Klein v. United States, 1980.

Citation14 F.2d 35
Decision Date13 July 1926
Docket NumberNo. 1980.,1980.
PartiesKLEIN v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

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

Russell P. Jones, of Providence, R. I. (John S. Murdock, of Providence, R. I., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge.

The plaintiff in error, hereinafter called the defendant, was convicted on an indictment containing four counts. The first one charged the sale of intoxicating liquors, which was alleged to be a second offense; the second, the possession of property designed for the manufacture of intoxicating liquors; the third, their manufacture; and the fourth, the unlawful possession of intoxicating liquors, which was alleged to be a second offense.

The jury returned a verdict of guilty on all the counts, and the following sentence was imposed: Upon count 1, 60 days in jail and $200 fine; upon counts 2 and 3, a fine of $150 in each; and upon count 4, 60 days in jail, to run concurrently with the sentence of imprisonment imposed under count 1.

On March 17, 1925, Walter V. Dunn, a police officer of the city of Providence, R. I., went to the home of the defendant, accompanied by one Katzman, for the purpose of purchasing intoxicating liquor. He testified that the defendant told a young man who was in his home to go upstairs and get twelve bottles, which the young man did, and put them in an automobile in an alleyway near the back door of the house, and that he paid the defendant $30 for the same.

A search warrant was then obtained from the state court of Rhode Island, and a search made of the defendant's premises on the first floor of an apartment house by police officers. Nothing was found as a result of the search upon the first floor except some corks in a pan on the stove.

Upon the third floor the officers making the search found eight bottles of intoxicating liquors, some bottles of extracts of different kinds, a number of empty gin and whisky bottles, a five-gallon can of grape sugar, some bottle stoppers, an electric capping machine with motor attached, a labeling machine, a gallon can of burnt sugar, two cork pullers, two filling machines, a case of unrefillable bottles, empty, a galvanized measure, a lot of wood cases and cardboard cases.

Police Officer Steeves testified that, upon reaching the third floor, he met a boy coming out of a door in the apartment on this floor who told him, in the presence of the defendant, that he worked for the defendant, and was paid $25 per week, and that this statement was not denied by the defendant.

Another police officer, Hallstrom, also testified that he heard the conversation between officer Steeves and the boy in the defendant's presence.

The police officers notified a prohibition agent, who came to the house and removed the liquors and the other articles which the police officers had seized. One of the bottles of liquor purchased by Dunn was offered in evidence at the trial, and also four bottles of liquor seized by the police.

The defendant objected to the introduction of these exhibits and his objection was overruled, which is the first assignment of error. The ground of the defendant's objection was "that there was a partial seizure by the police and a substantial seizure by agents and employees of the United States government without federal process."

In The Ray of Block Island, 11 F.(2d) 522, this court held that a seizure made by police officers can be ratified by federal officers.

The record does not disclose that the federal officers took any part in the seizure, but simply removed the liquor and the other property which had been seized by the police officers. That the federal officers had no warrant authorizing them to make a seizure is immaterial, as the seizure had already been made by the police officer, and the liquor and articles seized were turned over to the federal officers, and the liquors seized were properly received in evidence. See, also, Park v. United States (C. C. A.) 294 F. 776.

Furthermore, defendant testified that he had no interest in the liquors or property seized upon the third floor, and that the apartment there was not occupied by him, and he made no claim to the liquors or other property seized or to the premises which were searched, and therefore could not raise an objection to the introduction of the liquor seized in evidence. See Lewis v. United States (C. C. A.) 6 F.(2d) 222, 223; Goldberg v. United States (C. C. A.) 297 F. 98; Driskill v. United States (C. C. A.) 281 F. 146.

The other errors assigned relate to the procedure in proving a prior conviction, to the instructions of the court, and to the refusal to direct a verdict of not guilty.

In order to prove the prior conviction alleged in the first and fourth counts of the indictment, the district attorney said he would "refer the court and jury to indictment 2194, in which the defendant was convicted on two counts, one of possession and one of sale, a previous offense." The clerk identified the defendant as the person who was the defendant in that indictment, which was uncontradicted, and stated that the former indictment was filed December 15, 1924; that the defendant pleaded guilty, and was fined $100.

Objection was made by the defendant to the introduction of the record of the previous conviction, solely for the reason that it did not disclose the count upon which the defendant was fined. The record was admitted and the defendant excepted. The same objection was urged to the instruction of the court to the jury as to what the record of the court disclosed in indictment...

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3 cases
  • Jeffers v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 7, 1950
    ...effect, Shields v. United States, 1928, 58 App.D.C. 215, 26 F.2d 993; Nunes v. United States, 1 Cir., 1928, 23 F.2d 905; Klein v. United States, 1 Cir., 1926, 14 F.2d 35; Matthews v. Correa, 2 Cir., 1943, 135 F.2d 534, 537; Chepo v. United States, 3 Cir., 1930, 46 F.2d 70; Kitt v. United St......
  • Greene v. United States
    • United States
    • U.S. Supreme Court
    • January 26, 1959
    ...111 F.2d 128, 129; Ross v. Hudspeth, 10 Cir., 108 F.2d 628, 629; Hawkins v. United States, 7 Cir., 14 F.2d 596, 597—598; Klein v. United States, 1 Cir., 14 F.2d 35, 37; Neely v. United States, 4 Cir., 2 F.2d 849, 3 At the time of these alleged offenses, and prior to the enactment of the Nar......
  • United States v. White, 11516.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 6, 1956
    ...770, the court said that this failure in itself "would seem to be sufficient ground for the denial of the motion", citing Klein v. United States, 1 Cir., 14 F.2d 35, and Nunes v. United States, 1 Cir., 23 F.2d 905. To the same effect is Scoggins v. United States, 92 U.S.App.D.C. 29, 202 F.2......

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