Bourke v. United States

• Decision Date: 05 November 1930
• Docket Number: No. 5607.,5607.
• Citation: 44 F.2d 371
• Parties: BOURKE v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

44 F.2d 371 (1930)

BOURKE v. UNITED STATES.^*

No. 5607.

Circuit Court of Appeals, Sixth Circuit.

November 5, 1930.

Leonard S. Coyne, of Detroit, Mich., for appellant.

Geo. S. Fitzgerald, of Detroit, Mich. (John R. Watkins, U. S. Atty., of Detroit, Mich., on the brief), for the United States.

Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges.

DENISON, Circuit Judge.

Agents of the customs service seized a quantity of whisky, located in Bourke's dwelling. Later, the government filed an information in the nature of a libel, asking condemnation, both under Rev. St. § 3450 (section 1181, tit. 26, USCA) and under section 25, tit. 2, National Prohibition Act (section 39, tit. 27, USCA); Bourke answered; the case was heard before the District Judge without a jury; condemnation was awarded; Bourke appeals.

We assume, for the purposes of the opinion, that the proceeding below was not so characteristically the trial of a case at law before the judge without a jury, as to require findings of fact and law as preliminary to a review, and that the appeal may be treated as if it were in equity.

Bourke's contention is that, as the seizure was in his home and without a search warrant, it was illegal, and that the property should be, without further inquiry, restored to his possession. The government contends that, under the provisions of the National Prohibition Act, there is no property right in this liquor, and that it would be against public policy to have the liquor restored to Bourke instead of being destroyed. The two broadly conflicting views on this subject are set out, on the one side by Judge Westenhaver's opinion in U. S. v. O'Dowd (D. C.) 273 F. 600, and by the Fifth Circuit Court of Appeals in Voorheis v. U. S., 299 F. 275; and, on the other side, by the Second Circuit Court of Appeals in U. S. v. Specified Quantity, etc., 7 F.(2d) 35. We are better satisfied to adopt the former view than the latter; and we hold that, if this liquor was such that no property right could exist under section 25 of title 2 of the National Prohibition Act (section 39, tit. 27, USCA), it ought not to be returned to the former possessor, but ought to be declared forfeit and be disposed of accordingly.

The question remains whether this liquor should be deemed to have this illicit character. The question is one of burden of proof. The possession of the liquor and its concealment by Bourke could have been lawful only if it had been manufactured and the taxes thereon paid before January 17, 1920, or if there had been a permit for liquor of later date. Again merely for the purposes of this opinion, and without accepting as controlling the provision of section 33, tit. 2 (section 50, tit. 27, USCA), which in cases within its scope puts the burden on the claimant, we assume that the burden is on the government; but we think it was met by the proofs sufficiently to shift the duty of going forward with...