Murby v. United States, 1648.

• Decision Date: 11 December 1923
• Docket Number: 1648.
• Citation: 293 F. 849
• Parties: MURBY v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

293 F. 849

MURBY v. UNITED STATES.

No. 1648.

United States Court of Appeals, First Circuit.

December 11, 1923

Daniel T. Hagan, of Providence, R.I. (William W. Blodgett, Daniel E Geary, and Charles A. Kiernan, all of Providence, R.I., on the brief), for plaintiff in error.

Harold A. Andrews, Sp. Asst. U.S. Atty., of Providence, R.I. (Norman S. Case, U.S. Atty., of Providence, R.I., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON Circuit Judge.

Murby was convicted of unlawful possession of intoxicating liquor fit for beverage purposes, in violation of the National Prohibition Act (41 Stat. 305). The errors assigned grew out of search warrant proceedings. The warrant and the return thereon are as follows:

'United States of America, District of Rhode Island.

'Search and Seizure Warrant.

'To the United States Marshal for the District of Rhode Island, or Any of His Deputies, or Any Federal Prohibition Agent, or Any Civil Officer of the United States, Duly Authorized to Enforce Any Law Thereof:

'Whereas, complaint in writing, supported by affidavit, has this day been made before me, Archibald C. Matteson, a United States commissioner for the said district, by Charles R. Young, federal prohibition agent, alleging that the laws of the United States, namely, the National Prohibition Act, having been and are being violated by the unlawful possession of certain intoxicating liquor containing one-half of one per cent. or more of alcohol by volume and fit for use for beverage purposes the containers thereof, and certain property designed and intended for the unlawful manufacture of intoxicating liquor at the saloon and cellar numbered 420 Mineral Spring ave., being the premises of . . ., alias John Doe, and being situate in the city of Pawtucket and within the district above named by reason of the facts stated to said affidavit, to wit:

'Charles R. Young, federal prohibition agent, made a personal visit to the saloon at 420 Mineral Spring ave., Pawtucket, R.I., when he purchased a drink of whisky containing more than one-half of 1 per cent. alcohol for beverage purposes on November 14, 1922.

'You are therefore hereby commanded, in the name of the President of the United States, forthwith to enter said saloon and cellar at 420 Mineral Spring ave. Pawtucket, R.I., numbered . . . street, in the . . . of . . . in the day (or night) time, with the necessary and proper assistance, and then and there diligently to search for said liquor, containers, and property, and if the same or any part thereof shall be found on said premises, then you are hereby authorized and commanded to seize and secure the same, and to make a return of your doings to the undersigned within ten days of the date hereof, and to do and report concerning the same as the law directs.

'Given under my hand and seal on this 11th day of December 1922.

'Archibald C. Matteson,

'United States Commissioner for the District of Rhode Island.

'Return of Search Warrant.

'By virtue of the within warrant I have this 16th day of December, A.D. 1922, searched the within-described premises, and have seized therein, and conveyed to a place of safety, to wit:

'The following described liquors, the containers thereof, and property designed for the manufacture of intoxicating liquor, to wit:

'1 1-qt. bottle beer (from tap).

'1 1/2-pt. bottle distilled spirits (3 oz.).

'1 nip glass.

'1 pitcher (crockery) 1 qt.

'I also seized . . . gallons of mash consisting of . . ., of which a sample was taken and the balance destroyed.

'I, Francis W. Pollard, one of the officers by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all property seized by me on this warrant.

'Francis W. Pollard.

'Subscribed and sworn to before me this 18th day of December, A.D. 1922.

'Archibald C. Matteson,

'United States Commissioner for the District of Rhode Island.'

This warrant was served on December 16, 1922. On March 15, 1923, a criminal information was filed against Murby, alleging that on said 16th day of December, 1922, he unlawfully possessed nineteen barrels of beer and one-half pint of distilled spirits, each containing more than one-half of 1 per cent. of alcohol by volume.

Murby seasonably moved to quash this search warrant and objected to the evidence obtained thereunder, on the following grounds:

'(1) That said search warrant is directed against the premises of no certain person.

'(2) That the search warrant is directed against no named person, alias John Doe.

'(3) That the search warrant does not attempt to describe any person whose premises are to be searched.

'(4) That the search warrant does not state that the owner of the premises to be searched is unknown.

'(5) That the search warrant is not directed to any particular officer to be served.

'(6) That the search warrant authorizes a search in the night time without containing an affidavit that the affiant is positive that the goods to be seized are on the premises.

'(7) That because an unreasonable length of time elapsed between the alleged violation constituting probable cause and the date of the search warrant, the alleged violation being on the 14th of November, 1922, and the search and seizure on the 16th day of December, 1922.

'(8) That said warrant is defective because it does not comply with the provision of section 12 of the Espionage Act, title 11, in that said return fails to show that a copy of the warrant together with a receipt for the property taken was given to the defendant.'

The motion was denied and the evidence admitted subject to Murby's exceptions.

The evidence indicated that Murby was the proprietor of a near beer saloon at 420 Mineral Spring avenue, Pawtucket, R.I.; that about noon on the 16th of December, 1922, Pollard and Young, federal prohibition agents, visited Murby's place armed with the warrant above set forth and announced, 'federal agents with a search warrant to search the premises. ' Thereupon they found in a pitcher a liquor containing over 28 per cent. of alcohol, and drew from a tap another liquor containing 4 1/2 per cent. of alcohol.

Defendant introduced no evidence. The court charged the jury that there was sufficient evidence, uncontradicted, to warrant a verdict of guilty. Murby was found guilty and sentenced to pay a fine of $200.

In Giles v. United States, 284 F. 208 (Oct. 28, 1922), this court had occasion to direct the attention of commissioners and prohibition officers to the clear and explicit provisions of the Espionage Act, tit. 11, 40 Stat. 228 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 10496 1/4a-10496 1/4v), pointing out that 'this careful codification of search warrant law leaves little or nothing for implication either as to the extent of the power or the method of its exercise;' also that the power granted to administrative officials under such warrants 'is a power capable of such oppressive and liberty-destroying use that it should be strictly guarded and exercised.'

It is the plain duty of all United States commissioners carefully to study the search warrant provisions of the Espionage Act, and to exercise scrupulous care that all proceedings before them and processes issued by them conform strictly to the provisions of this statute.

Failing such study and care, the already superabundant difficulties met in enforcing prohibition will be unnecessarily increased and the courts will be compelled to deal with close and difficult questions that, under proper procedure, would not arise at all, and many plainly guilty offenders will escape. We must enforce the Fourth and Fifth Amendments and statutes intended to protect rights thus guaranteed, as faithfully as we enforce the Eighteenth Amendment and the...