Burns v. United States
| Decision Date | 22 January 1924 |
| Docket Number | 4077. |
| Citation | 296 F. 468 |
| Parties | BURNS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rehearing Denied March 14, 1924.
Hugh C Macfarlane and Howard P. Macfarlane, both of Tampa, Fla., for plaintiff in error.
Wm Gober, U.S. Atty., of Tampa, Fla., and Harry W. Reinstine Asst. U.S. Atty., of Jacksonville, Fla. (Maynard Ramsey, of Jacksonville, Fla., on the brief), for the United States.
Before WALKER and BRYAN, Circuit Judges, and CALL, District Judge.
This is an indictment in two counts. The first count charges Robert Burns and four other defendants with a conspiracy, under section 37 of the Criminal Code (Comp. St. Sec. 10201), to transport for beverage purposes intoxicating liquors in violation of the National Prohibition Act (Comp. St. Ann Supp. 1923, Sec. 10138 1/4 et seq.).
Several overt acts to effect the object of the conspiracy were charged, but it is only necessary to mention one, since the government does not contend that there was any evidence tending to prove the others. The overt act relied on by the government is that the defendants transported on the American auxiliary schooner C. C. Junior a quantity of intoxicating liquor, intended for beverage purposes, from a point in the Gulf of Mexico, near Boca Grande, to a point near Anclote Key, in the Southern District of Florida. The second count charges the unlawful transportation for beverage purposes of intoxicating liquors. All the defendants were convicted upon both counts of the indictment, but Robert Burns, hereinafter called the defendant, alone sued out writ of error.
The evidence for the government fails to show any transportation from near Boca Grande. It tends to prove the overt act relied on only by showing that two deputy collectors of customs and two prohibition agents, while cruising in a motor boat, at about 11 o'clock in the forenoon, sighted the schooner C. C. Junior six miles away, at a point near Anclote Key, which they estimated to be not more than one-fourth mile within the three-mile limit. These witnesses testified that when they sighted the Junior she was not anchored, but with sails set was proceeding on her voyage; that they pursued her for several hours, and seized her about eighteen miles at sea, though they had no search warrant; and that they found on board 245 cases of intoxicating liquor. Over the objection of the defendants samples of the liquor were offered in evidence.
The defendant assigns as error: (1) The denial of a motion to quash the indictment on the ground that it was vague and indefinite, and charges no offense; and (2) the overruling of the objection to the liquor as evidence on the ground that the seizure was illegal.
1. We are of opinion...
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Moore v. State
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Mitchell v. State, 1 Div. 258.
...its very nature unlawful, it need not be alleged that it was done unlawfully. Rumely v. United States, 2 Cir., 293 F. 532; Burns v. United States, 5 Cir., 296 F. 468. where an act may be either lawful or unlawful, as is the case here, the indictment must allege that it was done unlawfully. ......
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THE METMUZEL, 3119.
...at sea, and the court intimated that, had they occurred within the twelve-mile limit, the libels might have been sustained. Burns v. U. S. (C. C. A. 5th) 296 F. 468, was a prosecution for conspiracy to violate the National Prohibition Act; and the holding was that the mere fact that a vesse......
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United States v. Burns
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