Holmes v. United States
| Decision Date | 05 July 1921 |
| Docket Number | 1876. |
| Parties | HOLMES v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Where the only evidence to sustain a charge of illicit distilling was the testimony of prohibition agents that they went to defendant's residence in his absence without a search warrant, and there found certain articles which they believed parts of a still and destroyed, consisting of empty kerosene cans, a keg, a piece of galvanized iron pipe, and a tub, held that such evidence was illegally obtained, and should have been stricken out on motion, and that in the absence of such motion a motion by defendant for a directed verdict should have been granted.
G. T Graham, of Lexington, S. C. (George Bell Timmerman, of Lexington, S. C., on the brief), for plaintiff in error.
J Waties Waring, Asst. U.S. Atty., of Charleston, S. C (Francis H. Weston, U.S. Atty., of Columbia, S. C., on the brief), for the United States.
Before KNAPP and WOODS, Circuit Judges, and ROSE, District Judge.
Plaintiff in error, herein called defendant, was convicted of illicit distilling. The government's witnesses were three prohibition agents. It is conceded that they went upon defendant's premises in his absence, without his knowledge or consent, and without a search warrant or other process. They testified to finding in the yard behind his house certain articles which they claimed were parts of a still, namely: A five-gallon kerosene can, which had the smell of still beer and appeared to have been on the fire; a 10 or 12 gallon keg containing some corn beer, which would have been 'ready' in a few days; a piece of galvanized iron pipe, which they said had been coiled to use for a worm; and a wooden tub, called by them a 'flake stand,' in which defendant's wife was washing clothes at the time. One of the men went into the house and brought out another can, similar to the one found in the yard. No whisky was discovered on the premises. They broke up the keg and tub, but carried away the cans and piece of pipe and threw them into the Congaree river. Learning that defendant was at a ginnery in the neighborhood, they went there and arrested him, without a warrant. On the way to the jail he admitted, as they swore, that he had used the articles found by them for distilling whisky and had made a 'run' only two or three days before.
No objection was made in the course of the trial to any of this testimony. The government of course produced none of the articles mentioned, for they had all been destroyed, but they were repeatedly referred to on cross-examination and by defendant's witnesses. The latter testified to the effect, among other things, that the articles in question, or at least some of them, had not been and could not have been used as parts of a still, and defendant stoutly denied that he had ever made any whisky or ever admitted having done so. There was no motion for...
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