tions were required by Stat. 4 & 5, W. & M. C. 18, to be supported by affidavit of the person at whose instance they were preferred; that this requirement for informations of that character became a part of our common law; and, that, because the affidavits were not properly verified, the information could not confer jurisdiction..

3

The practice of prosecuting lesser federal crimes by information, instead of indictment, has been common since 1870. But, in federal proceedings, no trace has been found of the differentiation in informations for such crimes, or of any class of informations instituted by a private informer comparable to those dealt with in England by Stat. 4 & 5, W. & M. C. 18.

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. The affidavits were doubtless referred to in

3 Two different courts, having before them criminal informations, were able to say, as late as 1870, that there had been no use of that procedure known to them up to that time. United States v. Shepard, Fed. Cas. No. 16,273: United States v. Cultus Joe, Fed. Cas. No. 15,478. See also Abbott's United States Practice, Vol. II, 177. Story writing in 1833, said that there was very little use of informations except in civil prosecutions for penalties and forfeitures. The Constitution, § 1780. In 1864, Congress passed a statute which provided for a summary criminal proceeding, begun by sworn complaint, in cases involving minor offenses by seamen. Act of June 11, 1864, c. 121, §§ 2, 3, 13 Stat. 124. In 1870 was passed a statute authorizing prosecution by indictment or information for crimes against the franchise. Act of May 31, 1870, c. 114, § 8, 16 Stat. 142. While there was probably a sporadic use of informations in criminal proceedings during the first eighty years of the government, as in United States v. Mann, Fed. Cas. No. 15,717 (1812), the use did not become general until after 1870. After 1870 prosecutions by information became frequent. See United States v. Waller, Fed. Cas. No. 16,634; United States v. Maxwell, Fed. Cas. No. 15,750; United States v. Baugh, 1 Fed. 784. See also, Ex parte Wilson, 114 U. S. 417, 425. 4 Compare Simpson v. United States, 241 Fed. 841. Contra, United States v. Schallinger Produce Co., 230 Fed. 290.

the information, not as furnishing probable cause for the prosecution, but because it was proposed to use the information and affidavits annexed as the basis for an application for a warrant of arrest. 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 fact that the information and affidavits were used as a basis for the application for a warrant did not affect the validity of the information as such." Whether the whole proceeding was later vitiated by the false arrest remains to be considered.

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, 121 U. S. 1. 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. That a defendant may be brought before the court by a summons, without an arrest, is shown by the practice in prosecutions against corporations which are necessarily commenced by a summons. Here, the court had juris

8

5 Compare Weeks v. United States, 216 Fed. 292; Poleskey v. United States, 4 F. (2d) 110; Miller v. United States, 6 F. (2d) 463. See also Kelly v. United States, 250 Fed. 947; Brown v. United States, 257 Fed. 703; Keilman v. United States, 284 Fed. 845; Carney v. United States, 295 Fed. 606; Wagner v. United States, 3 F. (2d) 864.

• Compare Yaffee v. United States, 276 Fed. 497; Farinelli v. United States, 297 Fed. 198, 199. See Jordan v. United States, 299 Fed. 298. 7 See cases cited in note 5, supra.

8 The leading case on the use of summons in criminal prosecutions against corporations in the federal courts is United States v. Kelso, 86 Fed. 304, followed in United States v. Standard Oil Co., 154 Fed.

diction of the subject matter; and the persons named as defendants were within its territorial jurisdiction. The judgment assailed would clearly have been good, if the objection had not been taken until after the verdict." This shows that the irregularity in the warrant was of such a character that it could be waived. 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." It is urged there was a waiver by giving the bail bonds without making any objection. 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.10 An objection to the illegality

728; United States v. Virginia-Carolina Chemical Co., 163 Fed. 66; John Gund Brewing Co. v. United States, 204 Fed. 17; United States v. Philadelphia & R. Ry. Co., 237 Fed. 292; United States v. Nat. Malleable & S. Castings Co., 6 F. (2d) 40.

9 See Dowdell v. United States, 221 U. S. 325, 332; Jordan v. United States, 299 Fed. 298; Yaffee v. United States, 276 Fed. 497; United States v. McDonald, 293 Fed. 433, 437. Compare In re Johnson, 167 U. S. 120; Simpson v. United States, 241 Fed. 841; Abbott Bros. Co. v. United States, 242 Fed. 751.

10 There has been no discussion, in the federal courts, of the possible effect of a bail bond as a waiver of the right to object to an illegal arrest. In United States v. Shepard, Fed. Cas. No. 16,273, and United States v. Wells, 225 Fed. 320, the court quashed informations because of the illegality of the arrest, though the defendants had given bond without objecting to the illegality, but the question of waiver was apparently not pressed upon the courts. The trend of authority in the state courts does not consider that giving bond is a waiver, since the defendant must give bond or go to jail, and will ordinarily have little knowledge of his legal rights. People v. Gardner, 71 Misc. 335, 130 N. Y. Supp. 202; State v. Simmons, 39 Kan. 262 (but compare State v. Munson, 111 Kan. 318). Compare Solomon v. People, 15 Ill. 291; State v. Hufford, 28 Ia. 391. See Eddings v. Boner, 1 Ind. Terr. 173, 179-180. Contra, State v. Wenzel, 77 Ind.

of the arrest could have been taken thereafter by a motion to quash the warrants, though technically the defendants were then held under their bonds, the warrants having performed their functions. 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." The motion to quash the warrant was not made until after the government had filed properly verified affidavits by leave of court. 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, 167 U. S. 120. There was no occasion to apply for a new warrant, because the defendants were already in court.12 The defect in the proceeding by which they had been brought into court had been cured. By failing to move to quash the warrant before the defect had been cured, the defendants lost their right to object. It is hus unnecessary to decide whether it would have been proper to allow the amendment, and deny the mo

428. It is of course possible that giving bail plus very little else may amount to a waiver. Ard v. State, 114 Ind. 542; State v. McClain, 13 N. Dak. 368.

11 There has been confusion as to the proper method of taking an objection to an illegal arrest. Some cases in the lower federal courts have apparently allowed it to be taken by a motion to quash the information or indictment. United States v. Illig, 288 Fed. 939. Compare United States v. Tureaud, 20 Fed. 621; Johnston v. United States, 87 Fed. 187; United States v. Wells, 225 Fed. 320. Later decisions require that the objection be taken to the warrant, not to the information or indictment. Farinelli v. United States, 297 Fed. 198, 199; Schmidt v. United States, 2 F. (2d) 367. Compare Christian v. United States, 8 F. (2d) 732, 733.

12 Compare Smith v. State, 20 Ala. App. 442; State v. Volk, 144 Minn. 223.

tion to quash, if the attack on the warrant had been made before the amendment of the affidavits.13

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. 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 offence. 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. 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.

18 See the action of the lower court described in Poleskey v. United States, 4 F. (2d) 110. As to allowing, after objection taken, the amendment of the process by which the defendant has been brought into court, see People v. Hildebrand, 71 Mich. 313; Town of Ridgeland v. Gens, 83 S. C. 562; Keehn v. Stein, 72 Wis. 196 (but see Scheer v. Keown, 29 Wis. 586). Compare State v. McCray, 74 Mo. 303. In State v. Turner, 170 N. C. 701, 702, the court said: "Even if one is wrongfully arrested on process that is defective, being in court, he would not be discharged, but the process would be amended then and there, or if the service were defective it could be served again."