Dukes v. United States

• Citation: 275 F. 142
• Decision Date: 21 July 1921
• Docket Number: 1900.
• Parties: DUKES v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

275 F. 142

DUKES v. UNITED STATES.

No. 1900.

United States Court of Appeals, Fourth Circuit.

July 21, 1921

Dobson & Vassy, of Gaffney, S.C., for plaintiff in error.

J William Thurmond, U.S. Atty., of Edgefield, S.C. (J. E Marshall, Asst. U.S. Atty., of Greenville, S.C., on the brief), for the United States.

Before KNAPP and WOODS, Circuit Judges, and BOYD, District Judge.

BOYD District Judge.

This case was tried in the District Court of the United States for the Western District of South Carolina, at the March term 1921. The plaintiff in error here, who was the defendant below, and will be referred to as defendant, was convicted judgment entered, and the case was brought by writ of error at the instance of the defendant to this court.

The defendant, who was without counsel here, submitted the case on the record without argument. The United States attorney for the Western District of South Carolina made oral argument and also filed brief. The indictment in the case is as follows:

'In the District Court of the United States in and for the District Aforesaid, at the September Term of 1920.

'The grand jurors of the United States, impanneled, sworn, and charged at the term aforesaid, of the court aforesaid, on their oaths present that one Moses Dukes, on the 25th day of December, in the year 1919, in the said division of said district, and within the jurisdiction of said court, did unlawfully remove, and did aid and abet in the removal of, certain distilled spirits, to wit, two and one-half gallons, upon which the tax imposed by law had not been paid, from a distillery to the grand jurors unknown, to a place other than a distillery warehouse provided by law, to wit, Cherokee county, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.'

'Second count. And the grand jurors aforesaid, upon their oaths aforesaid, do further present that at the time and place and within the jurisdiction aforesaid the said Moses Dukes did unlawfully conceal, and did aid and abet in the concealment of, certain distilled spirits, to wit, two and one-half gallons, which had theretofore been removed from a certain distillery to the grand jurors unknown, to a place other than the distillery warehouse provided by law, to wit, Cherokee county, he the said Moses Dukes, at the time he did so conceal, and did aid and abet in the concealment of, said distilled spirits, then and there well knowing the same to have been removed as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.'

The indictment, as will be seen, is drafted under section 3296 of the Revised Statutes (Comp. St. Sec. 6038), which section is in the following language:

'Whenever any person removes, or aids or abets in the removal of any distilled spirits on which the tax has not been paid, to a place other than the distillery warehouse provided by law, or conceals or aids in the concealment of any spirits so removed, or removes, or aids or abets in the removal of any distilled spirits from any distillery warehouse, or other warehouse for distilled spirits authorized by law, or in any manner other than is provided by law, or conceals or aids in the concealment of any spirits so removed he shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than two hundred dollars nor more than five thousand dollars, and imprisoned not less than three months more than three years.'

The testimony introduced at the trial was that of W. W. Thomas, sheriff of Cherokee county, S.C., and H. H. Lockhart, his deputy, both of whom were offered by the United States. Their testimony, in substance, was that, in consequence of information they had received substance, was that, in consequence of information they had received of the violation of the liquor laws, they went out together to the premises of the defendant on the 25th day of December, 1919, on what they called a raid. When they reached their destination they passed by the house in which the defendant lived, to where they saw several negroes congregating in the woods. They waited there a short while watching the negroes, and then went back to the house. When they arrived there several people, both white and colored, were on the outside. This was on the morning of Christmas Day, and the people on the outside were just standing around. Neither of the witnesses saw the defendant until Lockhart, who preceded Thomas, went around and walked in the back door of the house. The door was open, and the defendant was in the room standing to the right of the witness as the latter walked in. The witness saw on a table in the room a gallon jug and a quart can, both of which, upon examination, were found to contain corn whisky, the jug being about half full. The witness Lockhart had taken up the quart can, when the other witness, Thomas, came in at the front door. Neither one had a warrant of any kind, either for the arrest of the defendant or any other person on the premises, nor did either have a warrant for the search of the house or the premises. Witness Lockhart, when he saw the whisky in the jug and can, said: 'Mose, what are you doing with this? ' The defendant did not object to the coming in of the witnesses. Whilst in the room he told them that what was found in the jug and can was all the liquor there was in the house, but they might look around. After this, upon further examination, the witnesses found in an outhouse, about 15 feet from the dwelling, some small vessels containing altogether about two or three gallons of corn whisky. The witness Lockhart testified that he was acquainted with ordinary blockade liquor, and that in his opinion the whisky found was blockade. All the vessels and contents were seized and carried away by the witnesses.

Section 3296 of the Revised Statutes, together with certain other sections, of what are known as the Internal Revenue Laws, are repealed by the National Prohibition Act, commonly known as the Volstead Act (41 Stat. 305).

See United States v. Boze Yuginovich, 256 U.S. . . ., 41 Sup.Ct. 551, 65 L.Ed. . . ., decided by the Supreme Court of the United States, October term, 1920; also Reed v. Thurmond, which was decided by this court November 24, 1920, and reported in 269 Federal Reporter, 252.

These decisions however, do not seem to affect this case for the reason that the acts upon which the alleged offense of the defendant is based were committed on December 25, 1919. The National Prohibition Act did not become the law until January, 1920, and the reservation in the said act, as we understand the decision of the Supreme Court in the case above cited, preserves the right to prosecute offenses against the existing laws where the acts were committed before the National Prohibition Law became effective.

With this question eliminated, there remains for our consideration, as we view it, only two propositions involved in the action of the trial court and the bill of exceptions and assignments of errors based thereon by the defendant; one being the objection by the defendant to the admission of the testimony of the two witnesses, Thomas and Lockhart, offered by the government, and the other the motion of the defendant for a directed verdict of acquittal.

The first proposition is based on the fact that the two witnesses went upon the defendant's premises and into his dwelling house without warrant of arrest or warrant of search, and that the evidence offered was obtained under these circumstances, and is therefore inadmissible against him in his trial for an alleged criminal offense. It may be said that the testimony shows that the witnesses did not go upon the premises or enter the dwelling house of the defendant at his invitation or by his permission. So far as shown by the testimony the witnesses were in the house before the defendant was aware of their presence. They came upon an adverse errand under the belief, upon information they had, that the defendant was guilty of a crime, and they were seeking evidence in support of a criminal charge.

It is argued that the defendant made no objection to the entry of the witnesses, either upon his premises or into his dwelling and therefore that it was a peaceful entry, and that...