Muncy v. United States

• Decision Date: 01 May 1923
• Docket Number: 2061.
• Citation: Muncy v. United States, 289 F. 780 (4th Cir. 1923)
• Parties: MUNCY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

289 F. 780

MUNCY v. UNITED STATES.

No. 2061.

United States Court of Appeals, Fourth Circuit.

May 1, 1923

T. J Lilly, of Hinton, W. Va., and James S. Kahle, of Bluefield W. Va., for plaintiff in error.

Ellis A. Yost, Asst. U.S. Atty., of Huntington, W.Va. (Elliott Northcott, U.S. Atty., of Huntington, W. Va., and Jo. N Kenna, Asst. U.S. Atty., of Charleston, W. Va., on the brief), for the United States.

Before WOODS and WADDILL, Circuit Judges, and GRONER, District Judge.

GRONER District Judge.

Lucy Muncy, plaintiff in error (hereafter called defendant), was convicted on an information charging violation of the National Prohibition Law (41 Stat. 305). As originally filed the information contained two counts, the first charging unlawful possession of liquor, and the second the maintenance of a nuisance under section 21 of title 2 of the act. After her arraignment, and plea of not guilty, the United States attorney was permitted by the court, over defendant's objection and exception, to amend the information by inserting an additional count charging sale. The trial then proceeded without any further plea, and in this respect the grounds upon which we are urged to reverse are, first, that the lower court erred in allowing the amendment; and, second, that the failure of the defendant to plead to the information as amended renders the proceedings had thereunder void and of no effect.

As to the first point, we need only observe that it is too well settled to require citation of authority that an information, unlike an indictment, may be amended by leave of court, even after motion to quash, demurrer, or plea (22 Cyc.p. 436, and cases cited); for, as Lord Mansfield observes, in Rex v. Wilkes, 4 Burr. 3567:

'There is a great difference between amending indictments and amending informations. Indictments are found upon the oath of a jury, and ought only to be amended by themselves; but informations are as declarations in the king's suit. An officer of the crown has the right of framing them originally, and may, with leave, amend in like manner as any plaintiff may do.'

As authority for the second point, we are referred to the case of Crain v. U.S., 162 U.S. 625, 16 Sup.Ct. 952, 40 L.Ed. 1097, which, except for the fact that it was subsequently overruled, would be conclusive in defendant's favor; but in the later case of Garland v. State of Washington, 232 U.S. 642, 34 Sup.Ct. 456, 58 L.Ed. 772, the Supreme Court, after reviewing and expressly overruling the Crain Case, announced the modern rule to be:

'That the technical enforcement of formal rights in criminal procedure * * * is no longer required in the prosecution of offenses under present systems of law.'

The point raised in that case was identically the same as the point raised here. There, as here, no arraignment or plea was had upon the information, and there Mr. Justice Day, speaking for the court, in answering that point, says:

'It is apparent that the accused was tried and convicted upon an information charging an offense against the law; that he had a jury trial, with full opportunity to be heard; and that he was in fact deprived of no right or privilege in the making of his defense, unless such deprivation arises from the fact that he was not arraigned and required to plead to the second information before trial. The object of arraignment being to inform the accused of the charge against him and obtain an answer from him, was fully subserved in this case, for the accused had taken objections to the second information and was put to trial before a jury upon that information in all respects as though he had entered a formal plea of not guilty.' This

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