Cooper v. United States

• Citation: 299 F. 483
• Decision Date: 12 May 1924
• Docket Number: 3125.
• Parties: COOPER v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

299 F. 483

COOPER v. UNITED STATES.

No. 3125.

United States Court of Appeals, Third Circuit.

May 12, 1924

Harry Heher, of Trenton, N.J., for plaintiff in error.

Walter G. Winne, U.S. Atty., of Hackensack, N.J., and Walter D. Van Riper, Asst. U.S. Atty., of Newark, N.J.

Before WOOLLEY, Circuit Judge, and McKEEHAN and SCHOONMAKER District judges.

WOOLLEY Circuit Judge.

After conviction and sentence Cooper sued out this writ of error and renewed his attack on the indictment seasonably made at the trial. The pertinent parts of this instrument, with the phrases in question italicized, are as follows:

'That * * * Victor Cooper and Michael Whitehill, * * * after the seizure of the said one hundred and twenty-six half barrels of beer lawfully made by Edward E. Lewis, Jr., a Deputy Collector of Internal Revenue for the First Collection District of the State of New Jersey, and Russel H. Skeels a Federal Prohibition Agent, the said Edward E. Lewis, Jr., and Russel H. Skeels, being then and there persons authorized to make searches and seizures and then and there in the execution of their duties as such in the search of the premises of the Sanitary Ice and Coal Company, Inc., * * * and then and there lawfully seized by the said Edward E. Lewis, Jr., and Russel H. Skeels, * * * did knowingly, willfully and unlawfully remove and cause to be removed from the premises of the said Sanitary Ice and Coal Company, Inc., about eighty-two half barrels of beer, being part and parcel of the said one hundred and twenty-six half, barrels of beer so seized, with the intent and purpose on the part of them, the said Victor Cooper and Michael Whitehill to forcibly remove from the lawful possession of the said Edward E. Lewis, Jr., and Russel H. Skeels, the said intoxicating liquors by them so seized; contrary to the form of the statute,' etc.

The government states that the offense which the indictment purports to charge is denounced by section 65 of the Criminal Code (Comp. St. Sec. 10233) in the words following:

'Whoever shall forcibly * * * prevent, impede, or interfere with any officer * * * of the internal revenue, * * * or any person authorized to make searches and seizures, in the execution of his duty, or shall rescue * * * any property which has been seized by any person so authorized; or whoever * * * after such seizure, in order to prevent the seizure or securing of any goods, wares, or merchandise by any person so authorized, shall * * * remove the same, shall be' fined or imprisoned, or both.

Reading the statute on the indictment, the defendant maintains that the indictment is bad because it charges an offense in the general terms of the statute and does not allege facts which constitute the offense (United States v. Mann, 95 U.S. 580, 583, 584, 24 L.Ed. 531; Armour Packing Co. v. United States, 209 U.S. 56, 83, 28 Sup.Ct. 428, 52 L.Ed. 681; Ledbetter v. United States, 170 U.S. 606, 18 Sup.Ct 774, 42 L.Ed. 1162; Kellerman v. United States (C.C.A.) 295 F. 796), specifying that it does not show the officers' authority for the search and seizure-- whether by search warrant or by virtue of their offices.

There is substance in this position. The offense denounced by the statute has two essential ingredients-- seizure of merchandise and rescue of merchandise seized. But there is more in it than this. There must be an unlawful rescue of merchandise lawfully seized. United States v. Page (D.C.) 277 F. 459. Hence, lawful seizure is not only an ingredient preliminary to an unlawful rescue but it is a prerequisite. And the lawfulness of the seizure must be shown. This element of the offense can not be pleaded by mere assertion or conclusion but must be pleaded by facts. United States v. Hallowell (D.C.) 271 F. 795. Such facts may conceivably be of different kinds: First, those that show lawful seizure because made under a valid search warrant when the officer making the search can make a valid seizure only by such authority; or, second, those that show the seizure lawful because made by one authorized by virtue of his office and without need of a search warrant.

The indictment alleges that the seizure in this case was made by two government officials, one a federal prohibition agent declared to be a person 'authorized to make such search and seizure (who), in the exercise of (his) duties as such in the search of the premises of the Sanitary Ice and Coal Company, * * * lawfully seized' certain liquors. With an exception to be mentioned presently, such an official is not authorized by virtue of his office or by statutory provision to enter upon the premises of another for purposes of search and seizure. His authority when it exists-- as it does at times-- must be conferred by a valid search warrant issued to him after his right to search premises and seize property thereon has been formally adjudicated. This is true unless we hold that Congress in enacting the National...