Awalt v. United States

• Decision Date: 27 March 1931
• Docket Number: No. 4394.,4394.
• Citation: 47 F.2d 477
• Parties: AWALT et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

47 F.2d 477 (1931)

AWALT et al. v. UNITED STATES.

No. 4394.

Circuit Court of Appeals, Third Circuit.

February 16, 1931.

Rehearing Denied March 27, 1931.

F. M. P. Pearse, of Newark, N. J., for appellant.

Phillip Forman, U. S. Atty., and Douglas M. Hicks, Asst. U. S. Atty., both of Trenton, N. J.

Before BUFFINGTON and DAVIS, Circuit Judges, and THOMPSON, District Judge.

DAVIS, Circuit Judge.

This is an appeal from a judgment entered upon the verdict of a jury finding the defendants guilty. The indictment contained three counts. The first charged conspiracy, the second transportation, and the third importation of a large quantity of intoxicating liquor contrary to law.

The defendants were the captain and mate of the vessel Malbo. Members of the Coast Guard at Little Egg Harbor Inlet on the Atlantic Ocean, Atlantic county, N. J., observed the Malbo proceeding up the Inlet. They went out to the vessel. Cecil M. Guthrie, one of the members of the Coast Guard, boarded the Malbo and asked the captain with what he was loaded, and he replied, "Booze, rum." Thereupon the defendants were arrested, and the Malbo with the liquor was seized and turned over to the captain of the Coast Guard.

The defendants say that there was nothing suspicious about the vessel or her actions upon which probable cause for her seizure and the arrest of the defendants could be predicated, that the seizure and arrest were illegal and it was error to refuse to suppress the evidence obtained through boarding the vessel, and that, when Guthrie went on board the Malbo he should have asked for the vessel's manifest.

If there had been a manifest on board, it would have disclosed only what the captain willingly told Guthrie. The captain, when asked what he had on board, could have produced the manifest or told Guthrie what the cargo of the vessel was without producing it. He had both courses open to him, and he voluntarily chose the latter, and he cannot blame the Coast Guard for what he himself did. Where the defendant admits a fact, as here, that tends to show that the law is being violated, it is not error to receive in evidence the liquor seized, although the officer seizing it was not armed with a search warrant. The evidence sought to be suppressed was obtained after the admission that the Malbo was loaded with "booze, rum," and under these circumstances the evidence was legally admitted. Hilt v. United States (C. C. A.) 12 F.(2d) 504. Section 581 of the Act of September 21, 1922 (42 Stat. 858 19 USCA § 481) relating to "Boarding Vessels," authorizes officers of the Coast Guard to go on board of any vessel at any place within the United States or within four leagues of the coast thereof "to examine the manifest and to inspect, search, and examine the vessel * * * and every part thereof, and any person, trunk, or package on board," etc., without the necessity of establishing probable cause or procuring a search warrant. Arch et al. v. United States (C. C. A.) 13 F.(2d) 382; Maul v. United States, 274 U. S. 501, 529, 530, 47 S. Ct. 735, 71 L. Ed. 1171.

The defendants say that they cannot be prosecuted for a violation of the National Prohibition Act because forfeiture proceedings against the Malbo had been begun for violations of the Tariff Act before the filing of the indictment against them; that the Tariff Act and the National Prohibition Act are each complete in themselves, and the government may not forfeit the vessel under the Tariff Act and prosecute the defendants under the National Prohibition Act.

Section 26 of title 2 of the National Prohibition Act (27 USCA § 40) provides that, whenever a vehicle is seized in the unlawful transportation of intoxicating liquor and the person in charge thereof arrested, "the court upon conviction of the...