Benton v. United States
Decision Date | 03 April 1934 |
Docket Number | No. 3568.,3568. |
Citation | 70 F.2d 24 |
Parties | BENTON v. UNITED STATES. |
Court | U.S. Court of Appeals — Fourth Circuit |
Norma Janet Winburn, of Greensboro, N. C. (R. C. Jennings, of Salisbury, N. C., on the brief), for appellant.
J. R. McCrary, U. S. Atty., and Joseph T. Allen, Asst. U. S. Atty., both of Greensboro, N. C.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
The appellant, hereinafter referred to as defendant, was convicted in May, 1933, in the District Court of the United States for the Middle District of North Carolina, at Wilkesboro, under an indictment charging him with violation of sections 3296 and 3450, R. S. U. S. (U. S. C., title 26, §§ 404, 1181, 1182 26 USCA §§ 404, 1181, 1182). At the trial evidence secured under a search warrant was offered against the defendant, and in apt time a motion was made to quash the warrant and suppress the evidence secured by the search. This motion the court denied. Upon the verdict of the jury, the defendant was fined $500 and sentenced to be imprisoned one year and one day. From this judgment of the court this appeal was brought.
The main point relied upon on behalf of defendant was the alleged invalidity of the search warrant under which the evidence was secured. The warrant in question read as follows:
On the back of said search warrant appears the following:
It is settled beyond controversy that any statutory requirements with respect to the search of a private dwelling must, under the Fourth Amendment to the Constitution of the United States, be strictly adhered to, and such statutes must be strictly construed. A study of the search warrant in this case leads us to the conclusion that it fulfills all of the requirements of this rule of construction and of the statutes.
One of the principal points raised as to the validity of the warrant is that it failed to contain on its face the requirement as provided by the statute that it must be returned in ten days and that such failure rendered it fatally defective. This requirement will be found in section 11, title 11 of the Espionage Act of June 15, 1917 (section 621, title 18, USCA). The act provides within what time the search warrant must be executed and returned, and, after the expiration of this time, unless executed, the warrant is void, but we do not think it is necessary to incorporate this provision in the warrant itself. Fry et al. v. U. S. (C. C. A.) 9 F. (2d) 38.
The execution of the warrant within ten days sufficiently complies with the statute. The making of the return is a ministerial act which may be done in a reasonable time after execution of the warrant. In the instant case the warrant was issued on the 18th day of March, 1932, and directs the officer, among other things, "to report and act concerning same as required of you by law." The warrant was executed on March 19, 1932, and the return was sworn to before the commissioner on the 23d day of March, 1932, so that only one day elapsed between the issuing of the warrant and the execution of same and only five days elapsed between the issuing of the warrant and the making of the return.
While the search warrant was issued under one statute and the prosecution was under another statute, the evidence secured by the warrant, if properly secured, could be used in the prosecution for another crime. Bookbinder v. U. S. (C. C. A.) 287 F. 790, certiorari denied by Supreme Court, 262 U. S. 748, 43 S. Ct. 523, 67 L. Ed. 1213; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647.
Another point relied upon on behalf of the defendant is that...
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