United States v. Douglas, 8970.
| Citation | 155 F.2d 894 |
| Decision Date | 06 July 1946 |
| Docket Number | No. 8970.,8970. |
| Parties | UNITED STATES v. DOUGLAS. |
| Court | U.S. Court of Appeals — Seventh Circuit |
George F. Callaghan, William H. Murphy, and Alfred Roy Hulbert, all of Chicago, Ill., for appellant.
J. Albert Woll, U. S. Atty., and Robert C. Eardley, Asst. U. S. Atty., both of Chicago, Ill., Theron L. Caudle, Asst. Atty. Gen. (Vincent A. Kleinfeld, Attorney, Department of Justice, Arthur A. Dickerman and William W. Goodrich, Attorneys, Federal Security Agency, all of Washington, D. C., of counsel), for appellee.
Before SPARKS, MAJOR and KERNER, Circuit Judges.
This is an appeal from a judgment of conviction predicated upon an information filed by the United States District Attorney, which charged a violation of numerous sections of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq.
Defendant urges numerous grounds for reversal, but inasmuch as we are of the view that the judgment must be reversed on one of such grounds, it is unnecessary to state or discuss the others. The court sent to the jury the information, to which were attached two affidavits, each of which contained convincing proof in support of the charges contained in the information. One of the affidavits was made by a person called as a witness at the trial, the other was not. We see no reason to set forth the contents of these affidavits. It is sufficient to state that they strongly supported the government's case; in fact, they contained proof of every element essential to a conviction.
The question therefore is, was the submission of these affidavits to the jury reversible error? The government attempts to excuse their submission almost entirely by the fact that the court instructed the jury in the usual form to the effect that the information was no evidence of the defendant's guilt, that it was not to be treated by the jury as raising any kind of presumption against the defendant, and that it was simply the formal manner prescribed by law for preferring a charge and should be regarded by the jury solely in that light. A number of cases are cited in which this general instruction has been approved. We need not cite or discuss them for the reason that they are beside the point. No complaint is made because the information was permitted to go to the jury, but the criticism is directed solely at the affidavits. It is one thing to send to the jury an indictment or information, the accusation against the defendant, but something entirely different to send affidavits containing the government's proof in support of such accusation. We know of no authority and we suspect there is none which condones, much less approves, such a procedure.
It is pointed out by the government that these affidavits were required by the court as a prerequisite to its granting leave to file the information. This no doubt was a proper procedure. The filing of an information is discretionary with the court and leave must be obtained. In the exercise of this discretion, it may properly require that in some manner it be satisfied of probable cause for a prosecution. One of the ways by which it may be so satisfied is by the filing of affidavits. S...
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