United States v. McDonald

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Citation293 F. 433
PartiesUNITED STATES v. McDONALD.
Decision Date06 October 1923

293 F. 433

UNITED STATES
v.
McDONALD.

United States District Court, D. Minnesota, Fifth Division.

October 6, 1923


[293 F. 434]

James A. Wharton and W. F. Dacey, both of Duluth, Minn., for petitioner.

Lafayette French, Jr., U.S. Dist. Atty., of St. Paul, Minn.

McGEE, District Judge.

The information filed on May 1, 1923, by the district attorney, charges the defendant with having made a sale of intoxicating liquor in a soft drink parlor conducted by him at 215 West Michigan street, in the city of Duluth, Minn., on November 12, 1922, and with having had intoxicating liquor in his possession at the same place on the 22d of the same month, both in violation of the provisions of the National Prohibition Act.

The case was tried on the 18th and 19th of July, 1923, and resulted in a verdict of guilty on both counts. A motion for a new trial was made and denied on the 27th day of August, 1923.

There was no motion to quash the information, no demurrer, or motion in arrest of judgment.

The case is now before me on petition for allowance of a writ of error and supersedeas.

Counsel for the defendant contends: First, that writs of error issue practically as a matter of course; and, second, that on the showing made herein defendant is entitled to a writ of error as a matter of right.

That a writ of error is not a writ of right, and does not issue as a matter of course, must be regarded as well settled. The direct result of following the practice first suggested by counsel is to unnecessarily and improperly increase the burdens of the appellate court with cases that never ought to reach that tribunal; and at the same time in criminal cases to practically permit defendants convicted of crime to be at large for a year or more after sentence has been imposed and judgment has been entered.

There is uniformity of opinion among those who have given much thought to the subject, that the much-talked of 'crime wave,' supposed to pervade the United States to-day, is due in a considerable measure to lack of promptness and vigor in the enforcement of the criminal laws; and, by many, responsibility therefor to some extent is, justly or unjustly, placed on the courts. [293 F. 435]

I think it is a fair statement of the rule, deducible from an examination of the law on the subject, that it is in the discretion of the judge to whom application is made to allow a writ or deny it; and if he allows it, it is also in his discretion whether or not he will stay the execution of sentence pending the determination of the proceedings in the appellate court. Of course, this discretion is a legal one; and in its exercise, the defendant should have the benefit of any substantial doubts arising upon the questions presented by the record. If, upon the errors complained of, there be any substantial doubt or room for fair debate, the defendant should not be denied the opportunity to have the benefit of the deliberate judgment of the appellate court upon the rulings of the District Court, if those rulings have affected the judgment and sentence of that court; and, in such case, the proceedings under the sentence should be stayed. Mackin v. U.S.(C.C.) 23 F. 339.

But when a petition for a writ of error with an assignment of errors, as required by Rule 11 of the Circuit Court of Appeals (150 F. xxvii, 79 C.C.A. xxvii) is presented with an application for the allowance of a writ, and it is apparent to the judge to whom application is made, from an examination of the same and of the bill of exceptions, where a bill of exceptions has been settled and allowed, that every question which the record would present for the determination of the appellate court, if a writ were allowed, has been determined adversely to the petitioner, by well-settled principles of law, and particularly by decisions of the Supreme Court of the United States or the Circuit Court of Appeals of this circuit, then the judge in such case, not only has the right, but it is his positive duty, to refuse the writ.

This, it would seem, has been made very clear by the Circuit Court of Appeals in its opinions construing Rule 11 of the rules of that court. Sovereign Camp v. Jackson (C.C.A. 8) 97 F. 382, 38 C.C.A. 208; Frame v. Portland Gold Mining Co. (C.C.A. 8) 108 F. 750, 47 C.C.A. 664; Webber v. Mihills (C.C.A. 8) 124 F. 64, 59 C.C.A. 578; Simpson v. First Nat. Bank (C.C.A. 8) 129 F. 257, 261, 63 C.C.A. 371.

In Frame v. Portland Gold Mining Co., supra, Judge Sanborn, speaking for the court, said:

'Rule 11 of this court * * * provides that 'the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal an assignment of errors which shall set out separately and particularly each error asserted and intended to be urged No writ of error or appeal shall be allowed until such assignment of errors shall have been filed.' This is a just and reasonable rule. It makes the filing of the assignment of errors before the writ is allowed indispensable to its issue, to the end that the judge to whom application is made for its allowance may be informed what the alleged errors are upon which the petitioner relies, and may thus intelligently decide whether or not the prayer of his petition should be granted, and also to the end that the opposing counsel and the appellate court may be informed what questions of law are raised for consideration.'

In Simpson v. First National Bank, supra, in an opinion by Judge Sanborn, it is said:

'In actions at law the assignment of errors must be filed and presented to the judge before the writ of error is issued or allowed, because he must determine, [293 F. 436] from an examination of it and of the petition for the writ, whether or not they set forth any substantial grounds for the issue of the writ.'

There are 16 errors assigned, and all but the first, second, and sixteenth must, in order to be considered by the appellate court, rest upon exceptions properly saved in a bill of exceptions; and whether that has been done will be considered after disposing of the three assignments of error mentioned.

The first assignment of error is that--

'The court erred in permitting an information to be filed in this case by the district attorney without receiving proof or affirmation justifying the issuance of such information.'

This assignment of error rests upon the assumption that the information was filed as a basis for a warrant of arrest. An examination of the information is all that is necessary to dispose of this point. It recites upon its face that--

The United States attorney, 'with leave of court first had and obtained, files this information, and gives the court to understand and to be informed as follows, as appears from a complaint made under oath and transcript of proceedings held before Hubert H. d'Autremont, a commissioner for the District Court aforesaid, and on file in this court, and who after examination of the charge found that there was probable cause to hold the defendant to bail.'

It is thus apparent that the information was not filed as the basis for a warrant of arrest. On its face, the information discloses that the defendant, prior to the time it was filed, had been arrested, taken before a court commissioner, had a preliminary examination, and that the commissioner found there was probable cause to hold him to bail, all of which appeared from a transcript of the proceedings before the commissioner then on file in the District Court, and was the basis for the filing of the information.

It is only when an information is filed as a basis for a warrant of arrest that it is necessary that the same be supported by the oath or affirmation of a person having knowledge of the facts. It is well settled in such case that allegations on information and belief are not sufficient. U.S. v. Tureaud (C.C.) 20 F. 621; U.S. v. Polite (D.C.) 35 F. 58; Johnston v. U.S. (C.C.A. 5) 87 F. 187, 30 C.C.A. 612; U.S. v. Baumert (D.C.) 179 F. 735; U.S. v. Wells (D.C.) 225 F. 320; U.S. v. Michalski (D.C.) 265 F. 839.

If the information is not made the basis of a warrant of arrest, it need not be verified, nor supported by an affidavit showing probable cause. Weeks v. U.S., 235 U.S. 697, 35 Sup.Ct. 199, 59 L.Ed. 431; Weeks v. U.S.(C.C.A. 2) 216 F. 292, 132 C.C.A. 436, L.R.A. 1915B, 651, Ann. Cas. 1917C, 524; U.S. v. Adams Express Co. (D.C.) 230 F. 531; Creekmore v. U.S.(C.C.A. 8) 237 F. 743; Simpson v. U.S.(C.C.A. 6) 241 F. 841, 154 C.C.A. 543; Abbott Bros. Co. v. U.S.(C.C.A. 7) 242 F. 751, 155 C.C.A. 339; Brown v. U.S. (C.C.A. 9) 257 F. 703, 168 C.C.A. 653; De Four v. U.S.(C.C.A. 9) 260 F. 596, 171 C.C.A. 360; U.S. v. Newton Tea & Spice Co. (D.C.) 275 F. 394; Yaffee v. U.S.(C.C.A. 6) 276 F. 497. [293 F. 437]

If the information in this case had been filed without any foundation whatever being laid therefor, and the purpose of filing it was to procure the issuance of a warrant of arrest, the defendant, by proceeding to trial without objection, waived the point. Simpson v. U.S.(C.C.A. 6) 241 F. 841, 154 C.C.A. 543; Abbott Bros. Co. v. U.S.(C.C.A. 7) 242 F. 751, 155 C.C.A. 339; Wilson v. U.S.(C.C.A. 2) 275 F. 307, 311.

In Simpson v. U.S., supra, the information was assailed as insufficient in law. The points made were: First, that it was not sworn to; and, second, that the supporting affidavits were invalid because made before notaries public. The court said:

'We need not consider whether the objection would have been good had it been made in the court below. Defendant in fact pleaded not guilty to the information, without demurring or moving to quash, and the record does not indicate that the attention of the district court was ever directed to the alleged insufficiency of the information. Unless it was void, the question presented cannot for the first time be raised in the appellate
...

To continue reading

Request your trial
11 practice notes
  • May v. United States, No. 9610-9612.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 24, 1949
    ...231, 238, 82 F.2d 837, 844, certiorari denied, 1936, 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1382; United States v. McDonald, D.C.Minn.1923, 293 F. 433, 441; Walton v. Wild Goose Mining & Trading Co., 9 Cir., 1903, 123 F. 209, 221, certiorari denied, 1904, 194 U.S. 631, 24 S. Ct. 856, 48 L.Ed.......
  • United States v. Dressler, No. 7171.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 28, 1940
    ...2 F.2d 849; McIntosh v. United States, 7 Cir., 1 F.2d 427; Noble v. United States, 9 Cir., 300 F. 689; United States v. McDonald, D.C., 293 F. 433; Collins v. United States, 8 Cir., 219 F. 670; Allen v. United States, 7 Cir., 4 F.2d 688, certiorari denied Mullen v. United States, 267 U.S. 5......
  • Albrecht v. United States, No. 9
    • United States
    • United States Supreme Court
    • January 3, 1927
    ...Brown v. United States (C. C. A.) 257 F. 703; United States v. Newton Tea & Spice Co. (D. C.) 275 F. 394; United States v. McDonald (D. C.) 293 F. 433; Vollmer v. United States (C. C. A.) 2 F.(2d) 551; Wagner v. United States (C. C. A.) 3 F.(2d) 864; Poleskey v. United States (C. C. A.) 4 F......
  • Tinkoff v. United States, No. 5471.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 15, 1937
    ...judge whether he will stay the sentence. To the same effect are United States v. Gibson (D.C.) 188 F. 396; United States v. McDonald (D.C.) 293 F. 433. In Cyclopedia of Federal Procedure, vol. 5, § 2507, the author, after reviewing the authorities, says that the allowance of a supersedeas u......
  • Request a trial to view additional results
11 cases
  • May v. United States, No. 9610-9612.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 24, 1949
    ...231, 238, 82 F.2d 837, 844, certiorari denied, 1936, 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1382; United States v. McDonald, D.C.Minn.1923, 293 F. 433, 441; Walton v. Wild Goose Mining & Trading Co., 9 Cir., 1903, 123 F. 209, 221, certiorari denied, 1904, 194 U.S. 631, 24 S. Ct. 856, 48 L.Ed.......
  • United States v. Dressler, No. 7171.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 28, 1940
    ...2 F.2d 849; McIntosh v. United States, 7 Cir., 1 F.2d 427; Noble v. United States, 9 Cir., 300 F. 689; United States v. McDonald, D.C., 293 F. 433; Collins v. United States, 8 Cir., 219 F. 670; Allen v. United States, 7 Cir., 4 F.2d 688, certiorari denied Mullen v. United States, 267 U.S. 5......
  • Albrecht v. United States, No. 9
    • United States
    • United States Supreme Court
    • January 3, 1927
    ...Brown v. United States (C. C. A.) 257 F. 703; United States v. Newton Tea & Spice Co. (D. C.) 275 F. 394; United States v. McDonald (D. C.) 293 F. 433; Vollmer v. United States (C. C. A.) 2 F.(2d) 551; Wagner v. United States (C. C. A.) 3 F.(2d) 864; Poleskey v. United States (C. C. A.) 4 F......
  • Tinkoff v. United States, No. 5471.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 15, 1937
    ...judge whether he will stay the sentence. To the same effect are United States v. Gibson (D.C.) 188 F. 396; United States v. McDonald (D.C.) 293 F. 433. In Cyclopedia of Federal Procedure, vol. 5, § 2507, the author, after reviewing the authorities, says that the allowance of a supersedeas u......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT