Weeks v. United States, 180.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation216 F. 292
Docket Number180.
Decision Date18 June 1914

216 F. 292


No. 180.

United States Court of Appeals, Second Circuit.

June 18, 1914

Walter Jeffreys Carlin, of New York City, for plaintiff in error.

H. Snowden Marshall, U.S. Atty., of New York City (Robert Stephenson, of New York City, of counsel), for the United States.

Before COXE, WARD, and ROGERS, Circuit Judges.

ROGERS, Circuit Judge.

The defendant has been convicted of a crime committed in violation of the Pure Food and Drugs Act, approved June 30, 1906 (Act June 30, 1906, c. 3915, 34 Stat. 768 (U.S. Comp. St. Supp. 1911, p. 1354)). The information charged the [216 F. 293] defendant with having shipped from New York City to St. Louis, Mo., a certain article of food, labeled in part as follows:

'Cream thick-- Serial No. 2049-- Manufactured by O. J. Weeks &amp Co., New York, New York. It is guaranteed to contain no gelatine, gum arabic, egg albumen or similar article.'

This label, it was charged, was false and misleading and calculated to mislead and deceive purchasers in that the article of food contained as one of its ingredients an article similar to gum arabic, to wit, India gum. The information was signed by the United States Attorney, but was not verified, nor were any affidavits filed or submitted to the court. The defendant appeared and demurred to the information, and in specification of points under his demurrer alleged:

'That the said information is not supported by a verification or oath showing personal knowledge or probable cause.'

His demurrer was overruled, and, being required to plead, he pleaded not guilty. At the close of the trial his counsel renewed his motion that the information be dismissed for reasons before stated, but his motion was denied, and the case was submitted to the jury, and a verdict of guilty was rendered.

The question we have to decide, therefore, is whether an attorney for the United States can proceed in the courts of the United States by information to prosecute one who is alleged to have committed a misdemeanor, where the information is not verified or supported by an affidavit showing personal knowledge or probable cause.

There can be no conviction or punishment for a crime without a formal and sufficient accusation. A court can acquire no jurisdiction to try a person for a criminal offense unless he has been charged with the commission of the particular offense and charged in the particular form and mode required by law. If that is wanting, his trial and conviction is a nullity, for no person can be deprived of either life, liberty, or property without due process of law. The forms or modes of accusation which the law recognizes are: Indictment or presentment by a grand jury; and information by the public prosecutor.

The colonists who came to this country from England brought with them the common and statute laws of England as they existed at the time of their emigration and in so far as they were applicable to the local circumstances of the colonies which they established. Among the principles of the common law which they thus brought were those which regulated the mode of proceeding in criminal cases: The law relating to indictments and informations and the right to trial by jury. Prior to the Declaration of Independence, various statutes had abolished in the colonies as well as in England a number of the oppressive provisions of English law relating to criminal trials. Among the principles which had thus been abrogated, for example, was that which denied to a person accused of a capital crime the right to have compulsory process for his witnesses, and that which withheld from him the right to examine on oath those witnesses who voluntarily appeared for him, as well as that which forbade him the aid of counsel in [216 F. 294] his defense, except only as regarded the questions of law. See United States v. Reid, 12 How. 361, 363, 13 L.Ed. 1023 (1851).

The proceeding by information is said to have been unpopular in England and to some extent in the colonies. But it has never been abolished in England, although in some of our states it has been done. At the time of the Declaration of Independence it was a familiar mode of criminal procedure in all the colonies.

When the statute of 3 Henry VII extended the jurisdiction of the court of star chamber and informations became restricted in practice to that court, the members of which were the sole judges of the law, the fact, and the penalty, a very oppressive use was made of them for something more than a century, 'so as continually to harass the subject and shamefully enrich the crown.' 4 Blackstone, Comm. p. 310. And when the court of star chamber was abolished in the time of Charles I, and proceedings by information were again used in the Court of King's Bench, the prejudice which had arisen from the long abuse of informations was so strong that it was strenuously contended that all proceedings by information were illegal as being contrary to the nature of English laws and to Magna Charta. But the objections were overruled; Sir Matthew Hale saying:

'That although in all criminal cases the most regular and safe way, and most consonant to the statute of Magna Charta, is by presentation or indictment of 12 sworn men, yet, for crimes inferior to capital ones, proceedings might be by information, and this, from long and frequent practice, was certainly established as the law of the land.' 5 Mod. 463; Show. 106; Bacon's Ab., Information, A; 2 Hawk.P.C. 260; 4 Black.Com. 310; 1 Ersk. Speeches, 275; State v. Dover, 9 N.H. 468 (1838).

And the unpopularity of informations was not restricted to the mother country but, as we have already said, existed to some extent in this country. Mr. Justice Wilson of the Supreme Court of the United States, and who was also a member of the Constitutional Convention of 1787, in the lectures which he delivered as professor of law in the University of Pennsylvania in 1790-92, after calling attention to the two kinds of informations-- those filed ex officio by the public prosecutor and those carried on in the name of the commonwealth or crown but in fact at the instance of some private person or common informer-- said:

'The first have been the source of much; the second have been the source of intolerable vexation; both were the ready tools, by using which Empson and Dudley and an arbitrary star chamber fashioned the proceedings of the law into a thousand tyrannical forms. Neither, indeed, extended to capital crimes; but ingenious tyranny can torture in a thousand shapes without depriving the person tortured of his life.'

After calling attention to the fact that in England restraints had been imposed upon informations at the instance of private persons but not upon those filed ex officio by the public prosecutor, he went on to say:

'By the Constitution of Pennsylvania, both kinds are effectually removed. By that Constitution, however, informations are still suffered to live; but they are bound and gagged. They are confined to official misdemeanors; and even against those they cannot be slipt but by leave of the court. By that [216 F. 295] Constitution, 'no person shall, for any indictable offense, be proceeded against criminally by information,' 'unless by leave of the court, for oppression and misdemeanor in office.''

There seems to be no doubt that prosecution by information is as ancient as the common law itself. The subject had no reason to complain because this method of prosecution was adopted, for, as Blackstone (4 Commentaries, p. 310) states:

'The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had been by indictment.'

Moreover, it seems to have always been the rule that the substantial parts of the information had to be drawn with as much exactitude as the corresponding parts of an indictment for the same offense.

In the early years of the federal government, informations were principally used, if not exclusively used, for the recovery of fines and forfeitures. And Mr. Justice Story in his Commentaries on the Constitution, Sec. 1780, published in 1833, said, in speaking of informations:

'This process is rarely recurred to in America; and it has never yet been formally put into operation by any positive authority of Congress under the national government, in mere cases of misdemeanors, though common enough in civil prosecutions for penalties and forfeitures.'

But within the last 50 years prosecutions by informations have increased greatly in the federal courts. See Ex parte Wilson, 114 U.S. 417, 425, 5 Sup.Ct. 935, 29 L.Ed. 89.

It appears, as Stephens states in his History of the Criminal Law, vol. 1, p. 295, that from the earliest times the law officers of the king accused persons of offenses not capital in his own court without the intervention of a grand jury. But the right to prefer a criminal information is at common law restricted to misdemeanors.

'At common law any information will lie for any misdemeanor, but not for a felony.' 22 Cyc. 187, and cases there cited.

The offense charged in the information now under consideration was plainly a misdemeanor, and for more than 200 years in England the right has been established to prosecute by information, and, without the sanction of a grand jury, a person charged with having committed a misdemeanor.

Bacon in his Abridgment, vol. 3, 635, after stating that an information differs principally from an indictment in that 'an indictment is an accusation found by the oath of 12 men, whereas an information is only the allegation of the officer who exhibits it,' goes on to explain that there were two kinds of criminal informations in use in England under the common-law procedure. The first, which was for offenses more...

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