Lytle v. United States

• Decision Date: 08 April 1925
• Docket Number: No. 4274.,4274.
• Citation: 5 F.2d 622
• Parties: LYTLE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

5 F.2d 622 (1925)

LYTLE et al. v. UNITED STATES.

No. 4274.

Circuit Court of Appeals, Sixth Circuit.

April 8, 1925.

L. D. Greene, of Louisville, Ky. (Joseph M. Huffaker, Perry B. Miller, and T. J. Nohalty, all of Louisville, Ky., on the brief), for plaintiffs in error.

Lilburn Phelps, Asst. U. S. Atty., of Louisville, Ky. (W. S. Ball, U. S. Atty., and Claude Hudgins, Asst. U. S. Atty., both of Louisville, Ky., on the brief), for United States.

Before DENISON and DONAHUE, Circuit Judges, and WESTENHAVER, District Judge.

WESTENHAVER, District Judge.

Plaintiffs in error were convicted and sentenced on three counts. The first count charges a conspiracy unlawfully to possess and unlawfully to transport intoxicating liquor and specifies as overt acts: First, the unlawful possession of 105 gallons of red whisky; and, second, the unlawful transportation of 105 gallons of red whisky in a Packard touring car, license No. 186,299. The second count charges unlawful possession, and the third count unlawful transportation of the same whisky. A general verdict of guilty on all counts was returned, and a general sentence of one year and one day imprisonment imposed on each offender. No exception was taken to the charge. The errors assigned are to rulings on the admissibility of testimony and to the sufficiency of the evidence to sustain the verdict. Of the assigned errors, we shall discuss those only which were urged on oral argument or in counsel's brief. If error is not thus shown, certainly none appears in the record.

1. Lytle and Schleeter were discovered by federal prohibition agents transporting on a public highway, in a Packard touring car, license No. 186,299, 105 gallons of red whisky. Objection was made to the admission of evidence showing what the car contained, on the ground that an unreasonable search was made without a lawful search warrant. At the conclusion of the government's testimony, motion was also made to exclude all evidence as to what was discovered by the officers. Exception was properly taken and error preserved and assigned to the overruling of the objection and motion.

Upon authority of Carroll v. United States, 45 S. Ct. 280, 69 L. Ed. ____, decided March 2, 1925, by United States Supreme Court, we are of opinion that no error was committed. The evidence tending to show that the searching officers believed, and had reasonable grounds for so believing, that whisky was being unlawfully transported, is substantially the same in both cases, but less weighty in the Carroll Case than in the instant case; hence the search and seizure were not unreasonable. No useful purpose will be served by reviewing the evidence.

2. Error is also assigned to the admission of the following item of testimony given by W. H. Kinnaird, one of the searching officers: In response to a preliminary question, he answered: "I had information that Crawford — didn't say who was with him, but Crawford and one Packard automobile, No. 186,299, was going for whisky." The record discloses an objection interrupting the preceding answer, in which the witness had said, "I saw a fellow in town who told me," but no objection or exception was taken to the above-quoted answer, and no motion made to strike it out. For this reason, an assignment of error cannot be based thereon. Pennsylvania Co. v. Whitney (6 C. C. A.) 169 F. 572, 575, 95 C. C. A. 70; Robinson v. Van Hooser (6 C. C. A.) 196 F. 623, 624, 116 C. C. A. 294; Tucker v. United States (6 C. C. A.) 224 F. 833, 840, 140 C. C. A. 279; Moore v. United States, 150 U. S. 57, 14 S. Ct. 26, 37 L. Ed. 996.

As evidence of crime, this testimony was hearsay and inadmissible. A preliminary question of fact, however, had to be heard and determined by the trial judge as to the admissibility of the evidence obtained by the search and seizure. When the admissibility of testimony turns on a preliminary inquiry of fact, as whether a confession is voluntary, or a dying declaration is made under fear of immediate death and after all hope of recovery is gone, the trial judge must hear the evidence and determine that issue of fact before the evidence can be admitted. His finding is, according to some authorities, conclusive upon a reviewing court, if supported by any substantial evidence. According to other authorities, his determination is, in any event, entitled to the same weight as the like finding of a jury upon any issue of fact, and will not be disturbed in the absence of manifest error. Reynolds v. United States, 98 U. S. 145, 158, 159, 25 L. Ed. 244; Greenleaf on Ev. § 49; Jones on Ev. § 796; Wharton, Cr. Ev. (10th Ed.) § 275b; Wigmore on Ev. §§ 2549, 2550. If the evidence is admitted without this preliminary inquiry and finding, and later, during the course of the trial, its incompetency is made to appear, then, on motion, it may be stricken out. Wharton, Cr. Ev. (10th Ed.) § 447. Whether the jury shall be excluded while this evidence is being heard is a matter usually within the sound discretion of the trial judge, and certainly, in the absence of a request for the exclusion of the jury, it is not error to hear it in the presence of the jury. Wharton, Cr. Ev. (10th Ed.) § 275b, note 2.

In applying the doctrine of Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, the practice has become quite common to follow the course adopted in the instant case; i. e., hear all the evidence tending to show the lawfulness of the search and seizure and pass thereon by a ruling during the taking of the evidence. This appears to have been the course also followed in the Carroll Case.¹ The testimony of Kinnaird above quoted was proper to be heard and weighed by the trial judge as bearing on this preliminary question. For the same reason it was proper to hear some other evidence excepted to and assigned as error but not specially urged. For...