The appellant Sherman Auto Corporation was a dealer in used automobiles; the
Section 4(a) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 904(a), declares it to be unlawful for any person to sell or deliver any commodity “in violation of any regulation or order under section 2, * * * or to offer, solicit, attempt, or agree to do any of the foregoing,” but a crime is committed only if section 4 is “wilfully” violated. 50 U.S.C.A.Appendix, § 925(b). Because no count of the information alleges that the violation alleged was wilfully committed, the appellants contend that no offense against the United States was charged and that the judgments of conviction cannot stand.1 As the record discloses and as the appellants frankly admit, this technical defect in the information did not in any way prejudice them at the trial. In his opening statement, the district attorney in referring to the charges of violations said, “if wilful, they become crimes.” The appellants’ defense was that the salesmen made innocent mistakes as to the ceiling prices of the cars sold, and the judge charged that they could be convicted only if they wilfully sold automobiles in excess of the ceiling prices. At no time during the trial or after the verdict did the appellants raise any objection to the failure of the information to allege that the charged violations were wilful. Had they done so the information could have been amended. United States v. Elade Realty Corp, 2 Cir., 157 F.2d 979, 981. Under these circumstances, the error, if any, in the formal statement of the charge should not survive the verdict. As Mr. Justice Sutherland stated in Hagner v. United States, 285 U.S. 427, at page 431, 52 S.Ct. 417, 419, 76 L.Ed. 861: “The rigor of old common-law rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial, will be disregarded.” See also Rumely v. United States, 2 Cir., 293 F. 532, 547, certiorari denied 263 U.S. 713, 44 S.Ct. 38, 68 L.Ed. 520; United States v. Achtner, 2 Cir., 144 F.2d 49, 51; 18 U.S.C.A. § 556.
On behalf of appellant Nolan it is urged that the evidence is insufficient to support the verdict. The purchaser, Mr. O’Connor, testified that Nolan told him that the price of the car, $867, was the OPA ceiling price. In fact that price was $50 in excess of the price established by the OPA Regulation. Nolan testified that he had no specific recollection of the O’Con-nor sale but whatever price he gave he got from the office of his employer and never checked its accuracy. He admitted, however, that he had occasionally used the ceiling price guidebook. It was for the jury to decide whether he knew that the price of $867 was above the ceiling; they were not compelled to give credence to his denial of such knowledge.
Count 9 on which Yuzarra was convicted alleged that a 1941 DeSoto sedan was “offered, sold and delivered’ to Helen
We think that the arrangement and deposit made at the company’s place of business constituted a violation of the statute in the Southern District. Section 4, 50 U.S.C.A.Appendix, § 904 declares it unlawful not only “to sell or deliver any commodity” above the ceiling price, but also “to offer, solicit, attempt, or agree to do any of the foregoing.” Moreover, section 925(c) provides that criminal proceedings for violations of section 904 “may be brought in any district in which any part of any act or transaction constituting the violation occurred.” . The $50 deposit made at the company’s place of business was certainly part of the transaction, even if we were to hold that the sale did not occur until delivery of the car in the Eastern District. Accordingly the attack on jurisdiction must fail.
Judgments affirmed.
1.
The first count reads as follows: “On or about the 25th day of March, 1946, in the Southern District of New York, Sherman Auto Oorp. and Arthur Nolan, offered, sold and delivered a used passenger automobile, to wit, a 1939 DeSoto coupe, motor No. S6-10252 to one John O’Connor, for the sum of $837-, which sum constituted a price higher than the maximum price permitted to be charged under Maximum IT’ice Regulation No. 540, as amended, duly issued by the Price Administrator.”
The other counts were similar, with appropriate changes in the date, the description of the egr sold, the price charged for it, and the names of the purchaser and of the salesman who acted in the transaction.