Cofer v. United States

• Decision Date: 30 January 1930
• Docket Number: No. 5548.,5548.
• Citation: 37 F.2d 677
• Parties: COFER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

37 F.2d 677 (1930)

COFER et al. v. UNITED STATES.

No. 5548.

Circuit Court of Appeals, Fifth Circuit.

January 30, 1930.

W. I. Stone, of Coffeeville, Miss., and Wade H. Creekmore and H. H. Creekmore, both of Jackson, Miss. (Creekmore & Creekmore, of Jackson, Miss., Stone & Stone, of Coffeeville, Miss., and Gore & Gore and A. A. Pogue, all of Marks, Miss., on the brief), for appellants.

Lester G. Fant, U. S. Atty., of Holly Springs, Miss., for appellee.

Before BRYAN and FOSTER, Circuit Judges, and GRUBB, District Judge.

GRUBB, District Judge.

The four appellants were convicted in the District Court of the United States for the Northern District of Mississippi for a violation of section 242, title 18, of the U. S. Code (18 USCA § 242), in conspiring to deter, by force, intimidation, or threat, one Pruitt, a witness before a court of the United States, from testifying in a matter pending therein freely, fully, and truthfully, and to injure said witness on account of his having so testified. They were sentenced under their convictions and have appealed from the judgments of conviction and the sentences imposed upon them. The evidence showed that the witness, Pruitt, was murdered by being shot with buck shot fired from two guns at a place near his home, and the government contended that the appellants conspired to bring about his murder.

The appellants question the sufficiency of the indictment upon the grounds that it does not show that the court in which the witness had testified and was again to testify had jurisdiction of the case in which he was a witness, and further because the nature of his evidence, past and prospective, was not set out in the indictment. We think the indictment sufficiently shows the jurisdiction of the court in which the case was pending, and that it was not required to set out the nature of the evidence or expected evidence of the witness.

The appellants also complain of the introduction of certain evidence procured by three separate searches and seizures of the premises of the appellants Ellerson Cofer, Lee Cofer, and Floyd Carr. The seizures and searches were made by the sheriff of Yalobusha county, Mississippi, under three search warrants sworn out by him before a justice of the peace of that county. The search warrants all directed the sheriff to search for and to seize, if found, "said intoxicating liquors and such stills or integral parts thereof, vehicles, receptacles, vessels, and appliances as are used in connection therewith." The warrants authorized no search or seizure of guns or shells. The sheriff in executing the warrants seized at the home of the appellant Ellerson Cofer, who at the time of the search was in jail, in a locked trunk four shells loaded with buckshot, which were later introduced in evidence by the government upon the trial. The sheriff also presented a search warrant to the wife of the appellant Lee Cofer, at his home, and asked her for an automatic shotgun, which she gave him and which he and his posse loaded with shells procured by them for the purpose and fired from the gun and then returned the gun to the wife of Lee Cofer. The same automatic gun was afterwards retaken by the officers from the possession of one Noel Carr when he was arrested. The sheriff also upon a similar search warrant presented to appellant Floyd Carr, at his home, demanded and secured a Winchester pump gun, which he and his posse also loaded with shells and fired, and after doing so returned the pump gun to Floyd Carr, from whom it was subsequently taken by officers upon the arrest of Floyd Carr. The two guns referred to and the shells which had been exploded in each by the sheriff were introduced upon the trial by the government. No complaint is made by appellants because of the introduction of the two guns, they having been legally seized when Noel Carr and Floyd Carr were arrested. Complaint is made of the introduction of the shells, those taken from the trunk of Ellerson Cofer, and those exploded in the guns taken from the premises of Lee Cofer and Floyd Carr on December 9th, the time of the search of their premises by the sheriff.

The search warrant did not authorize the seizure of the shells in Ellerson Cofer's trunk. It described the property to be searched for and seized as intoxicating liquor, stills and their appurtenances. The sheriff was not a trespasser on Ellerson Cofer's premises, but he had no authority to seize any property not described in the search warrant. His testimony shows that he did not and could not have seen the shells as they lay in the trunk well enough to have described them, or to have read the inscriptions on them. No one was at Ellerson Cofer's home when it was searched. Three government prohibition agents accompanied the sheriff on the search. The sheriff testified that the purpose of seizing the guns and shells and firing the guns was to get evidence in the conspiracy case, and that the shells were turned over to the agent of the Department of Justice, who testified that he had asked the sheriff for help in getting evidence in the conspiracy case, and that he told the sheriff that he wanted him to look out for the guns, when he searched the appellants' houses for liquor, though he did not suggest the search to the sheriff.

It is clear that the search was participated in by United States prohibition officers and an agent of the Department of Justice, the latter having authority to investigate the conspiracy case. The action of the state officers, so adopted and participated in by federal officers, in searches and seizures, which were illegal, prevented the government from using the evidence obtained by such illegal searches and seizures. Ownership of the property seized in appellant is not essential, where, as in this case, it was taken from his premises and possession. The appellant, Ellerson Cofer, testified in his own behalf that he might have had buckshot shells of the kind claimed to have been...