Cardenti v. United States
| Decision Date | 12 March 1928 |
| Docket Number | No. 5296.,5296. |
| Citation | 24 F.2d 782 |
| Parties | CARDENTI et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Walter McGovern, of San Francisco, Cal., for plaintiffs in error.
Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
Adjudged guilty upon an indictment charging in four counts, all under the internal revenue law (26 USCA), illegal acts pertaining to the maintenance of a still and the manufacture of intoxicating liquor, defendants bring error.
The point most earnestly urged is that the court should have suppressed the larger part of the evidence, because, as alleged, it was procured by an unlawful search and seizure. The indictment was filed on June 27, 1927, and on July 7th the defendants were arraigned and pleaded not guilty, whereupon the cause was set down for trial on August 2d. For some reason the trial did not come on until August 19th, upon which date, after the jury had been impaneled and sworn, the defendants, for the first time in court, indicated a desire to move for the suppression of the evidence. The motion thereupon presented was neither verified nor supported by any affidavit, nor did the defendants exhibit therewith the search warrant or the affidavit upon which it was issued.
Manifestly, the course so adopted, if it may be pursued as of right, would be attended with the most serious consequences. Assuming that the unverified averments of the motion presented issues of fact, the government could not have been required to meet them without reasonable time for preparation; and, should the motion have been ultimately sustained, the government might still have been able to prove its case, if given time to procure other evidence. But to that end the court could not, without peril, have discharged the jury and reset the case for a later date. Because of these embarrassments to the prosecution, and the resulting advantage to defendants, it would become the prevalent practice for defendants to wait until after a jury is impaneled and sworn before interposing such a motion. We do not say that in no case may defendants present the motion after trial has commenced, or demand opportunity to show in some appropriate manner during the course of the trial, that the evidence was procured in violation of their constitutional rights, but only that they must act with reasonable diligence in the assertion of their rights, or they will be deemed to have waived them. Segurola v. United States (decided November 21, 1927) 275 U. S. ___, 48 S. Ct. 77, 72 L. Ed. ___. See, also, Winkle v. United States (C. C. A.) 291 F. 493; MacDaniel v. United States (C. C. A.) 294 F. 769; Harkline v. United States (C. C. A.) 4 F.(2d) 526; Souza v. United States (C. C. A.) 5 F.(2d) 9; Rossini v. United States (C. C. A.) 6 F.(2d) 350; Armstrong v. United States (C. C. A.) 16 F.(2d)...
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Tomoya Kawakita v. United States
...No legal error is committed in imposing a severe sentence so long as it does not exceed the maximum set by statute. Cardenti v. United States, 9 Cir., 1928, 24 F.2d 782. Consult Stephan v. United States, 6 Cir., 1943, 133 F.2d 87, certiorari denied 318 U.S. 781, 63 S.Ct. 858, 87 L.Ed. 1148,......
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...is affirmed. McDOWELL, P. J., concurs. 1 As indicating that defendant's motion to suppress was not timely filed, see Cardenti v. United States, 9 Cir., 24 F.2d 782, 783(1); State v. Conner, 59 Idaho 695, 89 P.2d 197, 201(11); State v. Wansgaard, 46 Idaho 20, 265 P. 671, 672(2); State v. Jac......
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Robison v. Superior Court of City and County of San Francisco
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