Yaffee v. United States

• Citation: 276 F. 497
• Decision Date: 08 November 1921
• Docket Number: 3548.
• Parties: YAFFEE v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

276 F. 497

YAFFEE v. UNITED STATES.

No. 3548.

United States Court of Appeals, Sixth Circuit.

November 8, 1921

Harry Hess, of Cincinnati, Ohio (Harry Hess, of Cincinnati, Ohio on the brief), for plaintiff in error.

R. T Dickerson, Asst. U.S. Atty., of Cincinnati, Ohio (James R Clark, U.S. Atty., of Cincinnati, Ohio, on the brief), for the United States.

On the 2d day of October, 1920, the United States attorney for the Southern district of Ohio, having first obtained leave for that purpose from the United States District Court for the Southern District of Ohio, Western Division, filed in that court an information, the first count of which charged George Yaffee with unlawfully selling and furnishing intoxicating liquor. The second count charged him with unlawful possession of intoxicating liquor.

For the purpose of obtaining leave from the court to file such information and in support thereof, the district attorney also filed the affidavit of W. J. Meininger, a federal prohibition agent, which affidavit stated that the affiant had actual personal knowledge as to the truth of the matters and things set forth in the information, and that the information is true in substance and fact.

The defendant George Yaffee thereupon filed a motion to strike this information from the file for the reason 'that the filing of the information herein was contrary to law, in that, as the punishment for the offense may include imprisonment, no information or leave to file can be legally secured, without notice of the intention to file such information has been given the defendant. ' This motion was overruled by the court, to which ruling the defendant then and there excepted.

Defendant thereupon filed another motion to dismiss this information, which motion reads as follows: 'And now comes the defendant and represents to the court that he was during the present term of this court arrested on the same charge which the present information calls upon him to answer and stand trial upon, and that said arrest was before Hon. Joseph Alder, late commissioner of this court, and that he was bound over to the grand jury, and gave bond to await the action of the grand jury, that said grand jury has neither returned an indictment nor ignored said charge, and that the information filed herein, was filed without notice to him, and he hereby moves the court to dismiss all proceedings under said information for the following

cause: that the filing of said information was without authority of law and contrary to law; that the court has no jurisdiction to hear and determine said charge until after the grand jury has made its final report to this court. ' This motion was also overruled by the court, to which ruling the defendant then and there excepted. The defendant thereupon entered a plea of not guilty.

Upon the issue joined by the information and the plea the jury found the defendant guilty in manner and form as charged in the first count. A motion for new trial was overruled, and sentence was pronounced against the defendant.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge (after stating the facts as above).

The first motion to dismiss was properly overruled by the District Court for the reason that the offense charged in the information is not a capital or infamous crime, but is merely a misdemeanor for which, under the provisions of Amendment 5 of the federal Constitution, the accused may be prosecuted other than upon presentment or indictment by a grand jury. Ex parte Wilson, 114 U.S. 417, 5 Sup.Ct. 935, 29 L.Ed. 89; U.S. v. Lindsay-Wells Co. (D.C.) 186 F. 248; U.S. v. Quaritius (D.C.) 267 F. 227; U.S. v. Achen (D.C.) 267 F. 595; U.S. v. Baugh (C.C.) 1 Fed. 784-787.

There is no averment in the second motion to dismiss the information that the grand jury was in session at the time the information was filed. However, it does appear, if that fact is important, that this information was filed on the 2d day of October, 1920, and that the grand jury was not impaneled until October 5th of that year. State v. Anderson, 252 Mo. 83, 158 S.W. 817.

The fact that defendant was arrested on a complaint before the information was filed is no ground for dismissing the information. Evans v. State, 36 Tex.Cr.R. 32, 35 S.W. 169. Nor, in the absence of a statute to the contrary, is the right to file an information affected by the fact that the grand jury is in session. State v. Cole, 38 La.Ann. 843.

The right of the district attorney to file an information is not an absolute or unqualified right. Before doing so he must secure leave of the court.

Where it appears to the court by the affidavit filed therewith by the district attorney that probable cause exists for the filing of such information, the court in its discretion may grant such leave, and its order cannot be reversed except for an abuse of discretion. This motion presents no question of abuse of discretion, but, on the contrary, it is based upon the theory that the court, upon the state of facts then existing, had no authority to exercise any discretion, and that the filing of this information was without authority of law and contrary to law.

In the prosecution of an offense other than an infamous crime, the accused has no constitutional right to object to a prosecution by information instead of by indictment. The order of the commissioner discharging the accused or the failure of the grand jury to indict would not prevent the district attorney from filing an information charging the same offense charged in the complaint before the commissioner and investigated by the grand jury. The defendant of course cannot twice be put in jeopardy for the same offense, but the defendant is fully protected in that right even though a grand jury should return an indictment against him for the same offense before or after the trial upon the information. Therefore the filing of an information at any time in the course of a criminal prosecution, either while a hearing upon a complaint charging the same offense is pending before the commissioner or after such...