Jacobs v. United States

• Decision Date: 04 January 1926
• Docket Number: No. 4692.,4692.
• Citation: 8 F.2d 981
• Parties: JACOBS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

8 F.2d 981 (1925)

JACOBS et al. v. UNITED STATES.

No. 4692.

Circuit Court of Appeals, Ninth Circuit.

November 16, 1925.

Rehearing Denied January 4, 1926.

William F. Herron, of San Francisco, Cal., for plaintiffs in error.

George J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and McCAMANT, Circuit Judges.

HUNT, Circuit Judge.

An information has been filed in the District Court, charging petitioners as defendants with violations of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), but as yet there has been no trial. While the case was awaiting trial, defendants petitioned to quash the search warrant issued in the criminal action, to suppress as evidence certain property seized by virtue of the search warrant, and to dismiss the information. The petition was denied, a bill of exceptions was signed and filed, writ of error was allowed, and a supersedeas was granted upon the filing of a bond for costs. Afterwards, the court, having signified its intention to proceed with the trial of the case, defendants applied to this court for a writ of prohibition, to have the District Court restrained from proceeding. The United States attorney moves to dismiss the writ of error, upon the ground that the order of the District Court was interlocutory, and not appealable.

In United States v. Marquette, 270 F. 214, we held that no appeal could be taken from an order denying a petition for the return of certain seized liquor, which was to be used in evidence in a pending criminal action. That view has been followed in United States v. Mattingly, 52 App. D. C. 188, 285 F. 922, where the Court of Appeals of the District of Columbia denied a petition for a writ of mandate to compel the lower court to settle a bill upon an order held not to be appealable, and by the District Court in United States v. Broude (D. C.) 299 F. 332.

Appellants argue that the rule in the Marquette Case is inconsistent with the recent decision in Steele v. United States, 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757, wherein the Supreme Court treated a decree denying a petition for an order vacating a search warrant, by authority of which Steele's premises were searched and liquor was found and seized, as appealable. In Steele's Case, as reported, the court did not consider whether or not the order was appealable; but it would seem that the proceeding was an independent one in equity by Steele for the return of seized liquor, and not a petition for the exclusion of the use of seized property as evidence upon a criminal trial. We so infer because, upon the same day that the decree referred to was affirmed, the court decided a direct writ of error under section 246 of the Judicial Code (Comp. St. § 1223) to review the conviction of Steele on an information charging unlawful possession of a quantity of liquor, and in the course of its opinion referred to the question of the right of defendant to have submitted to the jury the issue of fact whether there was probable cause to issue the search warrant, as having been decided in the appeal from the decree denying the order vacating the search warrant. The court regarded that question as res judicata, and rested affirmance of the conviction upon other grounds.

The earlier case of Perlman v. United States, 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950, is clearly to be distinguished. There the United States applied to take from the custody of the court certain property of Perlman, exhibits which had been impounded by the court in a civil cause wherein Perlman was not a party, and in which judgment had been entered some time previous; the purpose of the United States being to get possession of the exhibits to use before a grand jury in an effort to indict Perlman upon a criminal charge. Perlman applied for injunction against the use of the exhibits...