Dovel v. United States
| Decision Date | 18 June 1924 |
| Docket Number | 3364. |
| Citation | 299 F. 948 |
| Parties | DOVEL et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Walter V. Dysert, of Danville, Ill., for plaintiffs in error.
L. T Allen, of Danville, Ill., for the United States.
Before EVANS, and PAGE, Circuit Judges, and FITZHENRY, District Judge.
Defendants are charged with having resisted and opposed certain prohibition agents who were attempting to serve a search warrant.
The information is attacked because it does not appear that the prohibition agents were such 'officers' as were authorized to serve search warrants. This contention is based upon the assertion that the officer to whom the search warrant runs must be a 'civil officer,' and to be a 'civil officer' nomination by the President and confirmation by the United States Senate, etc., must have occurred. We are of the opinion that the prohibition agents to whom the writ was directed were 'civil officers,' as that term is used in the search warrant statute (Comp. St 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4f). United States v. American Brewing Co. (D.C.) 296 F. 772; United States v. Syrek (D.C.) 290 F. 820; United States v. O'Conner (D.C.) 294 F. 584; United States v. Daison (D.C.) 288 F. 199; United States v Edwards (D.C.) 296 F. 512.
The information is also attacked because the search warrant upon which the offense is based is not set forth haec verba. This was unnecessary. In the present case the search warrant had been lost and an exact copy could not be reproduced. Moreover, the rule of pleading requiring an information or indictment to set forth, haec verba, the instruments which constitute a necessary link in the government's prosecution, should not be extended. It should be limited to those instances where the written instrument is an essential part of the offense charged, as in forgery, counterfeiting money, or threatening letters. Where the gist of the offense was resistance to an officer, the authority of the officer was an incidental fact, a link in the chain of evidence, but did not in and of itself constitute the offense.
The indictment clearly informed the defendants that they were charged with having, on a specified date and at a certain place, willfully and unlawfully obstructed, resisted and opposed certain prohibition agents who were serving a search warrant issued by a commissioner for the Eastern district of Illinois. Defendants, therefore, knew the precise nature of the offense charged, and were enabled to prepare fully any defense that existed. They are likewise enabled to plead a conviction therefor as against any subsequent pros...
To continue reading
Request your trial
-
Sparks v. United States
...warrant is not illegal. United States v. Bachelder, Fed.Cas.No. 14,490; United States v. Pitotto, 267 F. 603 (D.C.); Dovel v. United States, 299 F. 948 (C.C.A.7); Falcon v. O'Connell, 113 Me. 30, 92 A. 932; Commonwealth v. Martin, 105 Mass. The search warrant must conform to the constitutio......
-
Altshuler v. United States
...question was, of course, not possible and, therefore, was not known. We shall start with the assumption, on authority of Dovel v. United States (C. C. A. 7) 299 F. 948; Raine v. United States (C. C. A. 9) 299 F. 407, and on the reasoning of United States v. American Brewing Co. (D. C.) 296 ......
-
United States v. Dentice
...illegal. * * *" This line of reasoning appears to have been earlier adopted in the Seventh Circuit in the case of Dovel v. United States, 299 F. 948, 949 (7th Cir. 1948), when the Court "* * * The gist of the action is resistance to one serving a search warrant. There can be no unlawful res......
-
United States v. Sands, 10414.
...there can be no unlawful resistance without a valid search warrant. The Circuit Court of Appeals of the Seventh Circuit in Dovel et al. v. United States, 299 F. 948, reversing a conviction for resisting an officer, at page 949, "An examination of the record shows that the search warrant, th......