Myers v. United States

• Decision Date: 22 March 1927
• Docket Number: No. 7447.,7447.
• Citation: 18 F.2d 529
• Parties: MYERS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 529 (1927)

MYERS et al. v. UNITED STATES.

No. 7447.

Circuit Court of Appeals, Eighth Circuit.

March 22, 1927.

Norman H. Wright, of Oklahoma City, Okl. (S. S. Gill, of Oklahoma City, Okl., on the brief), for plaintiffs in error.

Roy St. Lewis, U. S. Atty., of Oklahoma City, Okl. (Leslie E. Salter, Asst. U. S. Atty., of Oklahoma City, Okl., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and SYMES, District Judge.

VAN VALKENBURGH, Circuit Judge.

The defendants, husband and wife, were convicted of having in their possession on or about the 16th of May, 1925, in Oklahoma county, in the Western district of Oklahoma, intoxicating liquor contrary to the provisions of the National Prohibition Law (Comp. St. § 10138¼ et seq.). This liquor, consisting of a gallon of alcohol, was put up in pint bottles of the kind in which such liquor is usually kept for sale. The information charged the defendant Dave Myers with two prior convictions for the unlawful possession of intoxicating liquor under the same act. At the trial the information was amended by the withdrawal of the second of these prior convictions. The one remaining was admitted. The jury returned a verdict of guilty against both defendants — against Myers for a second offense as charged in the information. The court accordingly sentenced him to be confined for a period of three months in the county jail. Mrs. Myers was fined in the sum of $50.

The five errors assigned are grouped by counsel for plaintiffs in error into three questions or propositions. The first point made is that the evidence adduced against the defendants was secured by state officers by a search under an alleged invalid search warrant, and therefore was admitted in violation of the constitutional rights of the defendants. Conceding, without deciding, that the search warrant was invalid as claimed, nevertheless the admissibility of the evidence found by the state officers acting thereunder is not affected, since no federal officer participated in the search or was in any way connected therewith. Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Elam v. United States (C. C. A. 8) 7 F.(2d) 887.

It is next urged that the possession of intoxicating liquor in the home of defendants, without any evidence of sale or unlawful disposition thereof, is not a violation of the National Prohibition Act. Section 33 of that act provides as follows:

"After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title. Every person legally permitted under this title to have liquor shall report to the commissioner within ten days after the date when the Eighteenth Amendment of the Constitution of the United States goes into effect, the kind and amount of intoxicating liquors in his possession. But it shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his...