Poleskey v. United States

Seventh Circuit

Poleskey v. United States

4 F.2d 110, 1925 U.S. App. LEXIS 2912

CourtCourt of Appeals for the Seventh Circuit

DecidedJanuary 16, 1925

DocketNo. 3451

StatusPublished

This text of 4 F.2d 110 (Poleskey v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Poleskey v. United States, 4 F.2d 110, 1925 U.S. App. LEXIS 2912 (7th Cir. 1925).

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Opinion

PER CURIAM.

Over his signature as United States district attorney, W. O. Potter, in the Eastern district of Illinois, filed information against plaintiff in error, charging, in separate counts, possession and- sale of intoxicating liquor and maintenance of a common nuisance in violation of the National Prohibition Act (Comp. St. Supp. 1923, § 1013814 et seq.). Erom the information it appeared that O. and R. M. Jones had made affidavit ’ of a sale to them by plaintiff in' enror of spirits containing more than one-half of 1 per cent, of alcohol by volume. The affidavit accompanied the information" "and was sworn to before a notary public.

After- motion to quash for various reasons assigned,' a cross-motion of the district attorney was allowed, and the witnesses - who [111]*111had made oath before a notary public resubscribed and reswore to the affidavit attached to the information before a deputy United States 'clerk. Thereupon plaintiff in error’s motion to quash was refiled and denied. The issuance of a warrant and the arrest thereunder, after the amendment, was waived in open court.

The only error urged is that the affidavit was insufficient in substance. By waiving the issuance and service of the warrant, and by going to trial after the amendment, it became immaterial whether the affidavit was good or whether there was any affidavit. The information, signed by the United States district attorney, was sufficient. Abbott Bros. Co. v. U. S., 242 F. 751, 155 C. C. A. 339 (7th C. C. A.); Weeks v. U. S., 216 F. 292, 132 C. C. A. 436, L. R. A. 1915B, 651, Ann. Cas. 1917C, 524 (2d C. C. A.), where the authorities pertaining to a criminal information are discussed at great length; Farinelli v. U. S., 297 F. 198 (9th C. C. A.); U. S. v. McDonald (D. C.) 293 F. 433. See, also, Schmidt v. U. S., 2 F.(2d) 367 (7th C. C. A.).

Judgment is affirmed.

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PER CURIAM.

Over his signature as United States district attorney, W. O. Potter, in the Eastern district of Illinois, filed information against plaintiff in error, charging, in separate counts, possession and- sale of intoxicating liquor and maintenance of a common nuisance in violation of the National Prohibition Act (Comp. St. Supp. 1923, § 1013814 et seq.). Erom the information it appeared that O. and R. M. Jones had made affidavit ’ of a sale to them by plaintiff in' enror of spirits containing more than one-half of 1 per cent, of alcohol by volume. The affidavit accompanied the information" "and was sworn to before a notary public.

After- motion to quash for various reasons assigned,' a cross-motion of the district attorney was allowed, and the witnesses - who [111]*111had made oath before a notary public resubscribed and reswore to the affidavit attached to the information before a deputy United States 'clerk. Thereupon plaintiff in error’s motion to quash was refiled and denied. The issuance of a warrant and the arrest thereunder, after the amendment, was waived in open court.

The only error urged is that the affidavit was insufficient in substance. By waiving the issuance and service of the warrant, and by going to trial after the amendment, it became immaterial whether the affidavit was good or whether there was any affidavit. The information, signed by the United States district attorney, was sufficient. Abbott Bros. Co. v. U. S., 242 F. 751, 155 C. C. A. 339 (7th C. C. A.); Weeks v. U. S., 216 F. 292, 132 C. C. A. 436, L. R. A. 1915B, 651, Ann. Cas. 1917C, 524 (2d C. C. A.), where the authorities pertaining to a criminal information are discussed at great length; Farinelli v. U. S., 297 F. 198 (9th C. C. A.); U. S. v. McDonald (D. C.) 293 F. 433. See, also, Schmidt v. U. S., 2 F.(2d) 367 (7th C. C. A.).

Judgment is affirmed.

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