Boehm v. United States

• Decision Date: 03 June 1925
• Docket Number: No. 3372.,3372.
• Citation: 6 F.2d 497
• Parties: BOEHM v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

6 F.2d 497 (1924)

BOEHM v. UNITED STATES.

No. 3372.

Circuit Court of Appeals, Seventh Circuit.

July 19, 1924.

Order Affirmed on Rehearing June 3, 1925.

Charles A. Karch, of East St. Louis, Ill., for plaintiff in error.

L. V. Walcott, of East St. Louis, Ill., for the United States.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

ALSCHULER, Circuit Judge (after stating the facts as above).

The indictment is attacked on the ground that in it the search warrant itself is not set forth, and that in stating its substance it is not charged that it was "duly" issued, or that in substance. Such an indictment does not need to set out in full the search warrant. Blake v. United States, 71 F. 286, 18 C. C. A. 117; Dovel v. United States (7 C. C. A. June 18, 1924) 299 F. 948. But it should be pleaded sufficiently to inform the defendant of the nature of the charge, and protect him from being again put in jeopardy upon it. We believe the case falls fairly within the purview of section 1025, Rev. Stats. (Comp. St. § 1691):

"No indictment found and presented by a grand jury in any District or Circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant."

While the inclusion of the word "duly" in this connection would not have subjected the draftsman to the criticism of undue prolixity, we do not regard its omission as fatal to the pleading.

It is contended that the affidavit on which the search warrant was issued, as it is recited in the search warrant itself which was offered in evidence, does not make such showing as authorized the issuance of the warrant, and that the case in this respect falls under the rule as stated by this court in Veeder v. United States, 252 F. 414, 164 C. C. A. 338. It was there held that, where affidavits do not describe the offenses in the commission of which the property to be seized was employed, nor show the relation of the property to any offense with sufficient particularity to enable an issuing magistrate to draw therefrom the necessary legal conclusion which would authorize the issuance of the warrant, the warrant issued thereon is void.

Here the warrant recites an affidavit which states positively that there is located, on the premises used for a soft drink parlor and grocery store, illicit distilling apparatus, coils,...