# Myers v. United States > Court of Appeals for the Eighth Circuit · October 15, 1926 · 15 F.2d 977 URL: https://www.frixlaw.com/law-library/cases/9651086 ## Case - **Full name:** Myers v. United States - **Court:** Court of Appeals for the Eighth Circuit - **Decided:** October 15, 1926 - **Citations:** 15 F.2d 977; 1926 U.S. App. LEXIS 3061 - **Precedential status:** Published - **Opinion:** Dissent by Booth - **Judges:** Van Valkenburgh, Booth, Stone, Van Valkenburgh Booth - **Cited by:** 46 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9651086 ## Opinion text BOOTH, Circuit Judge (dissenting). I respectfully dissent from that portion of the learned and exhaustive majority opinion which holds that the overruling of the demurrer to the information was not reversible error, and I shall briefly state my reasons. 1. The Sixth Amendment to the Constitution of the United States provides: “In all criminal prosecutions, the accused shall' enjoy the right * * * to be informed of the nature and cause of the accusation.” The Fifth Amendment to the Constitution provides: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” In order that the accused may “be informed of the nature and cause of the accusation,” the courts have quite uniformly held that the information ' or indictment filed against him must fulfill certain requirements or meet certain tests. These tests, as laid down by this court in Miller v. United States, 133 F. 337, 341 , 66 C. C. A. 399, 403 , and other cases, are: “It must set forth the facts which the pleader claims constitute the alleged transgression so distinctly as to advise the accused of the charge which he has to meet, so fully as to give him a fair opportunity to prepare his defense, so particularly as to enable him to avail himself of a conviction or acquittal in defense of another prosecution for the same crime, and so clearly that the court, upon an examination of the indictment, may be able to determine whether or not, under the law, the facts there stated are sufficient to support a conviction.” The tests thus laid down have been consistently recognized by this court. Goldberg v. United States (C. C. A.) 277 F. 211, 215 ; Armour Packing Co. v. United States, 153 F. 1, 15 , 82 C. C. A. 135 , 14 L. R. A. (N. S.) 400; Fontana v. United States (C. C. A.) 262 F. 283, 286 ; Weisman v. United States (C. C. A.) 1 F.(2d) 696 ; Carpenter v. United States (C. C. A.) 1 F.(2d) 314 ; Lynch v. United States (C. C. A.) 10 F.(2d) 947 . _ The majority opinion seems to hold that the indictment or information will be held sufficient if it merely sets forth clearly all of the elements going to make up the offense. This holding, in my opinion, gives effect to a part only of the tests above set out. It fails to recognize the requirements of distinctness and particularity, which mean that the general description of the elements of the offense charged must be accompanied with such a statement of facts and circumstances as will inform the accused of the specific offense, coming‘under the general description, with which he is charged. The constitutional requirement is based upon the presumption of innocence, and therefore requires such fullness and particularity as will enable an innocent man to prepare for trial. The fullness and particularity are also requisite to enable the accused to enjoy the benefit of the provision of the Fifth Amendment in regard to double jeopardy. 31 C. J. 650, 663; Miller v. United States, supra; Naftzger v. United States, 200 F. 494, 502 (C. C. A. 8); Fontana v. United States, supra. This requirement of particularity as to the identity of the specific offense charged, as distinguished from its general character, may be met by averments of time, place, person, and other circumstances — something in the way of earmarks by which the particular offense charged may be distinguished from other offenses of similar character. This requirement is fundamental in criminal pleading. In 31 C. J. 712 the requirement is stated: “Such averments as to time, plaee, person, and other circumstances as are necessary to identify the particular transaction are, of course, necessary.” Bishop in his work on Criminal Procedure (2d Ed.) § 526, recognizes the requirement: “The rule derivable from the. combined authorities and their reasons, is that the accusation should so descend into detail, and become so 'specific’ as to give the defend *988 ant full and fair notice of what is to be produced against him. The limit is, that it need not he so minute or expanded as to impose ’unnecessary burdens on the prosecution, or otherwise defeat the ends of justice.” The requirement has been commonly recognized in both federal and state eourts, and indictments or informations have been held bad for failure to meet it. United States v. Cruikshank, 92 U. S. 542, 558 , 23 L. Ed. 588 ; United States v. Simmons, 96 U. S. 360, 362 , 24 L. Ed. 819 ; United States v. Hess, 124 U. S. 483, 487 , 8 S. Ct. 571 , 31 L. Ed. 516 ; Fontana v. United States, supra; Carpenter v. United States, supra; Lynch v. United States, supra; State v. Crouse, 117 Me. 363, 364 , 104 A. 525 ; State v. Allgor, 78 N. J. Law, 313, 314, 73 A. 76 ; State v. Hatfield, 87 N. J. Law, 124, 93 A. 677 ; State v. Villa, 92 Vt. 121 , 102 A. 935 . No impractical standard of particularity is set up by these requirements. In every case where an indictment is returned, or an information filed, the prosecution is in possession of certain faets of time, place, person, or circumstances which identify the particular offense charged, and these earmarks distinguish it from all other offenses of similar nature. Coneededly this was so in the case at bar. The majority opinion seems to hold that these requirements may be dispensed with, because the necessary information may be obtained by the accused asking for a bill of particulars. This apotheosis of the bill of particulars does not seem to me to meet the situation. If the indictment or information is insufficient, because it does not fulfill the required tests, a bill of particulars will not make it good. The function of a bill of particulars is to aid the accused, when the indictment or information is good, not to bolster up a bad indictment or information. May v. United States, 199 P. 53 , 117 C. C. A. 431 (C. C. A. 8); Ploren v. United States, 186 P. 961 , 108 C. C. A. 577 (C. C. A. 8); United States v. Bayaud (C. C.) 16 P. 376 ; Poster v. United States, 253 P. 481 , 165 C. C. A. 193 ; Collins v. United States, 253 P. 609 , 165 C. C. A. 637 . Furthermore, the granting of a bill of particulars is largely discretionary with the trial court. But the accused has a constitutional right to be tried, if at all, under a valid information or indictment. No discretionary order of a trial court can take the place Of this constitutional right. Finally, in ease of an indictment invalid for indefiniteness, who can say that the crime particularly specified in a bill of particulars is the identical crime which the grand jury had in mind in bringing in the indictment. The contention that an indictment or information, which does not identify a particular offense, will not afford the accused safe opportunity to use the judgment thereon in defense of another prosecution for the same crime, is attempted to be answered in the majority opinion by saying that the whole record may be resorted to, in order to show the identity of the offense. But suppose there is no record of testimony, either because the accused pleaded guilty, or because, as happens in numberless cases, no record is made of the testimony on the trial. Furthermore, the sufficiency of an indictment or information is to be determined, not after the trial is over and in view of what has happened, but before the trial commences and in view of what may happen. The majority opinion seems to hold that the defect of indefiniteness, if one existed, in the information, was remedied by an affidavit filed with the information. I cannot agree with this view. The affidavit was no part of the information. It was not made by the district attorney or any one in his office. The prosecution would not be limited in putting in its evidence to the sales mentioned in the affidavit. Furthermore there would be no variance between allegations of the information and the proof, if evidence of sales other than those stated in the affidavit was introduced. I shall not undertake to review .the large number of cases cited in the majority opinion. Laying aside eases involving indictments for sending obscene matter through the mail, such as Tubbs v. United States, 105 F. 59 , 44 C. C. A. 357 (C. C. A. 8), m which a special rule applies, an examination of the others will I think disclose, in every case where the question of indefiniteness was involved and where the indictment or information was held sufficient, either that the indictment or information, notwithstanding the omission of some particular earmark, .did contain other earmarks whieh in the opinion of the court were sufficient to identify the particular offense, or that the question of insufficiency for indefiniteness was not raised until after verdict. In the ease at bar, however, the majority opinion as I understand it, concedes that the information does not contain earmarks sufficient to identify a particular offense, and also concedes that the question of sufficiency was properly and timely raised. 2. The majority opinion makes no mention of the case of Lynch v. United States, supra, a case decided by this court and in. volving the precise question now under discussion in the case at bar.’ Yet the majority *989 opinion apparently overrules the Lynch Case sub silentio. In the Lynch Case the indictment read as follows: '“That heretofore, to wit, on or about the 7th day of December, 1922, at Pawhuska, in Osage county, in the Western district of the state of Oklahoma, and within the jurisdiction of this court, Hr L. Lynch, whose more full, true, and correct name is to the grand jurors unknown, then and there being, did then and there knowingly, willfully, and feloniously have in his possession certain intoxicating liquors, to wit, one (1) pint of whisky, in and upon Indian country, to wit, Osage county, Oklahoma.” In the case at bar the information (count 1) read as follows: “James C. Kinsler, United States attorney * * * gives the court to understand and be informed that said Preston B. Myers, ■ heretofore, to wit, on or about the 13th day of December, 1924, in the city of Omaha, county of Douglas in the Omaha Division of the District of Nebraska, then and there being, did then and there unlawfully, willfully, and knowingly sell certain intoxicating liq-. uor, to wit, about one pint of alcohol, fit for beverage purposes, without first obtaining a permit from the Commissioner of Internal .Revenue so to do.” The other counts, except the fifth, are similar. I do not think the two cases can be fairly distinguished from each other. Both involved the matter of indefiniteness in the indictment or information; that is, lack of earmarks to clearly identify the particular 'offense. In both cases the question was raised before trial, in one by motion to quash, in the other by demurrer. In both cases the objections were overruled. In both cases the earmark which was omitted, and which might have made the indictment or information definite, was the item of place. In both eases there was lack of other earmarks which might have made the item of place unimportant. In both cases a bill of particulars might have been asked for, but was not. In the Lynch Case the court said: “Pawhuska, in Osage county, Okl., is not an inconsiderable city; it covers a considerable area, has many residences, many places of business, many stores, many places, where one might have the possession of a pint of whisky. The indictment gave the defendant no information at what place in that city, whether in his residence, in some store, or some street, in some restaurant or hotel, or in some other place in that city, the United States would endeavor to prove that the defendant had possession of the pint of whisky. The defendant could not have had that possession on any occasion when that occasion was not capable of identification, either by surrounding circumstances, persons, or other earmarks, which would have given the defendant notice of the occasion on which the prosecutor would attempt to prove the offense charged. And the latter knew when the indictment was drawn what that occasion was, the time, place, circumstances "surrounding it, persons present, the identifying earmarks of that occasion. Nevertheless the only information on this subject given the defendant by the indictment was that he had this whisky in his possession at some time within three years prior to the filing of the indictment at some place in the city of Pawhuska. If the United States had set forth in this indictment substantial identifying facts of the time, place or occasion where it would attempt to prove the possession of the whisky, such as that it was on Kihika street, near Main street, in Pawhuska, about the middle of the block, in an automobile, in the presence of T. A. Hubbard, George Blaine, and Mr. Strong, or any other distinctive earmarks of the time, place, or occasion, the indictment might well have been sustained. Such information would have enabled the defendant to investigate the charge, to learn who were and who were not present on the occasion; hence who were possible witnesses, to investigate the entire matter and to prepare his defense to the charge. But there was nothing of this kind in this indictment. Under it the defendant might have been called to meet testimony that at any time of day or night within, three years of the filing of the indictment, at any place in the city of Pawhuska, he had possession of this pint of Whisky. “Were a subsequent prosecution brought for the same offense a judgment of conviction or acquittal under this indictment would avail the defendant nothing. The identity of the offenses would be a matter of conjecture. The indictment and judgment in this case if offered in a subsequent trial for the same offense would fit many different occasions. There would be nothing to show that the alleged offenses were identical. We are satisfied the motion to quash the indictment should have been sustained, and that the failure so to do was serious and prejudicial error.” The Lynch Case in my judgment should not be overruled, either sub silentio or at all. It rules the ease at bar. I am not stressing particularity as to place in so far as it re *990 lates te verme, nor was it so stressed in the Lynch Case; but I. am stressing it in the ease at bar solely as an earmark of identification when other earmarks are lacking. The cases, therefore, must be distinguished, which hold that the naming of a city or town is sufficient to show venue for the purpose of establishing jurisdiction. Here the question is not whether stating the name of a city was sufficient to show that the court had jurisdiction, but whether the statement was sufficient as an earmark to identify the particular offense in the absence of other earmarks. The ease of Carpenter v. United States (C. C. A.) 1 F.(2d) 314 , also decided by this court, is directly opposed to the conclusion reached in the majority opinion, the question involved being of very similar character. 3. It is to be noted that, though the Lynch Case and the Carpenter Case were decided by this court, yet no one of the judges who constituted the court in those cases, though they are all still alive, is sitting in the cas'e at bar. It seems to me to be unwise to establish parallel conflicting opinions of the same court based upon a mere change of personnel. For the foregoing reasons, I think the case should be reversed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9651086. Public record. Not legal advice.