De Bonis v. United States, 6014.

• Decision Date: 08 December 1931
• Docket Number: No. 6014.,6014.
• Citation: 54 F.2d 3
• Parties: DE BONIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

54 F.2d 3 (1931)

DE BONIS v. UNITED STATES.

No. 6014.

Circuit Court of Appeals, Sixth Circuit.

December 8, 1931.

D. F. Rendinell, of Youngstown, Ohio (David D. Neiman, of Youngstown, Ohio, on the brief), for appellant.

M. J. Wolpaw, of Cleveland, Ohio (Wilfred J. Mahon, of Cleveland, Ohio, on the brief), for the United States.

Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges.

DENISON, Circuit Judge.

Conviction under section 121, tit. 18, US CA, being section 65 of the Criminal Code. De Bonis was charged with shooting a prohibition agent who was about to make a search or seizure in the execution of his duty, and with intent by De Bonis to commit a bodily injury upon the officer, or deter or prevent him from discharging his duty.

Agent Watts and two other officers, on duty in an Ohio village, had observed a house apparently closed, but from which was coming a distinct odor of cooking mash. Believing that distilling was being here carried on, they returned the next evening about 10:30 and posted themselves about the rear of the premises, but in an adjoining lot. About an hour later their attention was drawn to an automobile, without lights, backing from the street into the driveway which would bring it alongside the house. Agent Watts then went around to the front of the house, still keeping outside the premises. The officers then watched an unloading and loading operation — five gallon cans of the type used to carry whisky being unloaded, apparently empty, and passed into a basement window, and similar cans, apparently heavy and full, being passed out and loaded into the machine. The man doing this work (afterwards found to be De Bonis) twice discontinued loading, walked about apparently looking and listening for any danger of interruption, and then resumed the loading. Being convinced that the car was about to start away, Watts left his place of concealment, and started running down the front sidewalk toward the driveway out of which the car would come. As he started, he called out "Federal Officers." Another agent crossed the side fence and followed Watts, but inside the fence. The third agent climbed the fence in the rear and came toward the car. After Watts had run a distance on the sidewalk, he vaulted the fence to cross toward the car. Just then De Bonis, standing by the car, fired one shot which struck Watts, but did not make a serious wound. Immediately De Bonis was taken by the third agent, before the other two reached the car. Thereupon sixteen five-gallon cans full of whisky were found in the car; and in the house, which was without furniture, there was a large still with other apparatus, a large number of mash barrels, and quantities of sugar and whisky.

No claim of error was preserved and assigned, excepting that a verdict should have been directed for defendant — and this for two reasons: That the officers were not engaged in a lawful search or seizure, and that defendant did not know their official character. Passing by the objection that the bill of exceptions does not purport to contain all the evidence, and the further objection that there is no proof that defendant owned or had any...