Malinow v. United States, 2949.

• Decision Date: 23 June 1930
• Docket Number: No. 2949.,2949.
• Parties: MALINOW et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

42 F.2d 374 (1930)

MALINOW et al. v. UNITED STATES.

No. 2949.

Circuit Court of Appeals, Fourth Circuit.

June 23, 1930.

R. Palmer Ingram, of Baltimore, Md. (Harry O. Levin, of Baltimore, Md., on the brief), for appellants.

William C. Purnell, Asst. U. S. Atty., of Baltimore, Md. (A. W. W. Woodcock, U. S. Atty., of Baltimore, Md., on the brief), for the United States.

Before NORTHCOTT, Circuit Judge, and BAKER and GRONER, District Judges.

GRONER, District Judge.

Samuel Malinow and Louis Malinow were jointly indicted in the District Court in Baltimore for violating the National Prohibition Law. The trial took place November 1, 1929, at which time Louis Malinow pleaded guilty, and Samuel Malinow pleaded not guilty, and was convicted. On November 4, following, a motion in arrest of judgment was presented on behalf of both Samuel and Louis Malinow, which was overruled by the District Court, and sentence was imposed on both. They both appealed. The grounds of appeal are, first, that the indictment does not state sufficient facts to constitute a crime, and, second, that the facts stated are not sufficient to notify the defendants of the nature and cause of the accusation against them. The indictment contained two counts. The first charged that the defendants on the 23rd of April, 1929, "in Harford County, in the State of Maryland and District aforesaid, did unlawfully have in their possession certain intoxicating liquor, to-wit, 24-5 gallon cans of alcohol, 5-5 gallon cans of alcohol a more particular description of said intoxicating liquor being to the Grand Inquest aforesaid unknown, the possession of said intoxicating liquor as aforesaid being then and there prohibited and unlawful," etc. The second charged that the defendants on the same day, in the same county, state, and district, "did unlawfully transport certain intoxicating liquor, to-wit, 24-5 gallon cans of alcohol, 5-5 gallon cans of alcohol * * * the transportation of said intoxicating liquor as aforesaid being then and there prohibited and unlawful," etc.

It is well settled that the purpose of an indictment is twofold; first, to inform the accused of the charge against him so that he may make his defense; and, second, to describe the offense with such particularity that a conviction may be pleaded in bar of a subsequent prosecution for the same offense. U. S. v. Behrman, 258 U. S. 280, 42 S. Ct. 303, 66 L. Ed. 619. Applying this test, we think the indictment sufficient in form and substance.

Section 32, title 2, of the National Prohibition Act (27 USCA § 49), reads in part as follows: "It shall not be necessary in any * * * information, or indictment * * * to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful."

In the case of Hovermale v. United States, 5 F.(2d) 587, this court had occasion, in a case much like this, to interpret this section of the Prohibition Law, and we there held that, as a question of pleading, the statute makes any possession of intoxicating liquor a crime, if alleged by the United States Attorney or the grand jury to have been unlawfully possessed, and likewise that any fact which makes the possession of intoxicating liquor lawful is a matter of defense. Adhering to this...