Occinto v. United States, 9204

• Decision Date: 17 November 1931
• Docket Number: 9205.,No. 9204,9204
• Citation: 54 F.2d 351
• Parties: OCCINTO v. UNITED STATES. LALUNA v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

54 F.2d 351 (1931)

OCCINTO v. UNITED STATES.

LALUNA v. SAME.

Nos. 9204, 9205.

Circuit Court of Appeals, Eighth Circuit.

November 17, 1931.

Paul J. Garrotto, of Omaha, Neb. (Wear, Moriarty, Garrotto & Boland, of Omaha, Neb., on the brief), for appellants.

Edson Smith, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb., and Lawrence I. Shaw, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and SANBORN, District Judge.

STONE, Circuit Judge.

These are appeals from convictions for violations of the Internal Revenue Act (Rev. St. §§ 3266, 3281, 3282 26 USCA §§ 291, 306, 307) relating to distilled spirits. The indictment was against both of the defendants and in five counts. The first count charged the making of mash, fit for production of alcoholic spirits, in a barn in Douglas county, Neb., not being a duly authorized distillery; the second count covered the fermentation of the mash; the third count covered the separation of alcoholic spirits from fermented mash in the same place, the defendants not being authorized distillers; the fourth count charged carrying on the business of distillers of alcoholic spirits in the same place with intent to escape the tax thereon, the fifth count charged the use of two stills "in the barn within the enclosure connected with the dwelling house." Under instructions of the court, the jury brought in a verdict upon the fifth count and found both defendants guilty under each of the other counts.

The first matter presented here is the claimed illegality of the search and seizure of the stills and other articles which were introduced in evidence. Before the trial, the defendants filed a motion to suppress this evidence on the ground that it had been procured by an unlawful search and seizure. This motion was supported by the affidavit of one of the defendants, Fred Laluna. This affidavit set forth that this barn was the home and residence of Laluna and that it had been entered without a search warrant at the time the articles were found and taken therefrom. Laluna makes no claim to the ownership of the stills and other illicit articles sought to be recovered. In this situation he is in no position to complain of their being used as evidence, and this alone is enough to dispose of this matter. It may be said, however, that the evidence clearly establishes that this barn was not used as his residence and his contention in that regard is obviously false and frivolous.

In connection with this point, appellant argues that there was no valid arrest and that the search preceded the arrest. The facts clearly shown by the evidence are that the agents, with very good reason to believe that liquor was being unlawfully distilled in this barn, approached it, and one of them, through a crack in the barn, saw the stills in operation. Thereafter, they arrested the defendants, who were in the barn tending the stills, and, thereafter, made a search therein and found the articles which were the subject of this motion to suppress. This was sufficient to authorize the arrest and the search as an incident thereto. Wida v. United States, 52 F.(2d) 424, opinion filed in this court September 15, 1931; Vecchio v. U. S., 53 F.(2d) 628, opinion filed in this court on October 27, 1931. As to appellant Occinto, who was merely a helper with no claim of living at the barn, there is no semblance of a basis to exclude this testimony.

Another matter urged here is the inconsistency of the verdict in that the jury found the defendants not guilty under count 5 and guilty on the other counts. This matter of inconsistency of verdicts in criminal cases has been considerably overworked and should be closely limited, as it usually has but...