date was a mere clerical error, and went to the question of form rather than substance. No one connected with the trial of the case was deceived thereby. No demurrer or objection was made to the information, and in our judgment this apparent clerical error was cured by the verdict of guilty.

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