Johnson v. United States

• Decision Date: 06 January 1931
• Docket Number: No. 5712.,5712.
• Parties: JOHNSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

46 F.2d 7 (1931)

JOHNSON v. UNITED STATES.

No. 5712.

Circuit Court of Appeals, Sixth Circuit.

January 6, 1931.

Edward W. Massie, of Ironwood, Mich. (B. H. T. Burritt, of Hancock, Mich., on the brief), for appellant.

John Jones, of Ironwood, Mich. (Fred C. Wetmore, of Cadillac, Mich., on the brief), for the United States.

Before DENISON, MOORMAN, and HICKENLOOPER, Circuit Judges.

HICKENLOOPER, Circuit Judge.

Prosecution and conviction under the National Prohibition Act. Appellant contends that the court below erred in denying the application to suppress certain evidence, which it is claimed was secured upon a defective search warrant, and in overruling appellant's objections to such evidence when it was offered at the trial. The search warrant is said to have been fatally defective in the following particulars: (1) The affidavit upon which the warrant issued, and upon which must therefore be based the conclusion of probable cause, alleges only a purchase of "beer and pop," without the averment that such beer contained alcohol in excess of ½ of 1 per cent. by volume; (2) the affidavit and warrant described the building to be searched as located on "Silver Street," whereas it was in fact located upon "Mary Street," Bessemer, Mich.; (3) the articles for which search was to be made were insufficiently described only as "intoxicating liquors"; (4) the commissioner failed to direct whether the warrant was to be served "in the daytime" or "at any time of the day or night"; and (5) the copy of the warrant, delivered at the time the search was made, was not a true copy and was therefore an insufficient compliance with the requirements of section 12, title XI, of the act approved June 15, 1917 (18 USCA § 622), known as the Espionage Act, which is made applicable by sections 2 and 25 of title 2 of the National Prohibition Act (27 USCA §§ 11, 39) to searches made under the latter act. None of these contentions is tenable.

It is conceded by appellant that proof of a sale of "whisky," "wine," "gin," or other of the familiar intoxicants, none of which has ever been known to exist without more than the permissible maximum of alcoholic content, may properly be held to establish a sale forbidden under the National Prohibition Act. Courts will take judicial notice of the intoxicating quality of these beverages although described only by name. Cf. Albert v. U. S., 281 F. 511 (C. C. A. 6); U. S. v. Edwards, 296 F. 512 (D. C. Mich.); In re Hollywood Cabaret, 5 F.(2d) 651 (C. C. A. 2); Fry v. U. S., 9 F.(2d) 38 (C. C. A. 9); Weeke v. U. S., 14 F.(2d) 398 (C. C. A. 8); Allshouse v. U. S., 38 F.(2d) 234 (C. C. A. 3); U. S. v. Barbini, 26 F.(2d) 237 (D. C. Cal.); U. S. v. Ghiorsi, 31 F.(2d) 440 (D. C. Cal.). But it is said that this doctrine does not apply to "beer," citing Keen v. U. S., 11 F.(2d) 260 (C. C. A. 8) and Proulx v. U. S., 32 F.(2d) 760 (C. C. A. 1). The two last-cited cases do hold that the intoxicating nature of a beverage styled "home-brew beer" is not to be inferred from the name alone, notwithstanding the fact that beer is specifically named along with alcohol, brandy, whisky, rum, gin, ale, porter, and wine, in section 1, title 2, of the National Prohibition Act (27 USCA § 4), defining intoxicating liquor. Both cases, however, seem to indicate the opinion that the allegation of a sale of "lager beer," or even "beer without any adjectival modification," would be enough. Whether that may or may not be so as an academic question, we do not deem it necessary to decide. Having alleged the purchase of "beer" in the affidavit and complaint for search warrant, the affiant further avers that "because of the above facts" the National Prohibition Act is being violated in the premises named, and that "on his own knowledge" there then was, upon the premises named, "a certain quantity of intoxicating liquor fit for beverage purposes and containing more than ½ of 1% of alcohol by volume unlawfully acquired, possessed, stored and used in connection with the aforesaid violation of the National Prohibition Act." The affidavit and complaint must be read as an entirety and the statements contained therein must be given that reasonable construction which it is obvious was intended by the parties. Construing the allegation of the purchase of "beer" upon the premises, in connection with the allegations of a thereby resulting violation of the National Prohibition Act, and the averment of the possession upon the premises of intoxicating liquor fit for beverage purposes containing more than ½ of 1 per cent., etc., we must conclude that the affiant intended to convey the impression of a purchase of "beer" of a quality which fell within the statutory definition of intoxicating liquor, and that the allegations of the affidavit were sufficient justification for the commissioner's finding of probable cause.

The description and location of the building to be searched must be held sufficient upon similar principles. "It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended." Steele v. U. S., 267 U. S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757. Perhaps it would have been sufficient, in a place the size of Bessemer, to describe and locate the building simply as the "Sanitary Bottling Works," but to this description we have the further additions that the building was a two-story and basement, brick structure, located "one block west of Peoples State Bank," being the last building on the south side of said block and street, and the upstairs portion being occupied by one Pellegrino Cirocco. This we think was quite sufficient. When it became apparent in identifying the property that a mistake had been made in the name of the street, that portion of the description might be disregarded and reliance placed solely upon the balance. Thus described, the property was easily located, and the case is brought within the doctrine of Steele v. U. S., supra. Compare also People v. Flemming, 221 Mich. 609, 192 N. W. 625; People v. Urban, 228 Mich. 30, 199 N. W. 701.

Even less difficulty is encountered with the remaining contentions. "Said intoxicating liquors," for which search was directed, can only be understood as meaning the beer referred to in the affidavit. It is sufficiently descriptive. Cf. Steele v. U. S., supra, at page 504 of 267 U. S., 45 S. Ct. 414, 69 L. Ed. 757; U. S. v. Kaplan, 16 F.(2d) 802 (D. C. Mass.); U. S. v. Edwards, supra.

That the commissioner failed to fill...