Boyer v. United States
| Citation | 92 F.2d 857 |
| Decision Date | 24 November 1937 |
| Docket Number | No. 8511.,8511. |
| Parties | BOYER v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
W. O. Cooper, Jr., of Macon, Ga., for appellant.
T. Hoyt Davis, U. S. Atty., and H. G. Rawls, Asst. U. S. Atty., both of Macon, Ga.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
Appellant was convicted of unlawfully possessing unstamped and tax unpaid whisky and sentenced to serve a year and a day in the Atlanta penitentiary. He assigns error to the refusal of the court to grant a continuance of the trial; to the overruling of a motion to suppress evidence obtained by search of his premises; and on the ground that the evidence is not sufficient to support the conviction.
Briefly stated, the material facts appearing from the record are these: On January 12, 1937, Stewart, an investigator of the alcohol tax unit, and Smith, another officer, arrested one Collins, who at the time had in his possession one gallon of unstamped, tax unpaid whisky in his automobile. Collins told the officers that he had bought it from appellant, Boyer, at his store. The officers went to Boyer's store, which was only a few blocks away, with Collins. There Stewart went into the store and made inquiry for Boyer. Stewart testified Boyer came into the store from the kitchen and had a gallon jug of whisky in his hand, which he saw was unstamped. In answer to Stewart's inquiry, Boyer told him the jug contained whisky. Stewart did not have a search warrant, but Boyer told him he had no objection to his looking around. Stewart found about a gallon and a half of other unstamped, tax unpaid whisky in Boyer's kitchen. In an untenanted house next door to Boyer's store, he found some 18 gallons of unstamped, tax unpaid whisky. Boyer had a key to this building and accompanied Stewart in making his search. Boyer testified that he asked Stewart if he intended making a case out of the occurrence, and Stewart said he would be easy on him, and he told Stewart he had sold the whisky to Collins. He also testified he had the whisky in his home for his own use, with no intention of selling it. He disclaimed any knowledge of the whisky in the house next door. Boyer was taken before a United States Commissioner, pleaded guilty to the charge, was remanded to the grand jury, and released on bail. Notwithstanding his previous statements, he later denied that he had sold any whisky to Collins. The indictment was returned against Boyer and Collins on March 11, 1937. It contained only one count against Boyer, simply charging unlawful possession of unstamped tax unpaid liquor.
The case was put on the trial docket for a hearing in May, 1937. Boyer retained Mr. W. C. Cooper as his counsel. When the case was called for the purpose of setting the trial date, Cooper stated that because his presence was required in a state court he would be unable to represent Boyer, and asked for a continuance until he had...
To continue reading
Request your trial
-
Nueslein v. District of Columbia
...254 P. 788, 52 A.L.R. 477, 478; Fraenkel, Recent Developments in the Law of Search and Seizure (1928) 13 Minn.L.Rev. 1, 3; Boyer v. United States, 5 Cir., 92 F.2d 857 Both admission and waiver of search. 4 VIII Wigmore, Evidence (3d Ed. 1940) §§ 2184, 2186, 2263, 2264; Fraenkel, Concerning ......
-
Martin v. United States
...4 Cir., 29 F.2d 8; Occinto v. United States, 8 Cir., 54 F.2d 351; Shore v. United States, 61 App.D.C. 18, 56 F.2d 490; Boyer v. United States, 5 Cir., 92 F.2d 857. Error is also predicated upon the refusal of the court to instruct the jury that in order to convict they must find that appell......
-
People v. Gorg
...law for the court. Code Civ.Proc. § 2102; Steele v. United States No. 2, 267 U.S. 505, 511, 45 S.Ct. 417, 69 L.Ed. 761; Boyer v. United States, 5 Cir., 92 F.2d 857, 858; Marsh v. United States, 2 Cir., 29 F.2d 172, 173; United States v. Jankowski, 2 Cir., 28 F.2d 800, 802; Prichett v. State......
-
People v. Knox
...of law for the court. Code Civ.Proc., § 2102; Steele v. United States, 267 U.S. 505, 511, 45 S.Ct. 417, 69 L.Ed. 761; Boyer v. United States, 5 Cir., 92 F.2d 857, 858; Marsh v. United States, 2 Cir., 29 F.2d 172, 173; United States v. Jankowski, 2 Cir., 28 F.2d 800, 802; Pritchett v. State,......