Appellant was convicted upon a criminal information charging that on December 28, 1944, he willfully and unlawfully did have in his possession and under his control, in violation of Second Revised Ration Order No. 3 and General Ration Order No. 8, as amended, ten thousand pounds of sugar, the same being a rationed commodity.
No demurrer, motion to quash, or motion for bill of particulars was filed, but at the close of all the evidence the appellant moved for a direct verdict; later he made a motion in arrest of judgment. Both motions were overruled, and error is assigned to each ruling. We find it necessary on this appeal to consider only the second assignment.
A motion in arrest of judgment may be maintained only for a defect appearing upon the face of the record, and the evidence is no part of the record.1 Although recognized in Rule 34 of the new rules of criminal procedure, the common law motion in arrest of judgment is restricted in its operation by two federal statutes. The first, 18 U.S.C.A. § 556, is directed primarily to the trial court and requires it to disregard any defect or imperfection in an indictment in matter of form "which shall not tend to the prejudice of the defendant.” The second, 28 U.S.C.A. § 391, is directed to the reviewing court and requires it to disregard any error of the trial court that, regardless of its tendency, caused no prejudice to the substantial rights of the accused. These statutes put an end to the rigid rule that error being shown prejudice must be presumed, and established the doctrine that the error must be disregarded if, upon examination of the entire record,' substantial prejudice does not appear.2
It is no longer necessary in the federal courts to follow the old common-law rules of criminal pleadings. An indictment or information in the language of the statute is sufficient except where the words of the statute do not contain all of the essential elements of the offense.3
The Sixth Amendment of the federal constitution requires that in every criminal prosecution the accused shall be informed of the nature and cause of the accusation against him. This means that he shall be so fully and clearly informed of the charge against him as not only to enable him to prepare his defense and not be taken by surprise at the trial, but also that the information as to the alleged offense shall be so definite and certain that he may be protected by a plea of former jeopardy against another "prosecution for the same offense.4
If the information in the instant case failed to meet either of these requirements, it contained a constitutional defect or omission that prejudicially affected the substantial rights of appellant. Turning to the information, we note that at a certain time and place the appellant had in his possession and under his control ten thousand pounds of sugar, the same being a rationed commodity. The mere possession or control of rationed sugar is not a federal offense, and yet the information charges no other fact unless the following words constitute an allegation of fact: “in violation of Second Revised Ration Order No. 3 and General Ration Order No. 8, as amended.”
*664The phrase just quoted is not an allegation of fact but a legal conclusion of the pleader; it constitutes no part of the description of the offense. In The Hoppet v. United States, 7 Cranch 389, 393, 3 L.Ed. 380, Marshall, C. J., said:
“It is not controverted that in all proceedings in courts of common law, either against the person or the thing for penalties or forfeitures, the allegation that the act charged was committed in violation of law, or of provisions of a particular statute, will not justify condemnation, unless, independent of this allegation, a case be stated which shows that the law has been violated. The reference to the' statute may direct the attention of the court, and of the accused, to the particular statute by which the prosecution is to be sustained, but forms no part of the description of the offense. The importance of this principle to a fair administration of justice, to that certainty introduced and demanded by the free genius of our institutions in all prosecutions for offenses against the laws, is too apparent to require elucidation, and the principle itself is too familiar not to. suggest itself to every gentleman of the profession.”
Later in the opinion the Chief Justice said:
“The rule that a man shall not be charged with one crime and convicted of another, may sometimes cover real guilt, but its observance is essential to the preservation of innocence. It is only a- modification of this rule, that the accusation on which the prosecution is founded, should state the crime which is to be proved, and state such a crime as will justify the judgment to be pronounced.”
See also a discussion -in Volume 6, Encyclopedia of United States Supreme Court Reports, headed Indictments, Informations, etc., beginning on page 966, with footnotes of every supreme-court decision up to the time of the publication of this work. On page 990, the learrfed author said that “every ingredient of the offense must be' accurately and certainly expressed” in the indictment. On page 994 it is said: “The allegation that the act charged was committed in violation of law, or of the provisions of a particular statute, forms no part of the description of the offense,” citing the Hoppet case, supra, and Keck v. United States, 172 U.S. 434, 437, 19 S.Ct. 254, 43 L.Ed. 505.
See also Kohl v. Lehlback, 160 U.S. 293, 16 S.Ct. 304, 40 L.Ed. 432, which holds that a general averment of detention contrary to the constitution and laws of the United. States is a conclusion of law.
In the Keck case, supra, the first syllabus reads as follows:
“An indictment for unlawfully importing and bringing into a certain port of the United States diamonds of a stated value, ‘contrary to-law,’ with intent to defraud the United States, but not indicating what is relied on as violative of the law, is insufficient, although it charges the offense substantially in the words of the U. S.Rev.Stat. Sec. 3082.”
United States, v. Gruikshank, 92 U.S. 542, 557-559, 23 L.Ed. 588, deals with the right of the accused to be informed of the nature and cause of the accusation against him. The question arose upon a motion in arrest of judgment after a general verdict of guilty upon sixteen counts. The question was stated to be whether said counts were severally sufficient in law and contained charges of criminal matter indictable under the laws of the United States. The court held that all sixteen counts were so defective that no judgment of conviction should be pronounced upon them. It further held that every ingredient of which the offense is composed must be clearly and accurately alleged.
We have before us over one-hundred closely printed pages (triple-columned) of rules, regulations, prohibitions, and rationales, appertaining to said ration orders No. 3 and 8, of the contents of which we take judicial notice.5 After careful study of these regulations, we have found no offense for the mere possession of sugar in violation of ration order No. *6653, although there are numerous other offenses under that order with reference to sugar, including a prohibition to possess sugar, acquired, in violation of its provisions. We have been cited to no such regulation for the mere possession of silgar. The appellee does not claim that the offense charged in this information was the possession of sugar acquired in violation of ration order No. 3. It claims that the offense intended to be charged was the possession of sugar in violation of ration orders No. 3 and 8. Since there is no such offense so far as order No. 3 is concerned, let us turn to order No. 8, which may or may not have been superseded by order No. 3, depending upon whether the latter covered exactly the same field.
Conceding, without deciding, that order No. 8 was in force on December 28, 1944, the prohibitions therein consisted of sixteen sectional paragraphs, entitled Article II, Sec. 2.1 to 2.16, inclusive. This article contained over fifty prohibitions, the violation of each of which was a crime. Since the defendant was presumed to be innocent, he was also presumed not to know which of these prohibitions was the one intended unless the offense was definitely described in the information.
The appellant has been convicted, but of what no one can say with certainty. The appellee contends in its brief that he was convicted of possessing sugar in violation of Sec. 2.8 of Art. II of General Ration Order No. 8. There are at least two offenses in that paragraph: one for possessing sugar otherwise than in accordance with the provisions of a ration order, the other for possessing sugar that was acquired in violation of a ration order. They are separate offenses, and this record would not sustain a plea of former jeopardy as to either. If it were permissible to amend the pleadings in criminal prosecutions after verdict, as may be done in civil cases,6 we might be able to patch up this information so as to state an offense; but there is no such rule in criminal procedure, and none is likely to be so long as the Sixth Amendment stands.
This information might be compared to an indictment for receiving stolen goods, knowing the same to have been stolen, if it read as follows: “Did willfully and unlawfully receive 10,000 pounds of stolen sugar in violation of a certain section of the penal code.” Such an indictment would omit the essential allegation that the defendant knew the sugar was stolen property, and the reference to the statute, which defined the offense, would avail nothing. See illustration given by the Supreme Court in United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588, 593, in which the court said: “It is a crime to steal goods and chattels; but an indictment would be bad that did not specify with some degree of certainty the articles stolen. This, because the accused must be advised of the essential particulars of the charge against him, and the court must be able to decide whether the property taken was such as was the subject of larceny.”
In the sheaf of regulations before us, the first sentence in said section 2.8 seems to be relied on principally by the appellee to sustain the conviction. It provides that no person shall possess a rationed commodity except in accordance with the provisions of a ration order. This exception constitutes a part of the definition of the offense. Omit the exception, and the order simply provides that no person shall possess a rationed commodity. Clearly no one intended this: therefore, it was necessary for the information, by proper allegation, to negative the exception in the first sentence. The general rule in criminal cases relating to exceptions in statutes may be stated as follows:
In an indictment or information, it is not necessary to negative the matter of an exception made by a proviso or other distinct clause in the statute, whether in the same section or elsewhere;7 but, if the *666exception itself is incorporated in the definition of the offense so that the elements of the crime are not fully stated without the exception, then it must be negatived.8 An exception is something that otherwise ought to be included in the category from which it is eliminated. The office of a proviso is to except something from the enacting clause or to restrict its generality.9
The second sentence of said section 2.8 contains a distinct prohibition, i. e., a separate offense. It provides that no person shall possess any rationed commodity acquired in violation of a ration order. There is just as much reason to argpe that this prohibition constituted the offense as there is to ascribe the charge to the first sentence, and in some aspects of the case there is more reason, since both orders 3 and 8 prohibit acquiring sugar in violation' of ration orders.
There is no contention that the information states more than one offense. In its brief the appellee relies upon both orders No. 3 and 8 to support the charge of possessing sugar in violation of the Second War Powers Act, 50 U.S.C.A.Appendix, § 633(5), but if no offense is sufficiently stated under either order, the position of the Government is not improved by ascribing the alleged offense to both orders. Said section 633(5) penalizes the doing or omission of any act prohibited by any regulation under said statute. No such act was sufficiently described in the information, and even the reference to the regulations (if that were an allegation of fact, which it is not) merely increased the confusion, and left the accused without definite information as to the charge against him.
We think the court below erred in overruling the motion in arrest of judgment. We are not discussing the assignment with reference to the sufficiency of the evidence to support the verdict, because that depends upon the nature of the accusation ; and, since the accused was not definitely informed as to that, it would be idle to consider the evidence. A constitutional defect in an indictment or information is not cured by the verdict.
The judgment appealed from is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Bond v. Dustin, 112 U.S. 604, 608, 5 S.Ct. 206, 28 L.Ed. 835.
Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314.
United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135.
Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314.
U.S.C.A., Title 44, See. 307, e. 417, Sec. 7, 49 Stat. 502; United States v. Lederer, 7 Cir., 140 F.2d 136, certio-ran denied 322 U.S. 734, 64 S.Ct. 1047, 88 L.Ed. 1568.
Rule 15(b), of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301; Edwards v. United States, 312 U.S. 473, 61 S.Ct. 669, 85 L.Ed. 957; Southern R. Company v. United States, 5 Cir., 88 F. 2d 31.
Stephen on Pleading, page 443; Chitty on Criminal Law, Vol. 1, page 283, 284; 42 C.J.S., Indictments and Informations, § 140.
Minis v. United States, 15 Pet. 423, 445, 10 L.Ed. 791. See also United States v. Cook, 17 Wall. 168, 173, 21 L. Ed. 538, in which the court said: “Where a statute defining an offense contains an exception, in the enacting clause of the statute, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the • exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception.”