25 F.2d 238 (5th Cir. 1928), 5222, United States v. General Motors Acceptance Corp.

Docket Nº:5222.
Citation:25 F.2d 238
Case Date:April 05, 1928
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 238

25 F.2d 238 (5th Cir. 1928)




No. 5222.

United States Court of Appeals, Fifth Circuit.

April 5, 1928

Page 239

J. Osmond Middleton, Asst. U.S. Atty., of Montgomery, Ala. (Grady Reynolds, U.S. Atty., of Montgomery, Ala., on the brief), for the United States.

S. H. Dent, Davis F. Stakely, and Lee H. Weil, all of Montgomery, Ala., for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

This is a libel of information under R.S. Sec. 3450 (26 USCA §§ 1181, 1182; Comp. St. Sec. 6352), for the forfeiture of an automobile. The libel alleges that one Girdner used the automobile in removing, depositing, and concealing intoxicating liquor with intent to defraud the United States of the internal revenue tax thereon. The General Motors Acceptance Corporation intervened as claimant and secured possession of the automobile upon giving bond conditioned to return it on the day of the trial to abide the judgment of the court.

The automobile had been delivered to J. E. Frederick under his contract to purchase it on the installment plan, and the dealer had assigned to the Acceptance Corporation the title which he had retained to secure an unpaid balance of the purchase price. Frederick lent the automobile to Girdner, and it was seized while in the possession of the latter by federal prohibition agents, who found liquor in it upon which no tax had been paid. Girdner did not manufacture the liquor, but claimed it as his property. It was admitted that his possession was unlawful, and that the seizure was made without a warrant. The prohibition agents testified that they saw Girdner driving the automobile; that he stopped just in front of them on a street in Montgomery, and as he did so they approached, made a search, and found in the automobile 20 pints of whisky wrapped up in newspapers; that they then seized the automobile, arrested Girdner, and swore out a warrant for him 'under section 3450,' although they were endeavoring to enforce the National Prohibition Act, and were not trying to collect taxes on distilled spirits. The record is silent as to whether there was any further criminal proceeding against Girdner.

Testimony on behalf of the Acceptance Corporation and by Frederick was to the effect that neither had knowledge or reasonable cause to believe that Girdner intended...

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