WEEKS v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit, June 18, 1914.)

Office of the Solicitor, Circular No. 81.

The fourth amendment to the Constitution of the United States, which provides that "no warrants shall issue but upon probable cause, supported by oath or affirmation," held not to require an information filed by a United States attorney alleging violation of the Federal Food and Drugs Act to be supported by the oath or affirmation of any person having knowledge of facts showing probable cause for the prosecution, where the defendant voluntarily appeared and answered the allegations of the information, and no warrant of arrest was issued on said information.

Evidence held sufficient to warrant the trial court in submitting to the jury the question of fact as to whether an article labeled: "Creamthick ***. It is guaranteed to contain no gelatine, gum arabic, egg albumen, or similar article," was misbranded because it contained Indian gum, which was alleged to be a "similar article" to gum arabic.

In Error to the District Court of the United States for the Southern District of New York. Affirmed.1

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. The information charged the defendant with having shipped from New [2] York City to St. Louis, Mo., a certain article of food, labeled in part as follows:

"Creamthick-Serial No. 2049—Manufactured by O. J. Weeks & 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, Indian 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 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-although in the colonies as well as in England various statutes had abolished, prior to the Declaration of Independence, a number of the oppressive provisions of English law relating to criminal trials. Among the principles which had thus been abrogated, [3] 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 his defense, except only as regarded questions of law. (See United States v. Reid, 12 How., 360, 363 (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 abolished. 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

1 Affirming United States v. Weeks, p. 643, ante.

of which were the sole judges of the law, the fact and the penalty, Blackstone (4 Commentaries, 310) states that 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." 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 this process 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., 130; 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 Univertity of Pennsylvania in 1790-1792, 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. [4] 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 can not be slipped but by leave of the court. By that 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.'" (2 Wilson's Works, Andrews ed., p. 450.)

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, section 1780, and written 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.)

It appears, as Stephens states in his History of the Criminal Law, volume 1, page 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 the right has been established in England to prosecute by information and without the sanction of a grand jury a person charged with having committed a misdemeanor.

[5] Bacon in his Abridgement, volume 3, page 635, after stating that an information differs principally from an indictment in that "an indictment is an accusation founded 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 immediately against the King, was filed, he says, by the attorney general, ex officio, and without leave of court. The second, which was for offenses against private individuals, was exhibited by masters of the Crown, and, as matter of course, prior to the statute of 4 and 5 William and Mary, c. 18. But after that statute was enacted informations of the second class, he declares, could not be filed except upon leave of court, and all such informations had to be supported by the affidavit of the person at whose suit it was filed.

In the United States it has been suggested that informations brought by the prosecuting officers answer to the informations filed by the masters of the Crown and which, as said, had to be supported by affidavit and not to the informations of the first class or those which related more immediately to the King and which could be filed without affidavit. Those who make this suggestion rely upon the statement found in Blackstone's Commentaries, volume 4, page 309, where that distinguished commentator says:

"The objects of the King's own prosecutions, filed ex officio by his own attorney general, are properly such enormous misdemeanors as peculiarly tend to disturb or endanger his Government, or to molest or affront him in the regular discharge of his royal functions. For offenses so high and dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the Crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal; which power, thus necessary, not only to the ease and safety, but even to the very existence of the executive magistrate, was originally reserved in the great plan of the English constitution, wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of informations filed by the master of the Crown office upon the complaint or relation of a private subject, are any gross and notorious misdemeanors, riots, batteries, libels, and other immoralities of an atrocious kind, not peculiarly tending to disturb the Government (for those are left to the care of the attorney general), but which, on account of their magnitude or pernicious example, deserve the most public animadversion."

Now, this statement may seem to imply that the attorney general's right to file informations for misdemeanors was not unlimited, but was restricted to misdemeanors which tended to disturb or endanger the Government. But if this was his meaning it is evident that he was mistaken in his understanding of the law. Chitty in his great work on the Criminal Law, page 384, says:

"Informations may be filed by the attorney general for any offense below the dignity of felony, which tends, in his opinion, to disturb the Government or immediately interfere with the interests of the public or the safety of the Crown. He most frequently [6] exercises this power in cases of libels on Governments or high officers of the Crown, etc. He seems, indeed, at his option to exact it when any offense occurs which may thus be prosecuted in the Crown office. He may file an information against any one whom he thinks proper to select, without oath, without motion or opportunity for the defendant to show cause against the proceeding.'

And Cole, in his work on Criminal Informations, page 9, says that

"The attorney general may exhibit an ex officio information for any misdemeanor whatever."

And Hawkins, in his Pleas of the Crown, volume 2, page 369, says:

"As to the first of these particulars, viz: In what cases such informations lie, it hath been holden, that the King shall put no one to answer for a wrong done principally to another, without an indictment or presentment, but that he may do it for a wrong done principally to himself. But I do not find this distinction confirmed by experience; for it is everyday's practice, agreeable to numberless precedents, to proceed by way of information, either in the name of the attorney general or of the master of the Crown office, for offenses of the former kind, as for batteries, cheats, seducing a young man or woman from their parents in order to marry them against their consent, or for any other wicked purpose; spiriting away a child to the plantations, rescuing persons from legal arrests, perjuries and subornations thereof, forgeries, conspiracies, whether to accuse an innocent person or to impoverish a certain set of lawful traders * ** and other such like crimes done principally to a private person, as well as for offenses done principally to the King."

In Clark on Criminal Procedure, pages 128 and 129, it is said:

"By an early English statute (4 and 5 William and Mary, c. 18), however, which is old enough to have become a part of our common law, if applicable to our conditions,

it was provided that informations by masters of the Crown office could only be filed by leave of court and that they should be supported by the affidavit of the person at whose suit they were preferred. The law remained that informations filed by the attorney general (and as already stated he could file them for any misdemeanor) need not be verified and that he was the sole judge of the necessity or propriety of filing them. * There is some authority for the proposition that the kind of information to be used at common law in this country is that which in England was filed by the masters of the Crown office. But by the better opinion, the other

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kind of information is the one in use with us."

In Bishop's Criminal Procedure, section 144. it is said:

"In our States the criminal information should be deemed to be such, and such only, as in England is presented by the attorney or solicitor general. This part of the English common law has plainly become common law with us. As with us, the powers which in England were exercised by the attorney or solicitor general are largely distributed among our district attorneys, whose office does not exist in England, the latter officers would seem to be entitled, under our common law, to prosecute by information, as a right adhering to their office and without leave of court."

If it is true, and it seems to be, that the district attorneys exercise the powers which in England were exercised by the attorney or solicitor general, then they are entitled to proceed upon information, and that without leave of the court and without affidavit. It is necessary to keep in mind what Mr. Stephen, in his General View of the Criminal Law of England, page 156, calls the "most [7] characteristic principle of the law of England" on the subject of criminal procedure, namely, that in that country "everyone, without exception, has the right to use the Queen's (King's) name for the purpose of prosecuting any person for any crime." The statute (4 and 5 William and Mary, c. 18) was intended to restrict the right of prosecution by private and not public prosecutors. Prior to that act it had been within the power of any individual to file an information without disclosing to the court the grounds upon which it was exhibited. (4 T. R. 290.) And the meaning of the statute was that the clerk of the Crown should thereafter file no information of a private prosecutor without leave of the court, and that the fact that there was probable cause for filing it should be disclosed in order that the court might know whether to grant leave, and it was further intended to preclude the issuance of process on such informations without recognizance. (Comyn's Digest, vol. 4, p. 558, note.) But there was no intention to limit the right of the attorney general to prosecute by information as he always has done. It was not necessary in England either before or after the statute that he should obtain leave of the court before filing his information and there was, therefore, not the same reason why he should verify any information which he filed. Moreover, he was acting throughout under his oath of office and it was not assumed that he would proceed upon information without probable cause.

We think that the weight of authority is that in this country, as the text writers assert, the informations used by the prosecuting officers are the informations used by the attorney general in England and not those exhibited by masters of the Crown and which were governed by 4 and 5 William and Mary, c. 18. And as at common law an information could be filed by the attorney general simply on his oath of office and without verification, it has been held in this country that verification of an information by a prosecuting attorney is unnecessary unless required by some constitutional or statutory provision. (Long. v. People, 135 Ill., 435; People v. Graney, 91 Mich., 646: State v. Pohl, 170 Mo., 422, 22 Cyc., 281.)

We pass, therefore, to inquire whether there is anything in the Constitution of the United States or in the acts of Congress which in any way alters the common law respecting the right of the prosecuting officers of the Government of the United States to proceed by information in criminal cases in the Federal courts.

The Constitution of the United States leaves all offenses against the United States open to prosecution by information except those which are capital or infamous. The restriction as to those offenses is contained in the fifth amendment:

"No persons shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger." [8] The Supreme Court in ex parte Wilson (144 U. S., 417 [1885]) authoritatively decided what meaning is to be attached to the word "infamous" in this connection. The court held that a crime punishable by imprisonment for a term of years with hard labor is an infamous crime. In the constitutional sense it is not the character of the crime, but the nature of the punishment which renders the crime infamous. The offense with which the defendant in this case is charged is not an infamous one, but one upon which he might be tried upon information.

The acts of Congress not only have not prohibited the use of informations, but have on the contrary expressly authorized their use in certain cases. (See sec. 1022 of the Revised Statutes.)

The fourth amendment to the Constitution of the United States provides as follows, "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; no warrant shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

Mr. Justice Story, in his Commentaries on the Constitution, volume 2, section 1902, in speaking of this amendment, states that:

"It is little more than the affirmance of a great constitutional doctrine of the common law."

If that be true and if it also be true that at common law the Attorney General could file an information without verification or affidavit of probable cause, his oath of office being regarded as sufficient, then this particular amendment should not be regarded as altering the rule upon that subject. In United States v. Maxwell (3 Dillon, 257 [1875]), in an opinion written by Judge Dillon, it is said:

"We are of the opinion, therefore, that offenses not capital or infamous may, in the discretion of the court, be prosecuted by information. We can not recognize the right of the district attorney to proceed on his own motion and shall require probable cause of guilt to appear by the oath of some credible person before we will allow an information to be filed and a warrant of arrest to issue. But with these safeguards there is no more reason to fear an oppressive use of information than there is reason to fear an abuse of the powers of a grand jury."

The facts in the case were that prior to the term complaint on oath had been made before a United States commissioner charging the defendant with several violations of the internal-revenue laws, and the defendant was arrested upon a warrant issued by the commissioner and held to answer to the district court. At the term, the district attorney, upon the said complaint, warrant, and recognizance, moved the court for leave to file criminal information against the defendant, charging him with said offenses, which leave was granted and the information accordingly filed. The defendant appeared and pleaded guilty. Afterwards his counsel made a motion in arrest of judg[9]ment upon the ground that the defendant could only be punished criminally upon an indictment and not upon an information. The motion in arrest of judgment was overruled, the court using, in the course of its opinion, the language already quoted. The case can not be regarded as holding that an information must be verified. The court, in a dictum, announced that it would not permit an information to be filed and a warrant of arrest to issue without some evidence being presented under oath that probable cause of guilt existed.

In United States v. Smith (40 Fed., 755 [1889]), in a case which arose in the Circuit Court for the Eastern District of Virginia, Judge Hughes said:

"A preliminary question raised in the argument was whether the district attorney may, of right, by virtue of his official prerogative, file informations charging citizens with offenses brought officially to his knowledge. This can not be done, under the rules and practice of this court, except upon previous complaint under oath, after opportunity has been given the accused to appear before the examining officer and to confront the witnesses testifying in support of the complaint. This requisite makes it necessary that the district attorney shall have leave from the court to file an information; and, if it is within the discretion of the court to grant the leave or not, then the right to file is not a prerogative of the prosecutor's office, and the court may require him before granting leave to bring the accused, by rule or other proceeding, before the court to show cause, if cause there be, against the filing of the information."

The decision does not hold that an information must be verified.

The case most frequently cited in the Federal courts on this subject is that of United States v. Tureaud (20 Fed., 621), decided in 1884 in the fifth circuit by Judge Billings, of the eastern district of Louisiana. It was decided in that case that informations must be based upon affidavits which show probable cause arising from facts within the knowledge of the parties making them. And the court quashed an information which was based on an affidavit which read:

"George A. Dice, being duly sworn, says: All the statements and averments in the foregoing information are true, as he verily believes."

It was conceded

"that under the usages of the Government of Great Britain this information belongs to the class of formal accusations which could be made by the King in his courts without any evidence and against all evidence."