Hamilton, Judge,
delivered the following opinion:
1. In the case at bar and in 140 other cases, the district attorney asks leave to file an information charging an offense under the prohibition laws, and seeks to have process issued to bring the defendants into court. What is decided in the present case* will apply to all the others, and the same order will be entered in all.
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There has been a ease in which a district attorney on the-Mainland sought to file an information which in the mind of the court did not conform to all constitutional requirements, and permission was refused. United States v. Smith, 40 Fed. 755. It would seem that information is a recognized form of prosecuting cases not of an infamous nature, that is to say, cases not involving capital punishment or imprisonment for over one year. Mackin’s Case, 117 U. S. 348, 29 L. ed. 909, 6 Sup. Ct. Rep. 777. See also Parkinson v. United States, 121 U. S. 281, 30 L. ed. 959, 7 Sup. Ct. Rep. 896. This definition conforms to a long line of common-law decisions. Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935, 4 Am. Crim. Rep. 283. These in turn are in line with the Koman practice of capitis deminutio. There infamy consisted in the loss of all political rights, and might even be granted in a civil suit as a deterrent for wrongdoing. Ihering,- Struggle for Law, chap. VI. The Federal practice is detailed in Erwin v. United States, 2 L.R.A. 229, 37 Fed. 470, 489, and the history of the procedure in Weeks v. United States, L.R.A.1915B, 651, 132 C. C. A. 436, 216 Fed. 292, Ann. Cas. 1917C, 524. The court has power tó refuse to permit the filing of an information, but this should be for lack of some of the essentials, constitutional or otherwise. The judicial discretion is not arbitrary and should not be exercised where the essentials are present. However convenient it might seem to be to send such cases as those arising under prohibition laws to the grand jury to sift out what is good 'from what is bad, this lies within the judgment of the department of justice and is not incumbent upon the court. If the department of justice thinks that the expense of an examination before a grand jury, to be followed in many cases by
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bringing tbe same witnesses from a distance to tbe trial before a petit jury, is disproportioned to tbe public good to be attained in tbe prosecution, tbis is a matter which cannot be reviewed by tbe court. If the essential requisites are present, permission should not be refused to file informations.
In tbe case at bar examination has been made of all tbe 111 cases in question, and each information seems to be accompanied by regular warrant, arrest, and finding of probable cause by tbe United States commissioner for tbe venue in question. Under tbe circumstances, the district attorney is justified in asking leave to file informations instead of going to tbe grand jury for indictments, Brown v. United States, 168 C. C. A. 653, 257 Fed. 703; Blanc v. United States, 169 C. C. A. 641, 258 Fed. 921.
2. Tbe technical question arises, however, whether there should not bo a reference in the information to tbe preliminary procedure. Tbe court hardly seems bound to examine the papers in a file to find out whether the district attorney bad such ground for bis action. If there was such ground it was probably jurisdictional and should be alleged or referred to in some way in the information itself. It would seem, therefore, that tbe information sborrld contain such an allegation. United States v. Polite, 35 Fed. 58.
Upon tbe argument of this matter the district attorney has-assented to this view, and has added to the different informa-tions an allegation to tbe above effect. As tbis is done before tbe papers are filed, it is not necessary to consider it in tbe light of an amendment, but as part of the original paper itself. As so rewritten or altered, tbe paper presented as an information
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seems to conform to all constitutional requirements, and permission is granted for its filing as an information. The same will be true as to each of the other cases involved.
It is so ordered.