37 F.2d 80 (8th Cir. 1929), 8616, Day v. United States

Docket Nº:8616.
Citation:37 F.2d 80
Case Date:December 16, 1929
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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37 F.2d 80 (8th Cir. 1929)




No. 8616.

United States Court of Appeals, Eighth Circuit.

December 16, 1929

         Harry B. Fleharty, of Omaha, Neb., for appellant.

         Edson Smith, Asst. U.S. Atty., of Omaha, Neb. (James C. Kinsler, U.S. Atty., Ambrose C. Epperson and George A. Keyser, Asst. U.S. Attys., all of Omaha, Neb., and Philip M. Aitken, Asst. U.S. Atty. of Lincoln, Neb., on the brief), for the United States.

         Before KENYON and BOOTH, Circuit Judges, and REEVES, District Judge.

         KENYON, Circuit Judge.

         Appellant was found guilty on each of eight counts of an indictment based on alleged violations of sections 3266, 3281, and 3282, Revised Statutes of the United States (26 USCA §§ 291, 306, 307).

         The first three counts charge the unlawful making of mash and the fermenting of mash fit for production of spirits, and the unlawful using of a still for the purpose of distilling at 1609 1/2 North Twenty-Fourth street, Omaha, Neb. The remaining counts charge similar violations of law at 1611 1/2 North Twenty-Fourth street. The facts are not in dispute. Some federal prohibition agents in Omaha, having some knowledge and much suspicion that stills were being operated in the second story of a building at North Twenty-Fourth street, which second story was divided into four apartments numbered 1607 1/2, 1609 1/2, 1611 1/2, and 1613 1/2, secreted themselves about 9:30 o'clock one night at a place near the rear of the building where they could watch the rear entrance; there being a rear stairway leading up to the second floor. Others of the force were secreted near the gate to the Zusman feed and coal yard, a place not far from the suspected building, where they knew sugar was sold. Observing a Ford car entering the Zusman yard and going

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out again shortly, they followed it as it proceeded down the road a short distance to the rear of the building under suspicion of harboring operating stills. It went into the yard. The prohibition agents saw appellant loading a sack of sugar onto his back from the Ford truck. They found some empty bottles or jugs in the truck but no liquors. It is claimed by the government, and seems to be conceded by appellant, that the officers then arrested him, although there is little competent evidence to show just when an arrest was made, if at all. He was then taken up the stairs and into one of the apartments, where there was a still in operation, where he was searched and certain papers consisting of receipts for payment of rents of the apartments where the stills were being operated, for telephone, yeast, gas, sugar, etc., were taken from his person against his protest. These were subsequently admitted in evidence against him. The officers had no search warrant or warrant for appellant's arrest. The officers searched the different apartments and found in two of them stills, 56 barrels of mash, and some gallon jugs of moonshine whisky. In the other two apartments nothing was found. Appellant was sentenced to six months' imprisonment in jail on each of the counts, the same to run concurrently, and was fined $1,000.

         There is one grave constitutional question presented, and the case stands or falls upon its determination, i.e., could the incriminating papers taken from appellant's person lawfully be used against him on the trial? They show that...

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