Palmquist v. United States, 11115.

• Decision Date: 22 May 1945
• Docket Number: No. 11115.,11115.
• Citation: Palmquist v. United States, 149 F.2d 352 (5th Cir. 1945)
• Parties: PALMQUIST v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

149 F.2d 352 (1945)

PALMQUIST v. UNITED STATES.

No. 11115.

Circuit Court of Appeals, Fifth Circuit.

April 14, 1945.

Rehearing Denied May 22, 1945.

R. A. Hendricks, of Miami, Fla., for appellant.

Herbert S. Phillips, U. S. Atty., of Tampa, Fla., and Ernest L. Duhaime, Asst. U. S. Atty., of Miami, Fla., for appellee.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

PER CURIAM.

Earl P. Carter, an officer of the Alcohol Tax Unit of the Internal Revenue Department of the United States, together with officers Morgan and Fox of the State Beverage Department of the State of Florida, having information of the existence of an illegal still in the vicinity and expecting the transportation of illicit moonshine liquor away from the still, on the night of July 29, 1943, met a truck coming from the direction of the still, which truck was crowded off the road by Officer Carter through the use of his car. The truck, in which defendant and one E. L. Brown were riding, belonged to the defendant Palmquist, and was being driven by one Bob Stiles, a colored man. The officers had no warrant for the arrest of either occupant, nor for the search of the truck, and there is much argument pro and con on the question of whether or not the officers were acting lawfully in stopping the truck with the evident purpose of searching the same for liquor. Two of the officers testified that when they crowded the truck off the road and stopped it, Federal Officer Carter called out: "Federal officers! Hold everything!" This testimony was corroborated by the negro driver of the truck who testified that he heard the officers say, "Federal men!" The defendant and Brown denied hearing Carter identify himself as a Federal officer and the defendant testified that he thought it was a hold-up. At any rate, the defendant came out of the truck with a double-barreled shotgun and drove the officers away, so that there was no arrest of the defendant, nor was any search or further effort made to search the truck after it was stopped. There was no request by the officers for permission to search the truck.

Palmquist was indicted and convicted under the first count of an indictment which, in substance, charged him with unlawfully, knowingly, willfully, and forcibly resisting, opposing, impeding, intimidating, and interfering with a Federal officer and employee engaged in the performance of his official duties, to wit, investigation into the manufacture and transportation of distilled spirits in violation of the Internal Revenue Laws of the United States and in making an effort to apprehend the person or persons violating such laws, by assaulting such officer with a shotgun and forcing him to abandon the apprehension of the person or persons engaged in the manufacture and transportation of said illicit liquor.

The defendant moved to suppress the evidence on the ground that it was unlawfully obtained because of the absence of a search warrant. There was also a demurrer to the indictment on the ground that it failed to name the persons alleged to be illegally engaged in the manufacture and transportation of liquor or the time and the place where the officers were attempting to perform their duties. There was a plea that the Court was without jurisdiction to try the case because of the illegal manner in which the evidence was obtained. There was a motion for a bill of particulars. There were objections to the introduction of evidence and to charges given and refused by the Court. In view of the Harmless Error Statutes, Sec. 556, 18 U.S.C.A., Sec. 1025, Rev.Stat., and...