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Coggins," and that these affidavits, which were annexed to the information, had been sworn to before a notary public a state official not authorized to administer. Compare United States v. Hall, U. With leave of court, new oaths to the affidavits were immediately sworn to before the deputy clerk of the court, and additional affidavits, also sworn to before him, were filed. Thereupon, a new motion to quash, setting forth the same grounds, was filed by the defendants, and this motion extended to both the information and the warrant.
It also was denied, and a demurrer interposed upon the same ground was overruled.
Then, upon a plea of not guilty, the defendants were tried, with the result stated, and a motion in arrest of judgment was denied. As the affidavits on which the warrant issued had not been properly verified, the arrest was in violation of the clause in the Fourth Amendment, which declares that "no warrants shall issue but upon probable cause, supported by oath or affirmation. Michalski, F.
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But it does not follow that, because the arrest was illegal, the information was or became void. The information was filed by leave of court. Despite some practice and statements to the contrary, it may be accepted as settled that leave must be obtained, and that, before granting leave, the court must in some way satisfy itself that there is probable cause for the prosecution. But these are not the only means by which a court may become satisfied that probable cause for the prosecution exists. See Weeks v.
United States, F. It is contended that this information was not presented on the official oath of the United States attorney; that, instead of informing on his official oath, he gave "the court to understand and be informed on the affidavit[s]" referred to, and that, for this reason, the information is to be likened not to those filed in England by the Attorney General or the Solicitor General, but to those exhibited there by Masters of the Crown upon information of a private informer; that the latter class of informations.
The practice of prosecuting lesser federal crimes by information, instead of indictment, has been common since The reference to the affidavits in this information is not to be read as indicating that it was presented otherwise than upon the oath of office of the United States attorney.
If, before granting the warrant, the defendants had entered a voluntary appearance, the reference and the affidavits could have been treated as surplusage, and would not have vitiated the information. The invalidity of the warrant is not comparable to the invalidity of an indictment. A person may not be punished for a crime without a formal and sufficient accusation, even if he voluntarily submits to the jurisdiction of the court.
Compare Ex parte Bain, U. But a false arrest does not necessarily deprive the court of jurisdiction of the proceeding in which it was made.
Where there was an appropriate accusation either by indictment or information, a court may acquire jurisdiction over the person of the defendant by his voluntary appearance. The judgment assailed would clearly have been good if the objection had not been taken until after the verdict. Was it waived? And, if not, was it cured? The bail bonds bound the defendants to "be and appear" in court "from day to day" and "to answer and stand trial upon the information herein and to stand by and abide the orders and judgment of the court in the premises.
We are of the opinion that the failure to take the objection at that time did not waive the invalidity of the warrant or operate as a general appearance. But the first motion to quash was not directed to the invalidity of the warrant. As that motion to quash was directed solely to the information, it could not raise the question of the validity of the warrant. Thereby the situation had been changed.
The affidavits then on file would have supported a new warrant which, if issued, would plainly have validated the proceedings thenceforward. Compare In re Johnson, U. There was no occasion to apply for a new warrant, because the defendants were already in court. By failing to move to quash the warrant before the defect had been cured, the defendants lost their right to object. It is thus unnecessary to decide whether it would have been proper to allow the amendment, and deny the motion.
There is a claim of violation of the Fifth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information, four charged illegal possession of liquor, four illegal sale, and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses.
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One may obviously possess without selling, and one may sell and cause to be delivered a thing of which he has never had possession, or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offense.
There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit, and punishing also the completed transaction.
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The precise question does not appear to have been discussed in either this or a lower federal court in connection with the National Prohibition Act, but the general principle is well established. Compare Burton v. United States, U. Devine, U. The great majority of the lower courts dealing with the subject have insisted that the district attorney secure leave of court before filing informations, and have refused to grant leave except upon a showing of probable cause. United States v. Shepard, Fed.
Maxwell, Fed. Baugh, 1 Fed. Reilley, 20 F. Smith, 40 F. Schurman, F. Quaritius, F. In some districts, the United States attorney has been permitted to file an information upon a purely formal allegation of leave, but the court determined the question of the existence of probable cause upon a motion of the defendant to withdraw leave.
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Simon, F. The statements in Ryan v. United States, 5 F. A few cases have considered a verification essential to the validity of an information. The court may require the witnesses to give bail for their appearance at the trial. Intervention of the offended party in criminal action. Institution of criminal and civil actions.
The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees thereof shall constitute a first lien on the judgment awarding such damages.
Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages.
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No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein.
If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions.
When separate civil action is suspended.