Myers v. United States

• Decision Date: 15 October 1926
• Docket Number: No. 7098.,7098.
• Citation: 15 F.2d 977
• Parties: MYERS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

15 F.2d 977 (1926)

MYERS v. UNITED STATES.

No. 7098.

Circuit Court of Appeals, Eighth Circuit.

October 15, 1926.

W F. Gurley and James H. Hanley, both of Omaha, Neb. (Gurley, Fitch & West, of Omaha, Neb., on the brief), for plaintiff in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., and Ambrose C. Epperson and Andrew C. Scott, Asst. U. S. Attys., all of Omaha, Neb., on the brief), for the United States.

Before STONE, VAN VALKENBURGH, and BOOTH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

January 26, 1925, there was filed against plaintiff in error in the United States Court for the District of Nebraska, Omaha Division, an information consisting of five counts. The first three counts charged sales of intoxicating liquor; the fourth count unlawful possession of such; and the fifth count was for the maintenance of a common nuisance for the keeping for sale, and for barter and sale, of intoxicating liquor. At the trial the jury found the defendant guilty upon the second and third counts, not guilty upon the first and fifth counts, and at the direction of the court, not guilty on the fourth count; objections to the search warrant which produced the evidence upon which the fourth count was predicated having been sustained.

Plaintiff in error, defendant below, filed a motion to quash the jury panel because of the exclusion, in the drawing, of jurors from Douglas county, in which Omaha is situated; it being urged that the population of Douglas county formed a large percentage of that of the division of the district in which the offense was committed and tried. The order excluding these jurors was made pursuant to a long-standing practice of the court that, in drawing jurors, the county in which the crime was committed should be excluded. Defendant also filed a demurrer to the information on the following grounds:

(1) Because section 32 of title 2 of the National Prohibition Act is unconstitutional and void.

(2) Because the information does not employ the same or similar language to that contained in the act creating and defining the offense.

(3) Because conclusions, instead of facts, are pleaded.

(4) Because the information fails to allege the name of the purchaser, a definite place of the sale, the amount of the sale price, the definite kind or character of liquor, and an approximation of the alcoholic content thereof.

(5) Because the information fails to negative exceptions.

(6) Because the information does not charge that the liquor was sold for beverage purposes.

These grounds of demurrer were repeated as challenge to all the counts.

The motion to quash the panel was properly overruled. The law authorizes the court to draw the jury as was done in this case, and it is not required to assign a reason for so doing. The presumption is that it acted in the exercise of a sound discretion. If requested to assign a reason for the purpose of making a record for review, we think proper practice would require this to be done; but, in the absence of such request, we do not think the discretion can be challenged on that ground. The burden is upon the party who seeks to challenge the alleged arbitrary action, and in this case that burden has not been successfully carried. Spencer v. United States (C. C. A. Eighth Circuit) 169 F. 562, 95 C. C. A. 60.

The cited case concerned the exclusion of the county of Polk, Iowa, which embraces the city of Des Moines, and the situation as to population approximates that urged in the instant case. The court said:

"Rev. St. § 802 Comp. St. § 1254 providing that jurors shall be returned from such parts of the district as the court shall direct so as to be more favorable to an impartial trial, was not unconstitutional in so far as it permitted the summoning of jurors from parts of the district not containing the county in which the crime was committed, as depriving accused of a constitutional right to be tried by an impartial jury of the district wherein the crime was committed."

This ruling accords with the prevailing view in the United States that jurors, so far as possible, should be removed from any suspicion of knowledge, acquaintance, local bias or prejudice, and differs from the ancient English rule which required jurors to be summoned from the vicinage.

Most of the objections urged to the information are clearly ineffective. (1) The constitutionality of the act has been established beyond debate. (2) The offense need not be pleaded in the precise language of the act; but, in this case, the requirement urged is substantially met. (3) In a statutory offense pleading the elements and ingredients as defined and set out in the statute is not obnoxious to the charge of pleading mere conclusions. (4) The act under which this prosecution was brought specifically provides that the name of the purchaser need not be stated in the indictment or information, but may be supplied, if desired, upon application for a bill of particulars. It has been frequently held under the Volstead Act (Comp. St. § 10138¼ et seq.) that an indictment or information is not void for failure to state the name of the purchaser. Prior thereto, under the Alaska Code, the Circuit Court of Appeals for the Ninth Circuit held to the same effect. Booth v. United States (C. C. A. Ninth Circuit) 197 F. 283, 116 C. C. A. 645. The price paid is immaterial. An allegation that intoxicating liquor has been unlawfully sold implies payment of the price therefor. Booth v. United States, supra. The information states the specific kind and character of liquor claimed to have been sold and a sufficient approximation of the alcoholic content. In fact the term "alcohol" has a definite meaning and is specifically employed in the act. Furthermore it is unnecessary in such an information to include any defensive negative averments. Massey v. United States (C. C. A. 8th Circuit) 281 F. 293; Hensberg v. United States (C. C. A. 8th Circuit) 288 F. 370; Heitler v. United States (C. C. A. 7th Circuit) 280 F. 703; Meyers v. United States (C. C. A. 2d Circuit) 3 F.(2d) 379; McDonough v. United States (C. C. A. 9th Circuit) 299 F. 30; Pane v. United States (C. C. A. 8th Circuit) 2 F.(2d) 855.

The foregoing cases dispose of the fifth assignment in the demurrer. (6) It was unnecessary to allege even the fitness for beverage purposes, much less that it was sold for such purposes. Massey v. United States and Hensberg v. United States, supra.

It remains, then, to consider the effect of the omission to state in the information (a) the name of the purchaser, and (b) the specific place of the sale as distinguished from the city, county, state, and district, on the ground urged that, because of these omissions that information failed properly to advise the defendant of sufficient facts, relative to the commission of the alleged offense, to enable him to prepare his defense and to be protected against a possible subsequent prosecution for the same acts.

That it is ordinarily unnecessary in an information, so far as the venue is concerned, to specify more than the county or city and state, nor, indeed, more than the judicial district, in order to disclose jurisdiction, is established by abundant authority, and this has been the rule from earliest times not only in this country, but in England. 1 Wharton's Criminal Procedure, § 134; 1 Bishop's New Criminal Procedure, §§ 376-378; 1 Baldwin's Reports, 119; 33 Corpus Juris, 716, citing cases from a number of states; Ledbetter v. United States, 170 U. S. 606, 18 S. Ct. 774, 42 L. Ed. 1162; Flack et al. v. United States (C. C. A. 8th Circuit) 272 F. 680; Heitler v. United States (C. C. A.) 280 F. 703; Adamson v. United States (C. C. A.) 296 F. 110; Dukich v. United States (C. C. A.) 296 F. 691; McDonough v. United States (C. C. A.) 299 F. 30; Pane v. United States (C. C. A.) 2 F.(2d) 855.

The rule has been uniformly announced that, where the offense is purely statutory, having no relation to the common law, it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description in the substantial words of the statute, without further expansion of the matter, to which is to be added that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. United States v. Hess, 124 U. S. 483-488, 8 S. Ct. 571, 31 L. Ed. 516; United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819; United States v. Britton, 107 U. S. 655-661, 2 S. Ct. 512, 27 L. Ed. 520; United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135; United States v. Cook, 17 Wall. 168-174, 21 L. Ed. 538; United States v. Cruikshank, 92 U. S. 542-558, 23 L. Ed. 588; Pettibone v. United States, 148 U. S. 197-204, 13 S. Ct. 542, 37 L. Ed. 419; Evans v. United States, 153 U. S. 584-590, 14 S. Ct. 934, 38 L. Ed. 830; Cochran & Sayre v. United States, 157 U. S. 287-290, 15 S. Ct. 628, 39 L. Ed. 704.

The main reasons for these requirements as stated generally are:

"(1) That the defendant's conviction or acquittal may enure to his subsequent protection, should he be again questioned on the same grounds.

"(2) To enable the court, looking at the record after conviction, to decide whether the facts charged are sufficient to support a conviction of the particular crime, and to warrant their judgment.

"(3) To enable the defendant to prepare for his defense in a particular case, and to plead in all, or, if he prefer it, to submit to the court by demurrer whether the facts alleged so support the conclusion in law, as to render it necessary for him to make any answer to the charge."

Beyond question this information states all of the essential elements and ingredients of the offense as defined by statute. It alleges the sale by the defendant on a specific date, in a...