Wagner v. United States , 3 F.2d 864 ( 1925 )

GILBERT, Circuit Judge.

The plaintiffs in error pleaded guilty to an information, in three counts, which charges them with willfully and unlawfully maintaining a nuisance, willfully and unlawfully possessing certain intoxicating liquors, and willfully and unlawfully selling certain intoxicating liquor. Upon their plea of guilty the court sentenced them to be imprisoned for a period of three months, and that they each pay a fine of $500, or, in default thereof, that they each be imprisoned for a period of 5 months in the county jail. The assignments of error bring in question only the legality of the sentence, in that it provided that, in default of the payment of the fine, the plaintiffs in error be imprisoned 5 months in the county jail, and the subsequent refusal of the court to modify the sentence. On the presentation of the ease in this court, however, the plaintiffs in error raised the additional question of the jurisdiction of the court below, on the ground that the information was not based on probable cause, as required by the Fourth Amendment to the Constitution, nor upon a finding of probable cause by any court, judge, or commissioner, nor upon any preliminary hearing to ascertain whether there was probable cause.

This and other courts have held that the verification of an information is not required by any statute, and that it is only where the issuance of a warrant of arrest is sought upon this information that there must be an affidavit of one who knows the facts. Weeks v. United States, 216 F. 292, 132 C. C. A. 436, L. R. A. 1915B, 651, Ann. Cas. 1917C, 524; Brown v. United States, 257 F. 703, 168 C. C. A. 653; Carney v. United States (C. C. A.) 295 F. 607; Farinelli v. United States (C. C. A.) 297 F. 198. Here there is no question of the legality of a warrant of arrest, nor does it appear from the transcript that any such warrant was ever issued or applied for. All that appears is that the plaintiffs in error were arraigned and that they pleaded guilty.

As against the legality of the sentence, it is contended that the trial court could not lawfully adjudge that the plaintiffs in error be imprisoned for 5 months in ease of their failure to pay the fine which was imposed upon them, and the erroneous position is taken that, because section 1042 (Comp. St. § 1706) provides that, when a poor convict sentenced to pay a fine has been imprisoned 30 days for the nonpayment of the fine, he may take the pauper’s oath and be discharged from custody, a sentence of imprisonment for 5 months is not permissible. But clearly section 1042 places no limitation upon the power of the court in imposing sentence, nor, in fact, is any right secured to the prisoner by section 1042 interfered with or impaired by a sentence for a longer period than 30 days in ease of failure to pay a fine. Section 1041, Rev. Stats. (Comp. St. § 1705), authorizes imprisonment until the fine or penalty imposed be paid, and under that statute it is discretionary with the court whether or not it will order the defendant into custody until the fine is paid. Matter of Jackson, 96 U. S. 727, 84 L. Ed. 877; Ex parte Barclay (C. C.) 153 F. 669; Hardesty v. United States, 184 F. 269, 106 C. C. A. 411. But it is obvious that by no sentence imposed by tbe court, whether it be that the defendant be imprisoned until the fine is paid, or that in default of payment of the fine he be imprisoned for a designated period, can the defendant be deprived of his right under section 1042 to apply for and obtain discharge at the expiration of 30 days on the grounds set forth in the statute. We find no error.

The judgment is affirmed.