Milyonico v. United States, 4474.

• Decision Date: 29 December 1931
• Docket Number: No. 4474.,4474.
• Citation: 53 F.2d 937
• Parties: MILYONICO et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

53 F.2d 937 (1931)

MILYONICO et al. v. UNITED STATES.

No. 4474.

Circuit Court of Appeals, Seventh Circuit.

October 24, 1931.

Rehearing Denied December 29, 1931.

Harold J. Bandy, of Granite, Ill., for appellants.

Walter M. Provine, U. S. Atty., of Springfield, Ill., Frank K. Lemon, U. S. Atty., of Clinton, Ill., and Marks Alexander, Asst. U. S. Atty., of Springfield, Ill.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

Appellants were charged by information (1) with unlawfully possessing intoxicating liquor, (2) with unlawfully possessing property designed and used for the manufacture of intoxicating liquor, and (3) with unlawfully maintaining a common nuisance, in violation, respectively, of title 27, U. S. C., §§ 39, 33 (27 USCA §§ 39, 33). The transactions out of which the charges arose are alleged to have occurred on December 6, 1928, at Collinsville, Ill. To the information each appellant pleaded not guilty, and a joint trial by a jury resulted in a finding of guilty as to each. They were accordingly adjudged guilty by the court. Milyonico was fined $1,000 and sentenced to serve one year in the Springfield jail and Abbaco was fined $500, and sentenced to serve six months in the same jail. From the judgment, both appellants appeal.

SPARKS, Circuit Judge (after stating the facts as above).

The errors relied upon separately by appellants are: (1) The overruling of appellants' motion, made before the trial, to suppress all evidence obtained in the search of the dwelling house of appellant Milyonico on December 6, 1928; (2) the overruling of appellants' motion for a directed verdict of not guilty; and (3) the overruling of appellants' motion for a new trial.

The only question presented for our determination is whether or not there was an unlawful search and seizure, inasmuch as each error assigned depends upon the answer to that question.

The evidence introduced in this cause was sufficient to warrant a finding of the following facts: Federal Agents Durbin, Marshall, and Simonson, on December 6, 1928, while riding past Milyonico's residence noticed the odor of fermenting mash. They stopped their car, and without a search warrant entered the premises by the front gate. Simonson went to the front door, Marshall to the side door, and Durbin went around the side of the house and to the garage on the rear of the lot, where he saw vats containing fermenting mash. Durbin then walked back to the rear, and through an open window saw Milyonico inside the rear room of his residence standing near the open window. Durbin displayed his badge and told Milyonico that he, Durbin, was a federal officer, to which Milyonico replied that he knew it, and said, "Come in and I will show you one of the nicest stills you ever saw." Milyonico asked for no search warrant, but opened the double doors at the rear, which were like garage doors and sufficiently wide to admit a truck; and Durbin, in response to the invitation, entered. He saw in that room a vat and 14 five-gallon cans of alcohol, an electric pump and heater, and a still which was then in operation. About that time, Simonson and Marshall, who had previously entered the house through the front and side doors, respectively, came through the house with Abbaco, whom they had apprehended, to the rear room where Durbin and Milyonico were. The...