Cola v. United States
| Decision Date | 05 December 1927 |
| Docket Number | No. 5118.,5118. |
| Citation | 22 F.2d 742 |
| Parties | COLA v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dan T. Malloy, of Butte, Mont., for plaintiff in error.
Wellington D. Rankin, U. S. Atty., and L. V. Ketter and John Collins, Asst. U. S. Attys., all of Helena, Mont.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
Plaintiff in error was convicted upon four counts, charging, severally, the manufacture of intoxicating liquor, possession of property designed for that purpose, possession of liquor, and the maintenance of a nuisance. The evidence was in the main procured by a search of his premises at Meaderville, Mont., and, as stated in his brief, the only question here raised is of the validity of the search.
The premises consisted of a town lot, upon which was a small dwelling house, where the defendant, with his wife and child, had resided for several years. No one was at the premises at the time of the search, but upon going away four or five days prior thereto defendant had informed his neighbor where he could find the key, and had requested him to start a fire in the stove in case of cold weather, to avoid damage to the plumbing. Having been informed that liquor was being manufactured upon the premises, the prohibition agents went there about noon on November 30, 1926, and as they approached they detected a strong odor of fermenting mash. They had no warrant, either for a search or for the arrest of defendant, but on finding the door locked, and being informed by the neighbor, who observed them on the premises, of the absence of defendant, they raised a window and, entering by that means, made the search in question. In the house was furniture of various kinds, but, as they testified, it was in confusion, "bungled up," and "scattered around." There were also running water, electric lights, and telephone.
Finding nothing of criminal import in the rooms, the officers entered the cellar through a trap door from the kitchen or pantry, and there found a large quantity of wine, approximately 17 50-gallon barrels. Observing a small tunnel leading from the cellar, they crawled through it for about 30 feet, and came into a dugout, consisting of two compartments, directly under a garage. Here they found a complete 65-gallon still, measurably complete, with indications of prior operation, but not at the time in actual use; also 29 50-gallon barrels of mash and some other properties. Apparently the only way of approach to the dugout was through the tunnel. Soon after the officers returned to the house the defendant and his wife arrived, and following a conversation, which is not presently material, defendant was placed under arrest.
Upon the undisputed facts we feel bound to hold the house constituted the actual residence of the defendant and his family; its character was not affected by their temporary absence. Nor are we able to make any distinction in principle between discoveries made...
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State v. Mills, 3
...a dwelling house does not lose its character as such by the temporary absence of the occupant. Steeber v. U. S., supra; Cola v. U. S., 9 Cir., 22 F.2d 742; Annotation, 33 A.L.R.2d pp. When the officer was told by Laura Lewis that the defendant rented the back room in her dwelling house, he ......
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