(dissenting).
I do not agree with the majority opinion wherein it finds the trial court abused its discretion in refusing to grant the motion of defendant for a bill of particulars.
The defendant was arrested on May 8, 1947, on a warrant describing the offense. He was immediately brought before the United States Commissioner, and being there represented by counsel, waived hearing. On June 5, 1947, through his counsel, he was furnished a copy of the information setting forth the charges against him, as well as the regulations he was alleged to have violated. The case was called for trial and was tried on June 12, 1947, and counsel at that time admitted in open court that he had received the information and a copy of the regulations on June 5, 1947. At one and the same time counsel for defendant submitted to the court motions for continuance, for dismissal of the case, and for a bill of particulars. Defendant was not taken by surprise, as his counsel appeared armed with every available defensive pleading.
The evidence virtually warrants the giving of a directed verdict for the United States. It discloses that the defendant had for a long time been engaged in buying and selling sugar in violation of the Ration Orders of the Office of Price Administration, until his black market dealings mounted into thousands of pounds of sugar, and stood out like the smudge of a black snake crossing a sandlot.
The evidence further shows without dispute that officers on several occasions went to a grocery and feed store in Cordele, Georgia, and secreted themselves behind boxes, watching the defendant as he came in and traded “ration stamps,” or what was known as “housewife stamps,” for sugar. On one occasion the defendant entered this store while the officers were watching and delivered to the storekeeper a magazine containing 911 “housewife stamps,” which were in gummed sheets and had not been separated, and paid him $1302 in cash for nearly five thousand pounds of sugar, saying he would send for the sugar the next day. The officers marked the bags of sugar with the letter “X.” At a later date they marked approximately one hundred bags of sugar with a “check mark,” and still later, they marked sugar bags at this store, which the defendant had purchased, with the letter “O.” The officers followed a truck, after it had loaded the sugar at the store in Cordele, Georgia, to the home of the defendant, at 1223 Lee Street, Americus, Georgia, and watched the sugar unloaded into a garage in the back yard. After watching several loads of sugar, which defendant had bought and paid for with “housewife stamps” in Cordele, Georgia, unloaded into this garage in defendant’s back yard, the officers, armed with a search warrant, raided the garage and found over two hundred and forty one, one hundred pound sacks, of sugar, weighing in all over twenty-four thousand pounds. Many of the sacks were marked with the letter “X,” with a “check mark,” and with the letter “0.” Some of the sacks, marked as indicated, were exhibited to the jury at the trial. This evidence *305leads unalterably to the conclusion that the defendant did not need a bill of particulars. It discloses that he kne-w accurately, both as to time and place, of the charges he must face.
Finding sugar concealed on the premises of defendant was almost akin to the possession of the recently stolen goods rule: Where one is found in possession of recently stolen goods, such possession casts upon that one the burden of explaining such possession, and failing so to do, a jury may conclude guilt therefrom. I readily concede that the defendant did not have to testify in his own behalf. He had the constitutional right to refuse, as he did, to offer testimony. Yet he sat silently by at his trial and refused to testify when the evidence was without dispute that he was and had been engaged in buying, concealing, and selling sugar illegally.
The defendant ran a small bottling plant, and he was allowed only certain amounts of sugar, which were issued to him in the form of a sugar check, deposited in the bank to his account, and on which he could issue checks for the purchase of sugar. He purchased approximately ninety per cent of his sugar on “housewife stamps,” which was unlawful, and this he knew better than any one else. Moreover, I can find nothing vague or uncertain in the counts of the information, and here set one out, by way of showing that they are clear and informative.1
The case of Sutton v. United States, on which the majority relies, is not in conflict with this case.
The great weight of authority and the evidence as found in this record shows conclusively that the defendant here was not taken by surprise. Wilson v. United States, 5 Cir., 158 F.2d 659; Hart v. United States, 5 Cir., 112 F.2d 128; Chadwick v. United States, 5 Cir., 117 F.2d 902; Beland v. United States, 5 Cir., 100 F.2d 289.
The very learned trial judge gave a fair and full charge and read to the jury the Ration Order on which the defendant was being tried. The defendant was not taken by surprise, and the evidence leads unerringly to his guilt. I cannot bring myself to agree with my brothers and I, therefore, respectfully dissent.
«# * * On divers days during the months of Apx-il and May, 1946, at Gox-dele, Georgia, in the Amerieus Division of the Middle District of Georgia the defendant John T. Williams, alias J. T. Williams, alias Buck Williams, then and there being registered as an industrial user of sugar under and pursuant to the provisions of Third Revised Ration Order 3, as amended, of the Office of Price Administration and subject thereto, willfully, knowingly, and unlawfully did possess, use, permit the use of, sell and otherwise transfer about 19,000 to 15,000 pounds of sugar, a rationed commodity, each and every week during said period, acquired by the said defendant in exchange for divers and sundry ration documents, namely sugar ration stamps, in violation of the provisions of Third Revised Ration Order 3, as amended, of the Office of Price Administration.”