Argument for Plaintiffs in Error.

273 U.S.

9. Punishing the same person for the distinct offenses of possessing and then selling the same liquor in violation of the Prohibition Act. is not double punishment violating the Fifth Amendment. P. 11. Affirmed.

ERROR to a judgment of the District Court sentencing the plaintiffs in error upon each of nine counts of an information charging violations of the Prohibition Act.

Mr. Charles A. Houts, with whom Messrs. Samuel W. Baxter and D. E. Keefe were on the brief, for the plaintiffs in error.

An information, when made the basis of an application for warrant of arrest, must be supported by an affidavit showing probable cause. 2 Op. Atty Gen. 266; Weeks v. U. S. 216 Fed. 292; United States v. Michalski, 265 Fed. 839; Keilman v. United States, 284 Fed. 845; United States v. Illig, 288 Fed. 939; United States v. McDonald, 293 Fed. 433; In re Gourdian, 45 Fed. 842; United States v. Tureaud, 20 Fed. 621; Ex parte Burford, 3 Cranch 448. The affidavits filed originally with the information were sworn to before a notary public and were therefore insufficient, United States v. Schallinger Produce Co., 230 Fed. 20. The affidavits which were on file at the time the warrant issued were nullities, and the information was unsupported by any affidavit which would be sufficient under the laws of the United States. The affidavits could not be lawfully amended. United States v. Tureaud, supra; United States v. Michalski, supra; Rice v. Ames, 180 U. S. 371; United States v. Morgan, 222 U. S. 275; People v. Clark, 280 Ill. 160; People v. Honaker, 281 Ill. 291; People v. Powers, 283 Ill. 438.

The objection that the information was filed without proper affidavit, or proof of probable cause, was timely and properly made by the motion to quash. United States v. Tureaud, supra; Weeks v. United States, supra;

Sampson v. United States, 241 Fed. 841; United States v. McDonald, supra; United States v. Schallinger Produce Co., supra. Amending the affidavits after the issuance and execution of the warrant, by substituting new affidavits, did not have the effect of validating the information as originally filed, and the arrest made thereon, prior to the amendment of the affidavits. United States v. Tureaud, supra; Rex v. Inhab. of Barton, 9 Dowl. 1021; Coles Crim. Informations, p. 51; United States v. Casino, 286 Fed. 976; 1 R. C. L. 774.

The affidavit itself must be sufficient to state facts which justify the issuance of a warrant and the officer is required by law to satisfy himself of the sufficiency of the affidavit and let the circumstances call for the issuance of a warrant. United States v. Borkoski, 268 Fed. 408; Ripper v. United States, 178 Fed. 24; United States v. Kaplan, 286 Fed. 963.

Neither count of the information charges an offense under the laws of the United States.

The judgment and sentence with respect to certain counts is unlawful as imposing double punishment. Muncy v. United States, 289 Fed. 780.

Solicitor General Mitchell, with whom Assistant Attorney General Willebrandt and Mr. John J. Byrne, Attorney in the Department of Justice, were on the brief, for the United States.

MR. JUSTICE BRANDEIS delivered the opinion of the Court.

This direct writ of error to the federal court for eastern Illinois, was allowed under § 238 of the Judicial Code prior to the amendment of February 13, 1925. Albrecht and his associates were sentenced to either fine or imprisonment upon each of nine counts of an information charging violations of the National Prohibition Act.

There is no contention that the offences charged could not be prosecuted by information. See Brede v. Powers, 263 U. S. 4, 10; Rossini v. United States, 6 F. (2d) 350. The claims mainly urged are that, because of defects in the information and affidavits attached, there was no jurisdiction in the District Court and that rights guaranteed by the Fourth Amendment were violated. Several important questions of practice are presented which have not been passed upon by this Court, and on which there has been diversity of opinion in the lower courts, due in part to language in the opinions in United States v. Morgan, 222 U. S. 274, 282, and in United States v. Thompson, 251 U. S. 407, 413 414.

The information recites that it was filed by the United States Attorney with leave of the court; and the truth of this allegation has not been questioned. A bench warrant issued; and the marshal executed it by arresting the defendants. When they were brought into court, each gave bond to appear and answer; was released from custody immediately; and was not thereafter in custody by virtue of the warrant or otherwise. At the time of giving the bonds, no objection was made to either the jurisdiction or the service by execution of the warrant; and nothing was done then indicating an intention to enter a special appearance. On a later day, the defendants filed a motion to quash the information; declared in the motion that they "specifically limit their appearance in the cause for the purpose of interposing" it; and protested that the court was without jurisdiction. The main ground urged in support of the objection was that the information had not been verified by the United States Attorney; that it recited he "gives the court to understand and be informed, on the affidavit of I. A. Miller and D. P. 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 admin

ister oaths in federal criminal proceedings. Compare United States v. Hall, 131 U. S. 50. 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.

no

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 warrants shall issue but upon probable cause, supported by oath or affirmation." See Ex parte Burford, 3 Cranch 448, 453; United States v. Michalski, 265 Fed. 839. 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. This is done some

1 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. Cas. No. 16,273; United States v. Maxwell, Fed. Cas. No. 15,750; United States v. Baugh, 1 Fed. 784; United States v. Reilley, 20 Fed. 46; United States v. Smith, 40 Fed. 755; United States v. Schurman, 177 Fed. 581; United States v. Quaritius, 267 Fed. 227. 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. United States v. Simon, 248 Fed. 980;

Opinion of the Court.

273 U.S.

times by a verification of the information, and frequently by annexing affidavits thereto. But these are not the only means by which a court may become satisfied that probable cause for the prosecution exists.2 The United States Attorney, like the Attorney General or Solicitor General of England, may file an information under his oath of office; and, if he does so, his official oath may be accepted as sufficient to give verity to the allegations of the information. See Weeks v. United States, 216 Fed. 292, 302.

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 informa

Yaffee v. United States, 276 Fed. 497. The statements in Ryan v. United States, 5 F. (2d) 667, and Miller v. United States, 6 F. (2d) 463, that the United States attorney may file informations as of right, are based upon an incidental remark in United States v. Thompson, 251 U. S. 407, 413-414, which must be disregarded.

2 A few cases have considered a verification essential to the validity of an information. United States v. Tureaud, 20 Fed. 621; United States v. Strickland, 25 Fed. 469. Compare Johnston v. United States, 87 Fed. 187; United States v. Wells, 225 Fed. 320. See United States v. Morgan, 222 U. S. 274, 282. The opposite conclusion was reached after great deliberation in Weeks v. United States, 216 Fed. 292, since followed by many cases. Reference may be made to United States v. Adams Express Co., 230 Fed. 531; Simpson v. United States, 241 Fed. 841; Abbott Bros. Co. v. United States, 242 Fed. 751; Kelly v. United States, 250 Fed. 947; Brown v. United States, 257 Fed. 703; United States v. Newton Tea & Spice Co., 275 Fed. 394; United States v. McDonald, 293 Fed. 433; Vollmer v. United States, 2 F. (2d) 551; Wagner v. United States, 3 F. (2d) 864; Poleskey v. United States, 4 F. (2d) 110; Gray v. United States, 14 F. (2d) 366.