Morris v. United States

• Decision Date: 04 May 1928
• Docket Number: No. 7985.,7985.
• Parties: MORRIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

26 F.2d 444 (1928)

MORRIS et al. v. UNITED STATES.

No. 7985.

Circuit Court of Appeals, Eighth Circuit.

May 4, 1928.

Wash E. Hudson, of Tulsa, Okl., for plaintiffs in error.

John M. Goldesberry, U. S. Atty., and W. B. Blair, Asst. U. S. Atty., both of Tulsa, Okl., and Harry Seaton, Asst. U. S. Atty., of Pryor, Okl.

Before LEWIS, Circuit Judge, and SCOTT and DAVIS, District Judges.

SCOTT, District Judge.

A. B. Morris, Paul Morris, and Mont Morris, on January 26, 1927, were indicted by a grand jury for the Northern district of Oklahoma in two counts. The first count in substance charged the felonious possession of certain intoxicating liquor, and described "fourteen pints red corn whisky," and other liquors at 1318 North Union street, Lombard addition to the city of Tulsa, Osage county, state of Oklahoma; the place where "said liquor was had, kept, and possessed being in and upon Indian country," et cetera. The second count charged a violation of the National Prohibition Act (27 USCA), in that the defendants, at the same time and place mentioned in the first count, did unlawfully "have and possess one hundred empty pint bottles, two bottles of coloring and flavoring, one box of charcoal," and other articles customarily used in the manufacture of intoxicating liquor, and alleged to be "designed for use and intended for use in the manufacture of intoxicating liquor." The indictment was dismissed as to the defendant Mont Morris before the case was reached for trial. There was trial and conviction of the two other defendants, and they bring the case to this court upon writ of error. Since the argument and submission of the case in this court, suggestion of the death of Paul Morris, duly supported, has been filed. We need, therefore, consider this appeal only as it affects A. B. Morris.

On July 19, 1927, two days before trial of the case was begun, the defendants jointly filed motion for permission to inspect the minutes of the grand jury; the motion reciting that the defendants verily believed that there was not any material or competent evidence submitted to said pretended grand jury. On the following day, July 20th, said defendants filed a motion to quash the indictment upon the ground that the evidence upon which said indictment was returned was unlawfully obtained by a search and seizure which was unauthorized in law, and further charging that the said grand jury had not been summoned or impaneled by or under the direction of any competent court with authority or jurisdiction in the premises. That said court had not been lawfully organized, and further reciting that Hon. F. E. Kennamer was appointed by the President of the United States of America as a United States District Judge for the Eastern District of Oklahoma, and that thereafter by Act of Congress of February 16, 1925, the Northern District of Oklahoma was created, and Congress in said act assigned Hon. F. E. Kennamer to act as judge of the newly created district; but as so assigned Hon. F. E. Kennamer is and was without authority to appoint a clerk for such district, or a jury commissioner, or any other officer provided for by statute, and therefore there was no panel of jurors from which to draw a grand jury, as provided by law. These motions were duly submitted and overruled, and such ruling is assigned as error. Without prolonging discussion of this phase of the case, we will say that it is our opinion that these motions were without merit and were properly overruled.

On July 20, 1927, defendants also filed a demurrer to the indictment and each count thereof. The demurrer was submitted and overruled, and error is assigned on such ruling. We think the ruling was correct.

On July 21, 1927, immediately before the calling of the case for trial, defendants filed a motion to quash the petit panel upon the same ground directed against the impaneled grand jurors. This motion was overruled, and correctly so.

And thereupon defendants filed a motion to suppress evidence. The motion to suppress evidence is based upon the alleged invalidity of the search warrant under which the search was made and the liquor found in the house in question. The application for the warrant is based upon an affidavit by Robert S. Hubbard, federal prohibition agent. In the affidavit affiant says "that the laws of the United States, namely, the National Prohibition Act, are being violated by reason of the facts, to wit: That a sworn affidavit has been presented to Wilson R. Roach, United States commissioner, stating that whisky and other intoxicating liquors are now being kept on the premises of A. B. Morris, located at 1318 North Union street, Lombard addition to Tulsa, in Osage county. Affiant believes and has good reason to believe that whisky is now kept and stored in and around the premises of A. B. Morris, being the premises of A. B. Morris, and being situate in the Lombard addition to Tulsa, in Osage county and state of Oklahoma.

The warrant recites: "Whereas, complaint on oath and in writing, supported by affidavit, * * * by R. S. Hubbard, alleging that the laws of the United States * * * are being violated by unlawfully storing and keeping whisky and other intoxicating liquors in and around the premises of A. B. Morris at his residence located at 1318 North Union street, Lombard addition to Tulsa, in Osage county; that an affidavit has been presented to Wilson R. Roach, a United States commissioner, et cetera, that whisky and other intoxicating liquors are now kept on said premises. Affiant believes and has good reason to believe that whisky and other intoxicating liquors are now kept on said premises. * * *"

It is quite evident that the affidavit upon which the warrant issued was wholly insufficient and that the warrant was void. However, the case having been dismissed as to Mont Morris, and abated as to Paul Morris by reason of his death, and inasmuch as A. B. Morris does not appear to have been in possession of the premises at the time, he residing several miles distant, and inasmuch as he made no claim to the premises or their possession, or to any property seized, we think that he is not entitled to raise the question of the validity of the search warrant. Graham v. United States (C. C. A.) 15 F.(2d) 740; Cantrell v. United States (C. C. A.) 15 F.(2d) 953; United States v. Wexler (D. C.) 4 F.(2d) 391. Indeed, counsel for appellant does not seriously contend that the motion was good as to A. B. Morris. In the brief he says: "It might be argued that A. B. Morris, although he is silent in the record, not living on the premises searched, as the testimony upon the part of the government's witnesses undoubtedly discloses, cannot raise the validity of the search. That, we concede, is the law relative to searches and seizures. We will deal with A. B. Morris' connection with the liquor hereinafter. But what about Paul Morris."

Counsel immediately before the case was called for trial on July 21, 1927, filed an application to disqualify Hon. F. E. Kennamer, the presiding judge, upon the ground of personal prejudice against the respective defendants and in favor of the United States. The application was supported by affidavits of each of the three defendants named in the indictment. The application to disqualify is based upon Judicial Code, § 21, now title 28, § 25, United States Code Annotated, and is supported by the affidavit of A. B. Morris. The application and affidavits were accompanied by a certificate of counsel of record that such application and affidavits are made in good faith. We here set out at large the affidavit of A. B. Morris, filed in support of the application:

"A. B. Morris, being first duly sworn, upon his oath deposes and says: That he is one of the defendants in the case of United States of America against A. B. Morris, Paul Morris, and Mont Morris, numbered 1589, now pending in the United States District Court for the Northern District of Oklahoma. That he verily believes and charges that his honor, Judge F. E. Kennamer, has a personal bias and prejudice against him and his codefendants, Paul Morris and Mont Morris, and each of them, and in favor of the government, by reason of which said judge is unable to impartially exercise its functions as judge in this cause. That by reason of said personal bias and prejudice neither of these defendants can have a fair and impartial trial before him. The grounds for the defendant's beliefs are as follows:

"The defendants state upon information and belief that Hon. F. E. Kennamer, in the city of Tulsa, Oklahoma, after the organization of the United States District Court for the Northern District of Oklahoma, created and organized pursuant to the act of Congress of February 16, 1925, made addresses before certain civic clubs and churches of that city on the subject of law enforcement; that in all these addresses he told his audiences in substance, and through them the general public, that he intended to bear down with heavy hands on all offenders against federal criminal laws; and that during the course of his address before one of said clubs, namely, the Kiwanis club, on or about the 13th day of April, 1925, he stated that, the higher the law violator's collar and the whiter his shirt, the longer his sentence would be in his court, and that, the longer his list of witnesses, the heavier his sentence would be.

"That he has been informed that Hon. F. E. Kennamer, judge of said court, has heretofore expressed a willingness to assist the prohibition officers in apprehending this affiant in the commission of a violation of the liquor law, by permitting prisoners of the United States government to be used as under cover men for the purpose of obtaining evidence against this affiant, and this affiant has been further informed that the said Hon. F. E. Kennamer, judge of said court, did, at least upon one occasion, permit a prisoner of the United States government to be placed in the custody of prohibition...