Marron v. United States

• Decision Date: 31 January 1927
• Docket Number: No. 4948.,4948.
• Citation: 18 F.2d 218
• Parties: MARRON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.2d 218 (1926)

MARRON v. UNITED STATES.

No. 4948.

Circuit Court of Appeals, Ninth Circuit.

December 13, 1926.

Rehearing Denied January 31, 1927.

Hugh L. Smith and Chas. J. Wiseman, both of San Francisco, Cal., for plaintiff in error.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT and RUDKIN, Circuit Judges, and JAMES, District Judge.

JAMES, District Judge.

This case is brought here by writ of error, under which the plaintiff seeks to have set aside the judgment entered against him upon conviction of the crime of conspiring to violate provisions of the National Prohibition Act (Comp. St. § 10138¼ et seq.). Plaintiff in error was convicted of the same offense under the same indictment prior to his last trial. That judgment was reversed by this court. Marron v. United States, 8 F.(2d) 251. The reversal was ordered because the court concluded that the evidence received touching the seizure of intoxicating liquor without a search warrant at 2922 Sacramento street, San Francisco, was not admissible.

The indictment, in substance, charged the conspiracy to be one to manufacture, sell, transfer, deliver, transport, furnish, and have possession of intoxicating liquors, and to maintain a common nuisance by keeping for sale and selling such liquors at 1249 Polk street, in the city and county of San Francisco.

The first point urged is that the court erred, and that, because of such error, rights of plaintiff in error under the Fourth and Fifth Amendments to the Constitution were violated, in receiving in evidence a book of account and papers and documents of the accused. The argument to this point is directed solely to the alleged unlawfulness of the search made by the federal officers of the premises at 1249 Polk street, as a result of which, in addition to a large amount of intoxicating liquors, a book of account and several other papers were taken. The competency of the evidence, except for the complaint that it was illegally procured, is not presented.

The particular item of a documentary nature which the search disclosed was a book of account, referred to on the former hearing in this court and at the last trial as the "gray ledger." This court on the previous review held that there was no error in receiving in evidence the ledger. The evidence showing the authority of the officers who made the search, and the circumstances of the search, is admitted to have been the same at the last trial as at the former one. Where the evidence is the same, and the charge identical, a final decision on appeal establishes the rule, or law of the case, which will govern the second trial. And the former decision made by this court will be binding now. Counsel for plaintiff in error admit that the District Court made its ruling at the second trial in conformity with the decision rendered on the first writ of error, and with fairness state that they repeat the contention as to the validity of the search only for the purpose of protecting their position until the final determination of the case, unless the court may be persuaded to recede from its earlier view. We conclude at once that the former decision on the same point, made under the same charge on the same evidence, forecloses argument on the question. Hence the District Judge did not err in denying the motion to suppress the evidence referred to.

The rulings of the District Court, in admitting the testimony of the witness Walter Brand and Jens Neilsen, over the objections of the accused, and in advising the jury that it might consider that evidence, are assigned as error. The evidence showed that Marron was the lessee of the flat at 1249 Polk street, and it fairly showed that he was the principal owner of...