Opinion
J. H. Forney, of Moscow, Idaho, for plaintiff in error.
E. G. Davis, U.S. Atty., and Wm. H. Langroise, Asst. U.S. Atty., both of Boise, Idaho, and J. H. McEvers, Asst. U.S. Atty., of Pocatello, Idaho.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
GILBERT, Circuit Judge.
The plaintiff in error was convicted and sentenced upon two counts of an information which charged him with unlawful sale and the unlawful possession of intoxicating liquor.
It is contended that the affidavit in verification of the information was wholly insufficient to warrant the arrest and trial of the plaintiff in error. The question whether it was insufficient to warrant his arrest is not before us. No attack is or was made upon the warrant of arrest.
On the trial no objection was made to the information for want of verification or upon any ground. By going to trial on the information, without objection, the plaintiff in error waived his right to challenge the sufficiency of the verification. Simpson v. United States, 241 F. 841, 154 C.C.A. 543; Abbott Bros. Co. v. United
Page 299.
States, 242 F. 751, 155 C.C.A. 339; Wilson v. United States (C.C.A.) 275 F. 307; United States v. M'Donald (D.C.) 293 F. 433. And it is well settled that a trial and conviction may be had upon an information which is without verification. Kelly v. United States, 250 F. 947, 163 C.C.A. 197; Brown v. United States, 257 F. 703, 168 C.C.A. 653; Weeks v. United States, 216 F. 292, 132 C.C.A. 436, L.R.A. 1915B, 651, Ann. Cas. 1917C, 524.
The further contention is made that the provision of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.) which declares punishable the unlawful possession of intoxicating liquor is unconstitutional, for the reason that it is not authorized by any of the provisions of the Eighteenth Amendment. The question has been before this court, and decided adversely to the contention, in Page v. United States, 278 F. 41, and the same has been held in United States v. Murphy (D.C.) 264 F. 842, Rose v. United States (C.C.A.) 274 F. 245, and Massey v. United States (C.C.A.) 281 F. 293.
We find no error. The judgment is affirmed.