McBride v. United States
| Decision Date | 03 November 1922 |
| Docket Number | 3849. |
| Citation | 284 F. 416 |
| Parties | McBRIDE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Harry T. Smith, William G. Caffey, and Joseph N. McAleer, all of Mobile, Ala., for plaintiff in error.
Aubrey Boyles, U.S. Atty., of Mobile, Ala.
Before WALKER, BRYAN, and KING, Circuit Judges.
Certain United States prohibition officers were out looking for persons suspected of violating the National Prohibition Act (41 Stat. 305). They came to a large inclosure, on the gate of which was a sign: 'Vicious Dog-- Hail before Entering.' Inside was a dwelling house, and in a smaller inclosure a stable or barn at some distance from the road and dwelling. The house was unoccupied. There being no signs of any dog or person, they entered the first gate without hailing, and were proceeding to the stable. When about to enter the stable lot, they plainly perceived the fumes of whisky in process of manufacture. Entering the stable, they discovered a trapdoor leading to a cellar below the stalls and saw a light and the steam of the whisky being manufactured coming out. In the cellar they found a 75-gallon still in operation. Two negroes were in charge whom they arrested. A quantity of beer and 12 quarts of corn whisky were on hand, which they poured out.
After this, McBride drove up in a buggy. The officers informed him what they had done, that they were holding the negroes, and asked him what he had to say about it. He answered that the negroes had nothing to do with it; that he was responsible and had the still operated, and that a white man was operating it. The premises belonged to McBride, but no one was living on them at the time. At McBride's request, the officers agreed that he could come into Mobile the next morning and bring the two negroes with him, and he stated he would bring the other white man also, and no further arrests were then made. The officers took possession of the still and copper worms, caps, and connections.
An indictment was found against McBride, containing three counts. The first count charged him with unlawfully manufacturing, selling, bartering, transporting, delivering furnishing, and possessing intoxicating liquors contrary to the statute of the United States; the second, with unlawfully having and possessing a still and distillery apparatus designed to manufacture intoxicating liquors intended for use in violation of the National Prohibition Act; the third, with unlawfully carrying on the business of a distiller of spirituous liquors with intent to defraud the United States of the tax on the spirits distilled by him.
Just before the trial, McBride petitioned the court for the return of the still and other property seized by the United States officers, on the alleged ground that the federal officers went on petitioner's premises without any search warrant or other legal proceeding, but were trespassers, and took said property by means of such trespass. The officers justified on the ground that they had entered the premises after smelling fumes of whisky then being made in violation of law, and that McBride had admitted the ownership and operation of the still while it was in actual operation; that they had seized the property as forfeited to the United States, and held such as they had as the property of the United States. The court denied the petition.
On the trial of McBride, the officers testified as above, and, it being admitted that when they entered the premises and the stable they had no warrant, the defendant objected to their testifying, on the ground that their testimony was based on what they had discovered by such entry. Objection also was made to evidence of the confession of McBride on the single ground that no competent proof of the corpus delicti had been made; the testimony of the federal officers being illegal for the reasons above alleged. Both of these objections were overruled, and under the charge of the court the jury found McBride guilty under the second and third counts of the indictment.
The only points presented in the brief or on the oral argument are the refusal of the court to order the property taken by the officers returned to the defendant, the refusal to exclude the testimony of the federal officers, on the ground that knowledge of the facts testified to was acquired by means of an entry on the premises aforesaid without search warrant or other legal process, and the admission in evidence of the confession of McBride over the objection that there was no legal proof of the corpus delicti. It is now urged also that there was no sufficient evidence that the confession was voluntarily made.
These points present the substantial questions raised in the case. No others having been insisted on in the brief, or argument, these alone will be considered. Sun Co. v. Vinton Petroleum Co., 248 F. 623, 160 C.C.A. 523; Erie R. Co. v. Schleenbaker, 257 F. 667, 168 C.C.A. 617.
The court did not err in refusing to exclude the testimony of the prohibition officers of what they discovered and did after entering the stable. Neither the defendant nor any one else was living on the premises at the time. At the outer gate was a sign which, instead of forbidding entrance into the lot, warned of a vicious dog and enjoined a hail to be first given. Seeing no dog, or any person, the officers entered the lot. There is no evidence that they would have attempted to enter any building, had they not discovered by the sense of smell that a crime was being at the time committed. They entered the stable and found the crime in progress.
The objection to the testimony is based on the Fourth Amendment to the Constitution of the United States, which provides:
'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,' and on that portion of the Fifth Amendment which provides that no person 'shall be compelled in any criminal case to be a witness against himself.'
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