McGuire v. United States

• Citation: 6 F.2d 576
• Decision Date: 13 April 1925
• Docket Number: No. 263.,263.
• Parties: McGUIRE v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

6 F.2d 576 (1925)

McGUIRE v. UNITED STATES.

No. 263.

Circuit Court of Appeals, Second Circuit.

April 13, 1925.

Before HOUGH, MANTON, and HAND, Circuit Judges.

On the hearing in this court certain questions of law arose concerning which this court desires the instruction of the Supreme Court in order properly to decide the cause.

Statement of Facts.

The facts material to the questions certified and revealed by the bill of exceptions and exhibits are as follows:

An information was duly filed against McGuire, charging (first count) that he, within the jurisdiction of the court, did possess a large quantity of intoxicating liquor otherwise than as authorized in the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), that is to say, for intoxicating-beverage purposes; and (second count) that he did, at 718 Albany street, Schenectady, N. Y., on a day certain and within the jurisdiction of the court, unlawfully and knowingly sell to a person named certain intoxicating liquors, he, the said McGuire, then and there well knowing the same to be intoxicating liquors.

Before the filing of said information, and upon due showing of probable cause, a United States commissioner in and for said Northern district of New York duly issued a search warrant, pursuant to title 2, section 25, of the National Prohibition Act of October 28, 1919 (Comp. St. Ann. Supp. 1923, § 10138½m), in and by which warrant certain named United States internal revenue agents were commanded to enter certain premises, to wit, 718 Albany street, Schenectady, N. Y., in the daytime only, and then and there diligently search for the liquor alleged by the affidavits submitted to be upon said premises and in the possession of said McGuire.

The persons named in said search warrant duly entered upon said premises in the daytime, and then and there duly discovered and seized a large quantity, to wit, several gallons, of intoxicating liquor, which liquor they then and there destroyed, without any order or direction of any court in respect of said destruction, except one quart of whisky and one quart of alcohol, which they retained for purposes of evidence.

The persons named in said search warrant, who had thus seized and for the most part destroyed the intoxicating liquor discovered, made return to the United States commissioner who had issued such search warrant, setting forth how much liquor they had destroyed, and declaring their retention of (in the language of the return) ...