Baron v. United States

Citation286 F. 822
Decision Date06 February 1923
Docket Number3704.
PartiesBARON et al. v. UNITED STATES. [1]
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

E. H Moore, of Youngstown, Ohio (Moore, Barnum & Hammond, of Youngstown, Ohio, on the brief), for plaintiffs in error.

Berkeley W. Henderson, Asst. U.S. Atty., of Cleveland, Ohio (E. S Wertz, U.S. atty., and Berkeley W. Henderson, Asst. U.S Atty., both of Cleveland, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

Baron was a wholesale liquor dealer in Brooklyn, N.Y., who had procured due permits to purchase whisky in Pittsburgh and ship it to Brooklyn. He withdrew from a Pittsburgh distillery warehouse 500 cases-- being five truck loads-- and started the transportation. Barnett accompanied the trucks as guard. When they had reached Youngstown, Ohio, on their journey to Brooklyn, the whisky was seized, and Baron and Barnett, with others, were arrested. They were later indicted, with several others, and were charged in count 6 of the indictment with a conspiracy to violate the National Prohibition Act (41 Stat 305), by using permits for the withdrawal and transportation to Brooklyn of whisky for medicinal purposes as a subterfuge to cover the intended and actual withdrawal and shipment to Youngstown for sale there for beverage purposes. Baron and Barnett, and one other, were eventually put on trial; the others indicted were, for some reason, not brought to trial. Baron and Barnett were found guilty on three counts, including this one for conspiracy, and they separately assign error.

Baron complains because the court did not grant his request for continuance, made on account of his physical and mental unfitness to go to trial. This request involved an issue of fact which was thoroughly tried out and considered by the District Judge, and the request was denied. It is entirely plain that he did not abuse the discretion vested in him on that subject. The same conclusion must be reached as to Barnett's demand for a separate trial.

Barnett contends that there was not sufficient evidence to justify his conviction. The case against him is circumstantial and a verdict to the effect that his guilt was not established beyond reasonable doubt might well have been hoped for; but we think the case against him was one for the jury. There was ample justification for believing that the whole expedition was for unlawful purposes. Barnett was confessedly a member of the expedition; his defense was, in a measure, one of confession and avoidance. He admitted participation as far as the transportation had gone, but he claimed he supposed it was going on to Brooklyn, in accordance with the permits. A prosecution against a man who is thus prima facie implicated rightly appeals to a jury in a light somewhat different from that which is applied to a defendant who denies any participation; it is like the possession of stolen property, which in a practical sense must be explained so as to satisfy the jury. The claim that Barnett, in good faith, believed that in going to Youngstown he was on his way to Brooklyn might very well have been accepted; but the jury, which saw Barnett and heard him testify, was not obliged to believe his statement to that effect.

Further, there was testimony tending to show that Barnett had gone to Youngstown from Pittsburgh with Baron on the occasion a few days before (not earlier than May 7; May 8 is the earliest date given), when Baron made his alleged arrangement with a Youngstown official for permission to sell in Youngstown this expected shipment; that there was about then a registration at a Youngstown hotel by 'H. Lewis, Pittsburgh'; and that immediately after Barnett's arrest, he registered at the police station as 'H. Lewis, Pittsburgh.' These later things, by themselves, would be only suspicious circumstances which would be-- we assume-- unsatisfactory as the sole support of a conviction; but they tend to confirm the inferences to be drawn from the remainder of the situation, as described, and the verdict of guilty against Barnett should not be disturbed by an appellate court on this ground.

After Baron's arrest he was searched, and upon him were found what seemed to be copies of several letters written by him from Pittsburgh to associates in Brooklyn during the few days before this first Youngstown trip was taken. These letters were received in evidence, and Baron and Barnett severally complain. Baron suggests violation of the Fourth and Fifth Amendments. Passing by the doubt whether the federal agents were responsible for the search and seizure, and passing by the effect of such doubt, we see no unreasonable search and seizure with resulting compulsory evidence by Baron against himself. He had been arrested, although without warrant; but there was clearly probable cause to believe him guilty of a felony. His temporary 'booking' on a misdemeanor was not inconsistent. His arrest was therefore lawful, and to search the person of one lawfully arrested is not such an unreasonable seizure of evidence found on him as to prohibit its use upon his trial. 5 C.J. 401, 405, 416, 434; Weeks v. U.S., 232 U.S. 383, 392, 34 Sup.Ct. 341, 58 L.Ed 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177. [1a] Baron next complains that these letters had no harmful tendency, except to show him guilty of other offenses of the same kind; hence that they should have been received in evidence only as bearing on his intent in the matter of this indictment, while the court...

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13 cases
  • Marron v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 5 Octubre 1925
    ...U. S. v. Wilson (C. C.) 163 F. 338; U. S. v. Murphy (D. C.) 264 F. 842, 844, 845; Vachina v. U. S. (C. C. A.) 283 F. 35; Baron v. U. S. (C. C. A.) 286 F. 822, 824; Donegan v. U. S. (C. C. A.) 287 F. 641, 649; Agnello v. U. S. (C. C. A.) 290 F. 671, 684; Browne v. U. S. (C. C. A.) 290 F. 870......
  • Capriola v. United States
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 12 Octubre 1932
    ...Lee Dock v. U. S., 224 F. 431 (C. C. A.); Schwartzberg v. U. S., 241 F. 348 (C. C. A.); Oppenheim v. U. S., 241 F. 625 (C. C. A.); Baron v. U. S., 286 F. 822 (C. C. A.); Burns v. U. S., 279 F. 982 (C. C. A.); Talbott v. U. S., 208 F. 144 (C. C. A.); Wood v. U. S., 204 F. 55 (C. C. A.); Ader......
  • United States v. Kirschenblatt, 88.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 6 Diciembre 1926
    ...documents and other property found upon the person of one arrested. All may be used in the trial, so far as relevant. Baron v. U. S., 286 F. 822, 824 (C. C. A. 6); Browne v. U. S., 290 F. 870, 875 (C. C. A. 6); U. S. v. Kraus (D. C.) 270 F. 579; Dillon v. O'Brien, 16 Cox, Cr. Cas. 245; Peop......
  • State v. Harris
    • United States
    • Montana Supreme Court
    • 7 Julio 1972
    ...not compel him to become a witness against himself (Const., art. 3, § 18). (Browne v. United States, 6 Cir., 290 F. 870; Baron v. United States, 6 Cir., 286 F. 822.)' Also see: State v. Houchin, 149 Mont. 503, 428 P.2d 971; State v. Armstrong, 149 Mont. 470, 428 P.2d 611; State v. Callaghan......
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