(specially concurring in the result).
I, of course, agree with the view of the majority that if timely and effectively challenged below on the ground taken by the court in its opinion, the information could not stand. I cannot, however, agree that upon this record the omission from the information now challenged ex mero motu by the court is of the fundamental and prejudicial character ascribed to it by the court. This is that the error in respect of it has survived, (1) the failure of defendant to urge it below in a specific attack upon the information or by objecting to the reception of the evidence; (2) the verdict and judgment; (3) the failure to object to it on the motion for new trial; and (4) the submission on appeal without making the point in brief or argument.1
*128This is especially so since the information was in twenty counts, nineteen charging knowingly permitting and requiring different drivers to remain on duty for a longer time than allowed by law, and the twentieth, the one in question here, charging the making of a false statement, while the motion to dismiss, directed to each of the counts stated only, “Each of said counts fails to set forth facts sufficient to constitute an offense.” Thus the attention of the United States was not called to the omission in the information, and it was not afforded opportunity to correct it.
I concur in the judgment of reversal, however, because I think it perfectly plain: that, for the errors assigned by defendant, its motion for a directed verdict should have been granted; and the judgment should be reversed with directions to acquit the defendant.
. Cf. Rule 52, Federal Rules Criminal Rroeedure: Grimsley v. United States, 5 Cir., 50 F.2d 509 and the dissenting and concurring opinions; Sutton v. United States, 5 Cir., 157 F.2d 661, 662, and the dissenting and concurring opinions; Edenfield v. United States, 5 Cir., 112 F.2d 931; United States v. Norton, 2 Cir., 179 F.2d 527; United States v. O’Brien, 7 Cir., 174 F.2d 341; Rolland v. United States, 5 Cir., 200 F.2d 678.