Kitt v. United States, 4995.

Decision Date29 December 1942
Docket NumberNo. 4995.,4995.
Citation132 F.2d 920
PartiesKITT et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Fourth Circuit

Hiram M. Smith, of Richmond, Va., for appellants.

Walkley E. Johnson, Asst. U. S. Atty., of Newport News, Va. (Sterling Hutcheson, U. S. Atty. and John V. Cogbill, Asst. U. S. Atty., both of Richmond, Va., and Blair M. Ilderton, Atty., Alcohol Tax Unit, of Baltimore, Md., on the brief), for appellee.

Before SOPER and DOBIE, Circuit Judges, and CHESNUT, District Judge.

DOBIE, Circuit Judge.

Harry Kitt, Max Sklar, Milton Lerner, Elmer Pecht and Ealam C. Fitts were charged and tried in the United States District Court for crimes against the United States under an indictment containing five counts. The first count charged that the defendants had in their custody and control a distilling apparatus which had not been registered. The second count charged that they carried on the business of a distiller without having given bond. The third count charged that they made and caused to be fermented 4,860 gallons of mash fit for distillation, on premises not authorized for a distillery. The fourth count charged that they concealed certain distilled spirits upon which the tax had not been paid and which had been removed from a distillery to a place other than a bonded warehouse, provided by law. The fifth count charged a conspiracy to violate federal laws in many respects and set forth various overt acts committed by one or more of the defendants in furtherance of this conspiracy. See 26 U.S.C.A. Int. Rev.Code, §§ 18, 2810, 2833, 2834, 2913.

Kitt, Sklar and Lerner were found guilty, and were sentenced, on each of the five counts in the indictment. Pecht was found guilty and was sentenced on the fourth and fifth counts. Fitts was found guilty and sentenced on the fifth count.

All of the defendants have appealed to this court. We now proceed to discuss the questions raised on appeal.

The demurrer of the defendants to the fourth and fifth counts of the indictment was overruled by the District Judge. As to the fourth count, error in the conviction was confessed by the United States on account of the insufficiency of the evidence, so that this count is definitely out of the picture. The ground of demurrer to the fifth count is that the word "unlawful" was used to describe the overt acts charged to have been committed in furtherance of the conspiracy; that these acts were clearly lawful in themselves, and that the descriptive word "unlawful" (as used in the fifth count of the indictment) cannot be rejected as surplusage. The contention, we think, is quite lacking in merit.

The cases cited on this question in the brief of appellants are not in point. In Braverman v. United States, 63 S.Ct. 99, 101, 87 L.Ed. ___. Chief Justice Stone aptly said: "The gist of the crime of conspiracy as defined by the federal statute is the agreement or confederation of the conspirators to commit one or more unlawful acts where `one or more of such parties do any act to effect the object of the conspiracy.' The overt act, without proof of which a charge of conspiracy cannot be submitted to the jury, may be that of only a single one of the conspirators and need not be itself a crime." (Italics ours.)

And said Circuit Judge Denman, in Smith v. United States, 9 Cir., 92 F.2d 460, 461: "Appellant contends that the making of the telephone call from Honolulu to Los Angeles is too innocent an act to be an `overt act' under the conspiracy statute. There is no merit to this argument. Any act without criminal purpose is usually innocent. If the telephone call was in furtherance of the conspiracy, as alleged in the indictment, it was clearly a criminal act within the phrase of 18 U.S.C.A., § 88: `And one or more of such parties do any act to effect the object of the conspiracy.' * * *" (Italics ours.)

A more serious question is presented by the District Judge's overruling a motion to suppress and exclude certain evidence obtained through the execution of a search warrant, which (appellants claim) failed to comply with the requirements of the Fourth Amendment to the Constitution of the United States. Yet we think the District Judge ruled correctly here in denying this motion and in admitting (over the objection of appellants) the evidence in question.

The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

These appellants were not in a position to take advantage of the Fourth Amendment, for that amendment, as its language indicates, is personal, and the rights thereunder granted relate not so much to the introduction of things in evidence in a criminal prosecution but rather to the avoidance of unreasonable searches of property as to which a person asserts some title or interest. The premises here searched were a garage building; the property seized was a still. And here these appellants asserted no claim whatever to any right, title or interest in either the garage building or the still. Nor is this a mere technicality of pleading or of evidence.

In Armstrong v United States, 16 F.2d 62, 65, certiorari denied 273 U.S. 766, 47 S.Ct. 571, 71 L.Ed. 881, District Judge Neterer (speaking for the Circuit Court of Appeals for the Ninth Circuit) said: "Nor does the record show that the defendant made any claim either to the premises searched or the property seized, and in the absence of such claim, cannot urge unreasonable search upon which to base a constitutional right." To the same effect, see, also, Chepo v. United States, 3 Cir., 46 F. 2d 70, 71; Shore v. United States, 60 App. D.C. 137, 49 F.2d 519, 522, certiorari denied 283 U.S. 685, 51 S.Ct. 656, 75 L.Ed. 1469; United States v. Crushiata, 2 Cir., 59 F.2d 1007.

Again, in the instant case, we do not think there was such cooperation between the state and federal officials as would make this case subject to the Fourth Amendment so far as the federal criminal prosecution is concerned. Here the case was originally worked up by the police of the City of Hopewell, Virginia. The warrant in question was issued by the Trial Justice of Hopewell, upon the affidavit of Sergeant Russell of the Hopewell Police. The aid of officials of the Alcoholic Beverage Control Department of the State of Virginia was invoked only just before the raid and seizure, in which these officials did take an active part. Federal officials had no knowledge whatever of the pending raid and seizure, and did not come into the case until some time later.

The stipulation here provides:

"That there is no understanding or agreement between the Hopewell authorities and the federal authorities whereby they may prosecute in the federal courts violations of law discovered by them, and for seventeen years prior to this seizure there had been no such prosecution.

"That there is no understanding between the State authorities and the federal authorities whereby the latter are obligated to take over prosecutions discovered by the former, but it is generally understood by State officers that when they have discovered a violation of federal as well as State law, they are at liberty to consult with the federal officers with a view to determining whether or not the federal officers adopt the case and institute a federal prosecution against the particular offenders; that they frequently do pursue this course and that frequently such cases are adopted by the federal authorities."

We do not interpret this stipulation as bringing the instant case within the doctrines of either Gambino...

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    ...14 F.2d 35; Matthews v. Correa, 2 Cir., 1943, 135 F.2d 534, 537; Chepo v. United States, 3 Cir., 1930, 46 F.2d 70; Kitt v. United States, 4 Cir., 1942, 132 F.2d 920; Grainger v. United States, 4 Cir., 1946, 158 F.2d 236; Goldberg v. United States, 5 Cir., 1924, 297 F. 98; Remus v. United St......
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    ...States, 92 F.2d 305, 307-308 (4th Cir. 1937); Fowler v. United States, 62 F.2d 656, 657 (7th Cir. 1932). But see Kitt v. United States, 132 F.2d 920, 922 (4th Cir. 1942). Justice Frankfurter said in Elkins that the "question has always been whether the offending search or seizure was conduc......
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    ...5 Cir., 96 F.2d 189; Fowler v. United States, 7 Cir., 62 F.2d 656; United States v. Butler, 10 Cir., 156 F.2d 897; with Kitt v. United States, 4 Cir., 132 F.2d 920; Sloane v. United States, 10 Cir., 47 F.2d 889. 5 Compare United States v. Jankowski, 2 Cir., 28 F.2d 800; Marsh v. United Stat......
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