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The opinion then continued:

"But the adoption of the fourth amendment affected all kinds and modes of prosecution for crimes or offenses, for there can be no legal pursuit of accused persons without apprehension. All prosecutions require warrants. An information, a suggestion of a criminal charge to a court, is a vain thing unless it is followed by a capias. The procedure by information, therefore, after it was acted upon by this amendment fost its prerogative function or quality. It could not thereafter be the vehicle of preferring any arbitrary accusation-not by Kings-because we have in the department of criminal law no successor to him, so far as he represented a right to institute, [10] if it pleased him, unsupported incriminations, nor by the district attorney, nor any other officer of the United States, for the Constitution has said, in effect, that in no way nor manner shall magistrates or courts issue warrants, except upon proofs, which are to be upon oath and make probable excuse."

What is said as to the necessity for a verification of the information we think is correct in any case where the application for the issuance of a warrant of arrest is based on the information. In the United States v. Polite (35 Fed., 58 [1888]) in the district court for the district of South Carolina, it is said that

"informations must be based upon affidavits which show probable cause arising from facts within the knowledge of the parties making them, and that mere belief is not sufficient."

In this case the information was not sworn to, but accompanying it were the papers of the commissioner who held the preliminary examination, including the sworn testimony of the witnesses taken in the presence of the accused. It was held that this was sufficient, and a motion to quash was refused.

In Johnston v. United States (87 Fed., 187 [1898]) in the Circuit Court of Appeals for the Fifth Circuit the two preceding cases are referred to and approved. The information was not sworn to but was accompanied by an affidavit. The court said: "The affidavit on which the information was based was wholly insufficient to warrant the arrest and trial of the plaintiff in error and is altogether too general in terms as to the offense against the United States said to have been committed; and it shows no knowledge, information, nor even belief on the part of the affiant as to the guilt of the party charged, beyond the bare statement that there is probable cause to believe that the said offense has been committed by P. T. Johnston.' However false the affidavit may be it would be next to impossible to assign and prove perjury upon it." In the United States v. Baumert (179 Fed., 735, 742 [1910]) District Judge Ray in a carefully prepared opinion said:

"Under the common law the information was not necessarily verified; but, as stated, this led to abuses and the adoption of the fourth amendment to the Constitution, which in legal effect demands that no warrant shall issue upon an information filed by the United States attorney, unless it states facts, a crime, etc., and is supported by the oath of the officer filing it, who must speak from personal knowledge or by the oaths or affirmations of others who speak from personal knowledge.'

There is nothing in the opinion rendered which holds that an information must in all cases be verified or supported by an affidavit showing probable cause. But only that an information must be so verified or supported when an application for the issuance of a warrant is based on it. The sole question before the court was as to the issuance of a warrant, and the court declined to direct its issuance on an information made on the information and belief of the district attorney alone.

In United States v. Morgan (222 U. S., 274, 282 [1911]) the Supreme Court in the case of one prosecuted for a violation of the Pure Food and Drugs Act said:

[11] "A further answer is that as to this and every other offense the fourth amendment furnishes the citizen the nearest practicable safeguard against malicious accusation. He can not be tried on an information unless it is supported by the oath of some one having knowledge of facts showing the existence of probable cause. Nor can an indictment be found until after an examination of witnesses, under oath, by grand jurors, the chosen instruments of the law to protect the citizen against unfounded prosecutions, whether they be instituted by the Government or prompted by private malice."

This statement as to the necessity of the information being supported by the oath of some one having knowledge of facts showing the existence of probable cause is obiter dictum. The court has certainly never decided that under such circumstances as exist in the case now before us no trial could be had.

In Foster's Federal Practice, fifth edition, section 494, page 1659, this usually accurate writer states the rule as follows:

*

"An information can not be filed without leave of the court. * An information must be supported by an affidavit showing probable cause for the prosecution arising from facts within the knowledge of the affiant; or by the depositions of witnesses

taken upon a preliminary examination or affidavits upon which a warrant of arrest against the accused was previously issued, which may be sufficient."

The limitation imposed by this amendment is a limitation solely upon the powers of the Federal Government and not upon the powers of the State governments. This principle of construction was settled as early as 1833 by a decision written by Chief Justice Marshall in the leading case of Barron v. Baltimore (7 Peters, 243) and has been adhered to by the Supreme Court in numerous cases which have subsequently arisen. But in the constitutions of some of the States a provision exists similar to that embodied in the fourth amendment. And we may briefly inquire as to the effect given to it, as respects informations, by the decisions of the State courts. They have held in a number of cases that a constitutional provision similar in terms to that embodied in the fourth amendment to the Constitution of the United States is violated if proceedings are had under an information which is not supported by the oath or affirmation of any person. (Lustig v. People, 18 Col., 217 [1893]; State v. Gleason, 32 Kans., 245 [1884]; Myers v. People, 67 Ill., 503 [1873]; Eichenlaub v. State, 36 Ohio St., 140 [1880]; De Graff v. State, 2 Okl. Cr., 519 [1909]; Thornberry v. State, 3 Tex. App., 36 [1877]; State v. Boulter, 5 Wyom., 236 [1894].) But the State courts are not agreed in this view, some of them having reached a contrary conclusion. (See State v. Smith, 114 La., 322 [1905]; State v. Guglielmo, 46 Oregon, 250 [1905]; Territory v. Cutinola, 4 N. Mexico, 160 [1887].)

In the case at bar the information was not verified, neither was it supported by any affidavit. The information begins, "Now comes Henry A. Wise, United States attor ney for the Southern District of New York, leave having been first had and obtained, and respect [12] fully informs this court that," etc. It does not appear, however, that in obtaining leave of the court to file the information there was ever presented to the court any complaint under oath or any affidavit showing probable cause to believe that the person accused in the information had ever committed the offense charged against him.

If the fourth amendment makes it necessary that under all circumstances an information must be verified or supported by an affidavit showing probable cause, then proceedings had in the prosecution of the defendant can not be sustained. But the right secured to the individual by the fourth amendment, as we understand it, is not a right to have the information by which he is accused of crime verified by the oath of the prosecuting officer of the Government or to have it supported by the affidavit of some third person. His right is to be protected against the issuance of a warrant for his arrest except "upon probable cause supported by oath or affirmation" and naming the person against whom it is to issue. If the application for the warrant is made to the court upon the strength of the information, then the information should be verified or supported by an affidavit showing probable cause to believe that the party against whom it is issued has committed the crime with which he is charged. But if no warrant has issued, no arrest been made, and the person has voluntarily appeared, pleaded to the information, been tried, convicted, and fined, we fail to discover wherein any right secured to him by the fourth amendment has been infringed. The fact that in the case at bar the defendant demurred to the information because it was not verified and he then pleaded not guilty only after his objection to the demurrer was overruled does not affect the matter. There was nothing in the ruling of the court that deprived him of his constitutional right to have no warrant issued for his arrest "but upon probable cause, supported by oath or affirmation." No such warrant has been at any time issued and no application for its issuance has ever been so much as requested.

The Pure Food and Drugs Act makes it a crime against the United States if any part of the label on goods sent in interstate commerce is false and misleading. The goods shipped by the defendant were on the label "guaranteed to contain no gelatine, gum arabic, egg albumen, or similar article. The claim of the Government is

that while the goods contained no gum arabic they did contain India gum and that India gum was similar" to gum arabic. The jury found that this was so after being instructed that if they had a reasonable doubt on the subject they must find for the defendant. There was sufficient evidence to warrant the submission of the case to the jury, and we find no error in the rulings of the court.

Judgment affirmed.

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name on label, statutory requirement....

12

parent substance of acetphenetidine, opinion of Attorney General.

792-796

Acetphenetidine-

derivative of acetanilide, opinion of Attorney General.....

792-796

derivative of acetanilide, regulation 28...

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Commerce, and Treasury, Secretaries, authority to make regulations, House
committee report..

26

11

11

11

20-22

65

25

14

812, 814

Commerce, and Treasury, Secretaries, authority under Food and Drugs Act,
opinion of Attorney General.

802-804

Commerce, and Treasury, Secretaries, authorized by statute to make regu-
lations....

10

Secretary, appeal to for remuneration, etc., regulation 37.
Secretary, authority to determine colors, preservatives, and other substances
in foods, regulation 15..

Secretary, authority to fix food standards, House committee report..
Secretary, authority to investigate adulterations, etc., opinion of Attorney
General....

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Secretary, duty to examine imports for adulteration and misbranding..
Treasury, and Commerce, Secretaries, authority to make regulations,
opinion of Attorney General.....

Alcohol-

definition, relation to high wines and spirits, etc., opinion of Attorney
General...

14

792-796

786

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present in drug products, declaration of the quantity or proportion of.

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United States, duty to conduct prosecutions for violations of the act.....

10

843

Page.

Barley and oats, bleached.

Barney, Schmieder v., cited..

Barytes, adulterant of confectionery.

156

777

11

Beet-sugar molasses in the preparation of whisky compounds and imitation
whiskies, use of neutral spirits distilled from....

Benzoate of soda-

110-112

amendment to Food Inspection Decision 76, relating to the use in foods of....
use in food..

106

116-117

use in food, provisions for, regulation 15.

22

Bettman et al., Union Distilling Co. et al. v., cited..

799-825

Beverages, classification as food, House committee report..

811

Beveridge amendment, notes on..

769, 770

Bills, pure-food, in Congress, 1889-1906, dates and authors.
Bitters, labeling of..

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Attorney General, opinion on declaring names of derivatives on labels of
drugs

792-796

Attorney General, opinion on harmony of Tea Inspection Act with Food
and Drugs Act...

772-775

Attorney General, opinion on labeling whisky, May 29, 1907.
Attorney General, opinion on labeling whisky, February, 1909
Attorney General, opinion on marking and branding of spirit casks.

775-779

797-800

783-789

Attorney General, opinion on relations of Drugs and Medicine Act of 1848
and Food and Drugs Act..

779-782

Attorney General, opinion on sale of condemned medicines by the military
authorities...

789

Bond-

consignee's, for delivery of imports prior to examination, regulation 35....
for release of imports..

30

14

Border importations, minor..

48

"Bourbon," use in name of whisky, discussion by President Taft..

Bowers, Lloyd W., Solicitor General, report on the labeling of whisky...... 818-830
Branding-

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use of water, brine, sirup, sauce, and similar substances in the preparation

160

827

41

773

823

139-143

155

69

12

26

61

155-156

Page.
131, 132

Cantaloupes, Rocky Ford..

"Caracas Cocoa," labeling.
Caramels, labeling of..

130, 131
84, 85

Certificates for imported meats and meat food products of cattle, sheep, swine,
and goats...

Certificate and control of dyes permissible for use in coloring foods and food-
stuffs....

79-82

67-69

Certification of straight dyes and mixtures under secondary certificates (amend-

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Chemicals, dyes, and preservatives in foods.

69-79

Chemistry Bureau, duty in examination of foods and drugs

10

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preparations containing, regulation 28.

Chrome yellow, adulterant of confectionery.

Citron, labeling of candied.........

Citrus fruit, frozen..

Citrus fruits, coloring of green.

Coated, definition of term, regulation 12.

12

26

Chocolate and cocoa, labeling of.......

Chocolates and other confections, use of shellac and other gums for coating.

149, 150

133-134

11

155

159

147-148

20

11

26, 27

12

Coated to conceal damage or inferiority. .
Cocaine-

derivatives and preparations, regulation 28.
name on label, statutory requirement....
Сосоа-

labeling of Caracas.....

labeling of chocolate and.

Cocoa butter, substitutes...
Coffee-

glazed..

imitation.

importation of.

labeling of Mocha..

labeling of Dutch East Indies..

Collection of samples.

Coloring-

addition to whisky, discussion..

butter and cheese..

130, 131
149-150
48, 49

83, 84
40
126

85, 86

107-108

83

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820, 828, 832-833, 834

41

foods and foodstuffs, certificate and control of dyes permissible for use in.. 79-82

foods, to conceal damage and inferiority, prohibited..

harmless, use in blends permitted.

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Commerce-

Agriculture, and Treasury, Secretaries, authority to make regulations,

opinion of Attorney General.....

792-796

Agriculture, and Treasury, Secretaries, authority to make regulations,

House committee report.

812, 814

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