Brown v. United States, 9530.

• Decision Date: 07 October 1932
• Docket Number: No. 9530.,9530.
• Parties: BROWN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

61 F.2d 363 (1932)

BROWN v. UNITED STATES.

No. 9530.

Circuit Court of Appeals, Eighth Circuit.

October 7, 1932.

William N. Jamieson, of Omaha, Neb., for appellant.

Lawrence I. Shaw, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb., and Edson Smith, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

PER CURIAM.

The appellant, who will hereinafter be referred to as the defendant, appeals from a judgment and sentence of six months in the county jail and a fine of $500. The indictment charged him with seven separate offenses: (1) Unlawfully making 1,000 gallons of mash fit for the production of alcoholic spirits; (2) unlawfully fermenting mash fit for the production of alcoholic spirits; (3) unlawfully separating 120 gallons of alcoholic spirits from a fermented mash; (4) unlawfully carrying on the business of a distiller, with intent to defraud the United States of America of the tax on the 120 gallons of spirits by him distilled; (5) unlawfully using a still of approximately 100 gallons capacity for the purpose of distilling alcoholic spirits from a fermented mash; (6) unlawfully having in his possession certain intoxicating liquor; (7) unlawfully having in his possession property designed for the manufacture of intoxicating liquor. All of these offenses were alleged to have been committed on or about July 8, 1930, in a residence in Sarpy county, Neb.

The defendant entered a plea of not guilty, was tried, and the jury returned a verdict of guilty upon all counts. It was upon this verdict that the judgment and sentence appealed from was pronounced.

The defendant made a motion to suppress the evidence obtained by the government officers as a result of the search of the premises in question, and to require the return of the property seized upon the search, which consisted of one still, one boiler, one coil, one pressure tank, twenty 50-gallon barrels of mash, and 120 gallons of whisky. It was claimed that there was a misdescription of the premises in the affidavits for the search warrant and in the search warrant itself. It is unnecessary to determine whether the search was or was not valid. Nowhere in the motion to suppress is it stated that the defendant either owned or occupied the premises searched or owned the property seized. There could be no violation of his constitutional rights, unless he had some proprietary interest in the property seized and the premises searched. Goldberg v. United States (C. C. A.) 297 F. 98; Rosenberg v. United States (C. C. A.) 15 F.(2d) 179; Chicco v. United States (C. C. A.) 284 F. 434; Graham v. United States (C. C. A.) 15 F. (2d) 740; Belcher v. United States (C. C. A.) 50 F.(2d) 573.

If the defendant was properly convicted under any of the counts of this indictment, except the possession counts, which are Nos. 6 and 7, there can be no reversal. Belcher v. United States (C. C. A. 8), supra.

The defendant contended in the court below that the mixture seized by the agents and referred to by them as "mash," and also by...