Owens v. United States, 6525.

• Decision Date: 04 February 1953
• Docket Number: No. 6525.,6525.
• Citation: 201 F.2d 749
• Parties: OWENS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

201 F.2d 749 (1953)

OWENS v. UNITED STATES.

No. 6525.

United States Court of Appeals Fourth Circuit.

Argued January 5, 1953.

Decided February 4, 1953.

John F. Williams, Aiken, S. C. (Williams & Busbee, Aiken, S. C., on brief), for appellant.

Claud N. Sapp, Jr., Asst. U. S. Atty., Columbia, S. C. (Ben Scott Whaley, U. S. Atty., Charleston, S. C., on brief), for appellee.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and WEBB, District Judge.

DOBIE, Circuit Judge.

Leon Owens was convicted in two indictments, consolidated for trial. The first indictment charged Leon Owens, Evelyn Owens (his wife) and Clinton Troy Weeks with a violation of the Internal Revenue Laws relating to liquor, namely Sections 2913 and 3253 of the Internal Revenue Code, 26 U.S.C. §§ 2913, 3253. The second indictment charged Leon Owens and Evelyn Owens with assault upon government officers with a deadly weapon in violation of Section 111, Title 18 United States Code. Weeks pleaded guilty under the first indictment. The two indictments against Leon Owens and Evelyn Owens were consolidated for trial, resulting in a directed verdict of "not guilty" in the liquor case against Evelyn Owens and a verdict of "not guilty" as to Evelyn Owens in the assault case. Leon Owens was found guilty by the jury under both indictments. He was thereupon sentenced by the court on each count to the payment of a fine of $200 and to imprisonment for 15 months, the sentences of imprisonment to run concurrently. Leon Owens has appealed to us.

On the night of August 13, 1952, Gwynne, an officer of the Alcohol & Tobacco Tax Division, with other officers and a private citizen, drove an automobile to the front of the residence of Leon Owens. When Gwynne blew the horn of the automobile, lights were turned on in the house and on the porch. Weeks came out of the house to the automobile, and Gwynne arranged for the purchase of liquor from Weeks. Weeks directed Gwynne to drive him several hundred yards from the house, where he went into the woods and came back with one-half gallon of non-tax paid whiskey which he was selling. Gwynne placed Weeks under arrest and Weeks showed the officers ten gallons more of the whiskey in the woods.

While this whiskey was being destroyed, Weeks escaped from the officers and ran back towards the house of Leon Owens with the officers in pursuit. As officer Gwynne reached the house, he observed a light in one of the rooms of the house and while in pursuit of Weeks, as he reached the open window of the room in which the light was on, he saw Leon Owens loading a pistol.

Gwynne (according to his testimony which was confirmed) called to Owens that he (Gwynne) was a federal officer and told Owens not to shoot, and, as Owens was apparently preparing to shoot, Gwynne again advised Owens that he (Gwynne) was a federal officer and ordered Owens to drop the pistol. Owens vigorously denied any statement by Gwynne that he was a federal officer.

Owens shot the pistol through the window several times, while Gwynne retreated to the road in front of the house. Owens also fired a shotgun through the open window, and Evelyn Owens fired a rifle into the yard from the rear of the house. When other officers arrived upon the scene, they and Gwynne returned to the yard of the house and Leon Owens and Evelyn Owens were placed under arrest.

We find no merit in appellant's contention that the entry of the officers upon the premises of appellant, without a search warrant or warrant of arrest, was illegal. At the time the automobile first stopped in front of appellant's residence, when the horn was blown and Weeks emerged from the house, there was no entry by the officers on these premises. Later, when such entry was made, the officers were in pursuit of Weeks, who had committed a felony in their...