Brown v. United States

• Decision Date: 15 June 1925
• Docket Number: No. 2335.,2335.
• Citation: 6 F.2d 522
• Parties: BROWN v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

6 F.2d 522 (1925)

BROWN v. UNITED STATES.

No. 2335.

Circuit Court of Appeals, Fourth Circuit.

June 15, 1925.

P. H. McEachin, of Florence, S. C. (P. H. Arrowsmith, of Florence, S. C., on the brief), for plaintiff in error.

Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C. (J. D. E. Meyer, U. S. Atty., of Charleston, S. C., on the brief), for the United States.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WADDILL, Circuit Judge.

Plaintiff in error was proceeded against by information filed in the United States District Court for the Eastern District of South Carolina at Charleston, charging that within the jurisdiction of said court, and without having a permit therefor from the Commissioner of Internal Revenue, be unlawfully, knowingly, and willfully maintained a room, house, building, vehicle, structure, and place known as the Gate City Filling Station where intoxicating liquor was then and there sold, kept, and bartered, in violation of title II of the National Prohibition Act, said room, house, building, vehicle, structure, and place constituting a common nuisance under the laws of the United States. To this information the defendant pleaded not guilty. A jury was impaneled and a verdict of guilty rendered, and judgment entered directing his imprisonment in jail for the term of ten months. This judgment, as well as certain rulings of the court during the trial, duly excepted to, forms the basis of this writ of error.

Upon the calling of the case, and before the jury was impaneled, the defendant through his counsel moved to suppress and exclude all evidence of whisky secured on the 29th of November, 1923, from the defendant's safe in his office at the Gate City Filling Station by national prohibition agents, because such evidence was obtained as the result of an unreasonable search and seizure, and without lawful search warrant.

The action of the court on this motion forms the basis of the first assignment of error, and the same is clearly without merit, as the court expressly declined at that stage of the case to rule upon the propriety of admitting the testimony, and postponed action thereon until the evidence was offered during the trial. This, however, was not done, the government relying upon the sufficiency of other testimony to sustain the prosecution. Windsor v. United States (C. C. A.) 286 F. 51, certiorari denied, 262 U. S. 748, 43 S. Ct. 527, 67 L. Ed. 1212; United States v. Williams (D. C.) 295 F. 219.

It should perhaps be stated in connection with that ruling that, so far as this court can judge, there was a lawful search warrant in the hands of the government's officers, and that, as a matter of fact, no actual seizure was made; the officer, Stacy, testifying as follows: "I had a search warrant at the time. I found five pints of whisky in the safe. Sam Brown opened the safe. We did not make any threat. We were in the filling station. The other officers went round one way. I stepped out. Sam defendant went inside and called me in. He said, `I have it.' I told the chief of police. Meantime Sam opened the safe, and I got the liquor out."

The second assignment of error relates to the same matter as that covered by the first, save that it is claimed that the court erred in permitting the defendant on cross-examination to be interrogated in reference to the finding and seizure of the whisky. While cases may arise in which it would be improper to permit cross-examination of an accused, as to evidence rejected...