Garhart v. United States, 3309

• Decision Date: 06 December 1946
• Docket Number: 3313.,3310,3312,No. 3309,3309
• Citation: 157 F.2d 777
• Parties: GARHART v. UNITED STATES (two cases). WARD v. SAME. ADAMS v. SAME.
• Court: U.S. Court of Appeals — Tenth Circuit

157 F.2d 777 (1946)

GARHART v. UNITED STATES (two cases). WARD v. SAME. ADAMS v. SAME.

Nos. 3309, 3310, 3312, 3313.

Circuit Court of Appeals, Tenth Circuit.

October 26, 1946.

Rehearing Denied December 6, 1946.

Harry Seaton, of Tulsa, Okl. (John L. Ward, Jr., of Tulsa, Okl., and C. Arthur Anderson, of St. Louis, Mo., on the brief), for appellants.

Kenneth G. Hughes, Asst. U. S. Atty., of Sapulpa, Okl. (Whit Y. Mauzy, U. S. Atty., of Tulsa, on the brief), for appellee.

Before HUXMAN and MURRAH, Circuit Judges, and BROADDUS, District Judge.

HUXMAN, Circuit Judge.

An indictment was returned against appellants Leon Garhart, Edith Mary Garhart, E. W. Ward, Clarence P. Adams, together with others, in the District Court of the United States for the Northern District of Oklahoma. Count 1 charged them with a conspiracy to violate Sections 3253, 2857, 2806, 2831, 2810, 2833, 2834, 2913, 2803 and 3321 of Title 26 U.S.C.A. Int.Rev. Code, and Section 223 of Title 27 U.S.C.A. In general, the object of the conspiracy was alleged to be an unlawful agreement among the defendants to engage in the business of distilling spirits without registering the stills; to carry on unlawfully such business without giving bond therefor for the purpose of defrauding the government of the tax on the spirits so distilled, to unlawfully remove distilled spirits on which the tax had not been paid to a place other than an authorized distillery; to unlawfully possess distilled spirits, the containers of which did not bear the strip stamps required by Section 2803; to carry on the business of wholesalers and retailers without paying the special taxes required therefor; to fail and refuse to keep the required records and refuse to post a wholesale liquor dealer's sign. It was charged that as a further purpose of the conspiracy they would import liquors from Illinois and Missouri into Washington County, Oklahoma, in violation of law.

While the indictment contains nine counts, various of these appellants are concerned only with the first five counts of the indictment. Count 2 charged Edith Mary Garhart, Leon Garhart and C. P. Adams, together with others, with carrying on the business of a distiller with intent to defraud the government of the tax due at the Swing Club near Bartlesville, Oklahoma. Count 3 charged the same three defendants, together with others, with making and fermenting mash fit for distillation of whiskey at a place other than a distillery duly authorized according to law. Count 4 charged the same defendants, together with others, with unlawfully possessing distilled spirits on which the tax had not been paid, and Count 5 charged Leon Garhart, Edith Mary Garhart and Clarence P. Adams, together with other defendants, with engaging in the occupation of wholesale liquor dealer in Washington County, Oklahoma, without having paid the special tax required for such a business. E. W. Ward was found guilty under Count 1. Leon Garhart was found guilty under Counts 1, 4 and 5. Edith Mary Garhart was found guilty under Counts 1 and 5, and Clarence P. Adams was found guilty under Counts 1, 2, 3 and 4 of the indictment.

Two assignments of error are urged for reversal. They will be considered in the following order: 1. The trial court should have sustained appellant's motion to quash the indictment and suppress evidence obtained under a search warrant. 2. The evidence was insufficient to sustain a verdict of guilty and a judgment of conviction, and that therefore the court erred in refusing to sustain the various timely motions made by the defendants to challenge the sufficiency thereof. While the second assignment of error challenges the sufficiency of the evidence to sustain the conviction on all five counts, appellants' brief concedes the sufficiency of the evidence to sustain a conviction under Count 5. Furthermore, all of the argument is directed to Counts 1 and 4. Apparently appellants have abandoned their attacks on Counts 2 and 3, and their brief will be so treated.

The first assignment of error urges the insufficiency of the indictment as a ground of reversal. This part of the assignment also is not stressed in the brief of appellants, nor was it alluded to in the oral argument before this court. The emphasis is entirely upon the alleged error of the trial court in refusing to suppress certain evidence obtained as a result of a search of the premises of some of the appellants. Apparently appellants have abandoned their claim that the indictment was legally insufficient, and no further reference will be made to that part of the assignment.

On July 29, 1945, government agents searched the Garhart home and obtained certain evidence, including a quantity of whiskey, which was introduced and received in evidence at the time of the trial. The officers had a search warrant under which the search was made. Appellants Leon Garhart and Edith Mary Garhart objected to the introduction of this evidence at the time of the trial, and moved the court to suppress it. The point made is that the supporting affidavit for the search warrant was legally insufficient to support a search warrant. There are two reasons why appellants' position in this regard is not well taken. In the first place, their objections to the proffered evidence came too late. The search was made on July 29, 1945. The trial commenced March 6, 1946. Notwithstanding that these appellants were present at the time of the search and saw what the officers took and were given a receipt identifying the articles which were taken, they made no move to recover the property or to challenge the government's right to use it as evidence in the trial which they knew was to follow, until at the trial. It is well settled that objections to the use of evidence which it is claimed was illegally obtained, must be seasonably made or the right to object thereto will be lost.¹ Gouled v. U. S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, upon which appellants rely, is not to the contrary. There the challenged evidence was secretly taken and the defendants objected to its introduction promptly and upon the first notice to them that the government was in possession thereof.

Neither is appellants' position that the supporting affidavit was legally insufficient to support a search warrant well taken. The affiant recites that he had good reason to believe that there was located on the premises (describing them) certain property used in committing a fraud upon the revenues in violation of the United States laws. The affidavit then recites numerous facts upon which this belief was predicated. Some of these are that the affiant saw Leon Garhart delivering nine 100-pound sacks of sugar to a black Ford pick-up, which he delivered to a point near Copan, Oklahoma; that he saw a black Chevrolet drive up to the premises and deliver cases believed to contain whiskey; and that he saw several 100-pound sacks of sugar in the truck at the time; that he smelled strong odors of fermenting mash emanating from the premises. Other facts and incidents which the affiant observed are recited in the affidavit.

Probable cause for the issuance of a search warrant exists where the facts and circumstances before the officer are such as to warrant a man of reasonable prudence and caution in believing that an offense has been committed.² Whether probable cause is present must be determined from the facts and circumstances in each particular case. Decided cases are helpful only in declaring the general rule, and are persuasive only insofar as they present similar facts. Without further elaboration, it is sufficient to say that the facts and circumstances recited in the affidavit are sufficient to establish probable cause and to support the issuance of the search warrant.

The remaining ground urged for a reversal is that the evidence was insufficient to sustain a verdict of guilty and judgment of conviction under Counts 1 and 4. Count 1 is the conspiracy count. All the appellants were found guilty under Count 1.

Following is a brief summary of the evidence upon which the government relied to sustain the conviction under the conspiracy count: In the fall of 1943 the defendant Clarence P. Adams rented and occupied the Swing Club, located seven miles south of Bartlesville, Oklahoma, under the fictitious name of J. W. Anderson, and secured the installation of certain public utilities at that location. Adams was definitely identified by witnesses as being present at the Swing Club from November 19, 1943, until March, 1944. Co-conspirator Ralph Davis was seen operating a "distill" under the water tower at the Swing Club. In the same room were 20 to 30 large wooden barrels. Leon Garhart, together with the witness Ware, made a trip to the Swing Club for the purpose of moving some whiskey about a week or two after Davis was seen operating the still. Again, about a week or two later, Leon Garhart and Ware moved eight or nine one-gallon jugs containing a white liquid, from the Swing Club premises to the home of Garhart where Ware hid some jugs "down there...