Gay v. United States

• Decision Date: 26 October 1925
• Docket Number: No. 4609.,4609.
• Citation: 8 F.2d 219
• Parties: GAY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

8 F.2d 219 (1925)

GAY et al. v. UNITED STATES.

No. 4609.

Circuit Court of Appeals, Ninth Circuit.

October 26, 1925.

John F. Dore and F. C. Reagan, both of Seattle, Wash., for plaintiffs in error.

Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash.

Before GILBERT, RUDKIN, and McCAMANT, Circuit Judges.

GILBERT, Circuit Judge.

The plaintiffs in error, together with Lillian Gay, were charged under an indictment in count I with the unlawful possession of 372 bottles of whisky. Count II charged that Edward Gay had theretofore been convicted of the offense of unlawful possession of intoxicating liquor. Count III charged that all the defendants unlawfully transported in a certain described automobile 180 bottles of whisky. Count IV charged that all the defendants in another described automobile unlawfully transported 182 bottles of whisky. The defendant Lillian Gay was found not guilty on all of the counts. The other defendants were found guilty on count I; Edward Gay was found guilty on count II; Bennett was found guilty on count III; and Edward Gay was found guilty on count IV.

The facts are briefly these: O'Harra, a prohibition agent, observed two automobiles driving together. In each car he saw intoxicating liquor. He got into his automobile and followed them. He saw the foremost of the automobiles drive into a garage. He pursued the other automobile, which was driven by the defendant Bennett, but lost sight of it. He returned to the garage into which the first automobile had gone, and he found that Bennett's car was in the garage. He obtained a search warrant and on the premises he apprehended the defendant Bennett, who was attempting to escape. He heard a noise in the brush of one running in a different direction. He seized 372 bottles of liquor, which were in the two cars in the garage.

The denial of Edward Gay's motion for an instructed verdict in his favor is assigned as error, and it is urged that there was no evidence to go to the jury to sustain any charge against him. There was undisputed evidence that Edward Gay was the owner of the first automobile which was driven into the garage. He was not identified, nor was any person identified as the driver of that car. It was shown by the defendant's own documentary evidence that he was the lessee of the premises on which the garage stood. A prohibition agent testified that, on entering the premises with the search warrant, he asked Lillian Gay why they were in the bootlegging business, and said, "It seems to me you would not do that," and that she said, "Mr. O'Harra, I was raised in a saloon; my father ran a saloon over in London; it is absolutely nothing to us; we don't think anything about it at all." To his question whether they were operating with the Olmstead gang, she said, "No; we are operating independent of the Olmstead gang." No objection was taken to the admission of this testimony, but the court instructed the jury that it was to be considered only in connection with the charge against Lillian Gay. We cannot agree that it constituted all the evidence to identify Edward Gay with the offense charged, or that proof of the corpus delicti rests wholly upon Mrs. Gay's statements. That an offense was committed by some one in the use of Edward Gay's automobile is undisputed. It is also undisputed that at a time subsequent to the seizure of his automobile he approached O'Harra and made inquiry as to his right to take his car out on bond, and his right to surrender the same to avoid forfeiting the bond. He made no claim that the car was not legally subject to seizure. He also...