Gracie v. United States, 2044.

• Citation: 15 F.2d 644
• Decision Date: 05 November 1926
• Docket Number: No. 2044.,2044.
• Parties: GRACIE v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

15 F.2d 644 (1926)

GRACIE v. UNITED STATES.

No. 2044.

Circuit Court of Appeals, First Circuit.

November 5, 1926.

Daniel T. Hagan, of Providence, R. I. (John J. Rosenfeld and Charles A. Kiernan, both of Providence, R. I., on the brief), for plaintiff in error.

Joseph E. Fitzpatrick, Asst. U. S. Atty., of Providence, R. I. (John S. Murdock, U. S. Atty., of Providence, R. I., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge.

Upon a criminal information by the United States attorney for the district of Rhode Island, the plaintiff in error, hereinafter called the defendant, was convicted, under the first count, of unlawful possession of property designed for the manufacture of intoxicating liquors intended for use in violating title 2 of the National Prohibition Act (Comp. St. § 10138½ et seq.), under a second count, of the unlawful manufacture of intoxicating liquors, and, under a third count, of the unlawful possession of intoxicating liquors. He was sentenced by the court to pay a fine of $100 under the first count, and to a term of imprisonment of three months under the second count. The court ruled that the third count of the information was merged in count 2, and an order of nolle prosequi was entered as to the third count.

The following facts are disclosed by the record:

James J. Walsh, a federal prohibition agent, testified that on the 16th day of February, 1926, he made a personal visit to the premises occupied by the defendant in the city of Cranston, in the state of Rhode Island, because he had been in the vicinity of these premises on several occasions, and had detected the odor of mash while in the neighborhood; that he was not positive where the odor was coming from, and in order to ascertain he went upon the premises of defendant, through an open gate, and passed from the gate a distance of about 150 feet to a building occupied by the defendant; that he peeked through the windows of this building; that, by putting his face to a crack in the door, he detected the odor of mash, and saw a vat in the building steaming and two or three barrels of empty beer bottles outside the building, and that he heard a noise in the building like that made by a bottle capping machine; that he thereupon applied for a search warrant to search the building, which was issued upon an affidavit filed by him stating the above facts, and upon this warrant 18½ full barrels of beer, 3 half barrels, and property designed for use in the manufacture of intoxicating liquor were seized.

At the time of the seizure the defendant told the prohibition agent that he was experimenting in the manufacture of beer and admitted that he was the occupant of the premises.

At the conclusion of the government's testimony a motion was made for a directed verdict by the defendant, on the ground that the search and seizure were unlawful, and there was no evidence before the court upon which the defendant could be found guilty. This motion was renewed by him at the conclusion of all the evidence, and he asked that the search warrant be quashed, and all the evidence procured by the seizure under it ruled out. These motions were overruled, and the defendant excepted.

It was not contended that the search or seizure was made in an unlawful manner, but that the affidavit upon which the search warrant was based was obtained by an unlawful entry upon the premises of the defendant.

The affidavit is as follows:

"I, James...