31 F.2d 204 (E.D.Pa. 1928), 2954, United States v. Kardos

Docket Nº:2954.
Citation:31 F.2d 204
Party Name:UNITED STATES v. KARDOS et al.
Court:United States District Courts, 3th Circuit, Eastern District of Pennsylvania

Page 204

31 F.2d 204 (E.D.Pa. 1928)

UNITED STATES

v.

KARDOS et al.

No. 2954.

United States District Court, E.D. Pennsylvania.

December Term, 1928

George W. Coles, U.S. Atty., of Philadelphia, Pa.

John F. McEvoy, of Philadelphia, Pa., for defendants.

THOMPSON, District Judge.

The defendants were indicted, tried, and convicted upon an indictment containing two counts. The first count charged the unlawful manufacture of intoxicating liquor, and the second charged the unlawful possession of property designed for the manufacture thereof.

At the trial, the evidence introduced on the part of the government was that two prohibition agents went to the premises of the defendants armed with a search warrant. The warrant was supported by the affidavit of one of the agents, setting out that on February 13, 1928, he had the premises under observation, and observed a truck loaded with corn sugar enter a garage on the premises, and detected the odor of mash in a state of fermentation and of moonshine whisky emanating from the garage, and that he was thoroughly familiar with the odor of mash and moonshine whisky.

It appeared from the testimony that the defendants lived in a brick house upon the premises, and that at the rear of the house was a private garage, built of cement blocks and abutting against the rear wall of the dwelling house; that the brick house was used and occupied by the defendants as a dwelling; that the garage in question had its entrance upon a private lane leading into the premises; and that a window of the dwelling house opened into the garage.

One of the prohibition agents knocked at the door of the dwelling house. The father of the defendant, Frank Kardos, opened the door, and the agent was allowed to enter the house. He passed through two fully furnished rooms, and came to a rear window opening into the garage. Through the window he saw a still in operation, and saw two men open the garage door and run from the premises. He entered the garage through the window.

A motion to strike out the evidence obtained in this manner, and also a motion to direct a verdict for the defendant, were made and denied, and exception allowed.

Two contentions were made at the argument: First, that the search warrant was illegal as issued without probably cause. It is contended that the observation of a truck loaded with corn sugar entering the...

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