Armstrong v. United States, 16 F.2d 62 (9th Cir. 1926)

*63 William F. Herron, of San Francisco, Cal., for plaintiff in error.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.

NETERER, District Judge (after stating the facts as above).

It must be obvious *64 that the bill of exceptions to the proceeding on the old information, before this court in Jacobs et al. v. U. S. (C. C. A.) 8 F. (2d) 981, can serve no purpose on this appeal. The filing of the new information by the court's permission destroyed all functions of the old information as fully as though it had been dismissed by formal motion. State v. Hoffman, 70 Mo. App. 271.

The so-called "amended" information was in fact a new information, filed in the old case against the defendant alone, supported by affidavit of a person other than the affiant in the old information. The new information had the same solemnity and contained every requisite of an original information. Even if considered as "amended," it was the official act of the United States attorney, and, not being founded upon the oath of a grand jury, it may be amended in either form or substance. United States v. Evans, 25 Fed. Cas. 1034, No. 15,063; United States v. Shuck, 27 Fed. Cas. 1072, No. 16,285; Virginia v. Smith, 28 Fed. Cas. 1225, No. 16,965.

When an information is amended, the original information is thereby set aside and abandoned. Brown v. State, 5 Okl. Cr. 567, 115 P. 615; Harris v. State, 9 Okl. 658, 132 P. 1121; State v. Hoffman, supra. An information, being the official act filed under the oath or certificate of the United States attorney, is differentiated from an indictment, in that an indictment is returned under oath by the grand jury, and it may only be superseded by an indictment of equal solemnity. Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849.

There was no error in denying the motion to quash. There was no misjoinder of offenses. Count 2 charges the maintaining of a nuisance by unlawfully manufacturing intoxicating liquor, and count 3 the maintaining of a nuisance by keeping for sale on the premises of intoxicating liquor. The United States attorney had a right to charge the maintenance of a nuisance in different counts on different facts. Different testimony was required for a conviction on these counts. The testimony might be sufficient on one count and insufficient upon the other. No motion was made to elect after the government closed its case, or at the conclusion of the trial; but that is immaterial, since sentence was passed only upon one of the controverted counts. This was a permissible sentence for the offense charged. "Where conviction is had upon more than one count, the sentence, if it does not exceed that which might be imposed on one count, is good, if that count is sufficient." Kuehn v. United States (C. C. A.) 8 F.(2d) 265. See, also, Koth v. United States (C. C. A.) 16 F.(2d) 59, just decided.

Nor was the defendant twice placed in jeopardy by trial upon the new information. There was no finality of any previous adjudication. See Commonwealth v. Ellis, 101 Mass. 125; United States v. Oppenheimer, 242 U.S. 85, 37 S. Ct. 68, 61 L. Ed. 161, 3 A. L. R. 516.

Primarily the defendant was engaged in supplying the public with distilled spirits contrary to law. He had in stock 395 gallons. Whether the court committed prejudicial error in admitting in evidence the stills, etc., is not apparent, since the record fails to include the testimony that was introduced at the trial. No objection was made to the testimony of the witness Powers of finding "four copper stills, two of them still warm, and 395 gallons of so-called `jackass brandy' in whisky barrels." This testimony is not denied, and is conclusive of guilt on counts 3 and 4, the only counts with which we are concerned. See Horning v. United States, 254 U.S. 135, 41 S. Ct. 53, 65 L. Ed. 185; Williams v. United States (C. C. A) 265 F. 625.

This testimony being before the court without objection as to the finding of the stills, the condition in which they were found, the temperature disclosed, the 395 gallons of liquor which the witness saw, when the record further discloses that "thereafter certain other witnesses were sworn and testified for the government and for the defendant," even though we should conclude that the stills and the liquor were erroneously received, there is nothing before the court to show that this act, if error, is in any sense prejudicial to the defendant.

No other objection or motion in the record challenges the sufficiency of the evidence to support the verdict. Every requisite of proof was before the court, and under section 269, Judicial Code as amended, 40 Stat. 1181 (Comp. St. § 1246), the plaintiff in error has not shown that he was denied a "substantial right." No objection was made in the proceeding under the new information, nor was the search challenged in the proceeding under the new information, until the still was offered in evidence. This was not timely. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Agnello v. United States (C. C. A.) 290 F. 672.

*65 Nor does the record show that the defendant made any claim either to the premises searched or the property seized, and in the absence of such claim, cannot urge unreasonable search upon which to base a constitutional right. See Lewis et al. v. United States (C. C. A.) 6 F.(2d) 222. The intent of section 269, supra, as amended, is that the complaining party must show that he was denied a substantial right. Haywood v. United States (C. C. A.) 268 F. 795. Williams v. United States (C. C. A.) 265 F. 625. This he has not done.

The judgment is affirmed.

[*] Rehearing denied January 31, 1927.