United States v. Fried

• Decision Date: 21 June 1945
• Docket Number: No. 361.,361.
• Citation: 149 F.2d 1011
• Parties: UNITED STATES v. FRIED.
• Court: U.S. Court of Appeals — Second Circuit

149 F.2d 1011 (1945)

UNITED STATES v. FRIED.

No. 361.

Circuit Court of Appeals, Second Circuit.

June 21, 1945.

James J. McLoughlin, of New York City, for appellant.

J. Wolfe Chassen, Miles F. McDonald, U. S. Atty., and Vine H. Smith, Asst. U. S. Atty., all of Brooklyn, N. Y., for appellee.

Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.

PER CURIAM.

On appeal from a judgment of conviction for selling liquor in violation of § 904(a) of Title 50 U.S.C.A. Appendix, at prices higher than those fixed by the regulations of the Price Administrator of the Office of Price Administration, in accordance with § 902(a). Only two questions are raised upon this appeal: the insufficiency of the information, and the incompetency of the testimony by which the prosecution established the maximum prices, above which the defendant was accused of selling the liquors in question. The prosecution had originally procured an indictment for the same offenses: in sixty counts, one for each sale; but, for some undisclosed reason, it did not choose to proceed under this, and in its stead filed an information: also in sixty counts and for the same sales. Each count alleged the date of the sale, the buyer, the kind of liquor (including the brand), the amount and the price; and concluded as follows: "which sum constituted a price per case higher than the maximum price per case permitted to be charged by said defendant for such merchandise under Maximum Price Regulation Nos. 193 and 445 as promulgated by the Price Administrator." The information was filed on August 4, 1944, and the case came on for trial on October 24, after several continuances; meanwhile the accused had made no application for a bill of particulars. The trial continued for eleven days, at the end of which the jury brought in a verdict of guilty upon thirty-one counts, and of acquittal upon twenty-nine. The judge sentenced the defendant to six months imprisonment on each of three counts — the sentences to run consecutively — and fined him $2,000 upon each of twenty-eight counts — $56,000 in all. No challenge was made of the form of the information, until the "Grounds of Appeal" were filed, as provided in Rule III of the Supreme Court Rules governing criminal appeals, 18 U.S. C.A. following section 688.

Strictly, we need say no more as to the information than that the objection was raised too late; for no essential allegation was omitted, and the defect, if any, was only of insufficiency in form: i.e. that instead of facts the information alleged only legal conclusions. Such an objection is abandoned when it is not taken, at the latest before verdict. United States v. Goldsmith, 2 Cir., 68 F.2d 5; Sparks v. United States, 6 Cir., 90 F.2d 61. But we are not content to dispose of the objection in this way, lest it be assumed that we thought it of substance, or should have sustained it, if it had been taken in season. We regard the defect as falling within § 556 of Title 18 U.S.C.A., and of no importance unless the accused can show that the information as a whole does not advise him adequately of what he has to meet. Not only in civil, but in criminal, proceedings we demand nothing more than that a party charged shall be told the facts fully enough, and in sufficient season, to enable him to present his defence. Inconsistencies between allegation and proof, and inadequacies in allegation, are unimportant unless they result in some such prejudice. Our latest decisions upon the point are United States v. Achtner, 2 Cir., 144 F.2d 49; United States v. Pape, 2 Cir., 144 F.2d 778; and United States v. Wodiska, 2 Cir., 147 F.2d 38. In so far as the decisions in United States v. Johnson, D.C., 53 F.Supp. 167 and United States v. Ferranti, D.C.N.J., 59 F.Supp. 1003, are to the contrary, they do not represent the law of this circuit.

The second objection is that the witnesses, called to testify to the maximum prices fixed by the Price Administrator, were allowed to state their bare conclusions, based upon the regulations. Had the defendant been willing to rely upon his objection to this testimony, and had the record contained nothing more as to the maximum prices, it might indeed have been a serious question whether the conviction could stand. We have, indeed, no disposition to abate what we said in Central R.R. Co. of New Jersey...