Rose v. United States, 8369.

• Decision Date: 14 November 1930
• Docket Number: No. 8369.,8369.
• Citation: 45 F.2d 459
• Parties: ROSE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

45 F.2d 459 (1930)

ROSE v. UNITED STATES.

No. 8369.

Circuit Court of Appeals, Eighth Circuit.

November 14, 1930.

Eugene D. O'Sullivan, of Omaha, Neb. (Charles J. Southard, of Omaha, Neb., on the brief), for appellant.

Edson Smith, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, U. S. Atty., of York, Neb., Ambrose C. Epperson and George A. Keyser, Asst. U. S. Attys., both of Omaha, Neb., and Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb., on the brief), for the United States.

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

BOOTH, Circuit Judge.

This is an appeal from a judgment of conviction under the National Prohibition Act. There were two informations filed. One (No. 5375) was against the appellant Rose and two other defendants. The other information (No. 5394) was against Rose alone. The two informations were consolidated for trial as to Rose. He was tried alone. Information 5375 contained six counts. The first three were for sales; the fourth and fifth were for possession; and the sixth was for a nuisance. Conviction was had upon all of the counts except the second. Information 5394 contained two counts. The first, for sale; the second, for possession. A verdict was directed on the first count, and conviction was had on the second.

A large number of grounds for reversal are presented by appellant, but they may be grouped under a few heads:

I. Consolidation of the two cases.

It is doubtful whether this ground is properly covered by any assignment of error, but we resolve the doubt in favor of appellant.

It is contended that because two other defendants were joined with Rose in the first information, that the consolidation was unauthorized and prejudicial.

Section 1024, Rev. St. (18 USCA § 557), reads as follows:

"When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated."

Section 32, title 2, of the National Prohibition Act (27 USCA § 49), reads as follows:

"In any affidavit, information, or indictment for the violation of this chapter, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed. It shall not be necessary in any affidavit, information, or indictment to give the name of the purchaser or to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful, but this provision shall not be construed to preclude the trial court from directing the furnishing the defendant a bill of particulars when it deems it proper to do so."

The offenses charged in the two informations in the case at bar were all violations of the National Prohibition Act. It would therefore have been perfectly proper for the district attorney to draw and file a new information against the appellant Rose alone, containing eight counts, the six of information 5375, and the two of information 5394. This new information could have been tried, and after trial, the two old informations dismissed as to appellant. Consolidation for trial accomplished the same result.

It is to be noted that the other defendants were not placed on trial, the orders of consolidation reading that the consolidation for trial was "as to the defendant William Rose."

The evils pointed out in McElroy v. U. S., 164 U. S. 76, 17 S. Ct. 31, 41 L. Ed. 355, could not result from such a consolidation.

We think the consolidation was authorized by the statutes cited, and that no error was committed.

II. Denial of motion to quash the search warrant in No. 5375 and to suppress the evidence obtained by said search warrant.

This motion was filed before the trial, but was not then passed upon. It was renewed at the close of all the evidence and was denied.

It is claimed by appellant that the postponement of ruling was the customary procedure in the District of Nebraska. As no objection to this procedure was taken by appellee at the trial, and none is taken to the matter being reviewed in this court, we consider the ruling on the motion without passing upon the method of procedure.

One of the points raised under this motion was that the premises involved were described in the affidavit for search warrant and in the search warrant as being in the city of Omaha; whereas, the proof showed that they were outside the city. The description was "the residence of William Rose, situated at 230 South 68th Avenue, Omaha, Douglas County, Nebraska."

Though there is some indefiniteness in the testimony, yet we think it was fairly shown that the residence was in fact just beyond the line of the city limits. Though the description was not technically accurate, yet it was sufficient to direct the officer to the exact place intended to be searched, and was also sufficient to prevent a mere roving expedition. No question of venue or jurisdiction was involved, and no one was misled. We think the description was sufficient. Steele v. U. S., 267 U. S. 498, 503, 45 S. Ct. 414, 69 L. Ed. 757; Rothlisberger v. U. S. (C. C. A.) 289 F. 72; Gerahty v. U. S. (C. C. A.) 29 F.(2d) 8; Fall v. U. S. (C. C. A.) 33 F. (2d) 71.

Another point raised under this motion is that neither the affidavit for search warrant nor the search warrant particularly describe the place to be searched and the persons or things to be seized, as required by the Fourth Amendment to the Constitution of the United States. We think there is no merit in this contention. We have already passed upon the sufficiency of the description of the place. As to the things to be seized, the affidavit states that intoxicating liquor is being sold upon the premises, and prays for a search warrant under the provisions of the National Prohibition Act. The search warrant itself orders search for intoxicating liquor, utensils, materials, etc. We think this was sufficient. There is no contention that anything was seized which was not mentioned. Steele v. U. S., supra, page 504 of 267 U. S., 45 S. Ct. 414, 69 L. Ed. 757; U. S. v. Kaplan (D. C.) 16 F.(2d) 802; U. S. v. Gaitan (D. C.) 4 F.(2d) 848.

The third point raised under the motion is that no oral testimony was taken by the commissioner before issuing the search warrant, but that simply a person appeared who made affidavit.

We know of no reason or authority for holding that where a person appears and makes a sufficient affidavit before the commissioner, oral testimony, either of the affiant or of a third party, should also be required. We find no such requirement, express or implied, in sections 613, 614, 615, 18 USCA (provisions of the Espionage Act, Act of June 15, 1917, ch. 30, title 11, 40 Stat. 228), or in the provisions of the National Prohibition Act.

We think there is no merit in the contention.

III. Denial of motion to quash the search warrant in No. 5394 and to suppress evidence obtained by said search warrant.

The three points raised in the motion to quash the search warrant in No. 5375 are again raised here. What we have said in reference thereto need not be repeated.

A fourth point is made, however, with reference to the obtaining of the search warrant in No. 5394 which requires consideration.

An examination of the record upon which the search warrant in No. 5394 was issued and of the search warrant itself discloses many inconsistencies and contradictions. The combination affidavit and complaint of Splawn, Federal Prohibition Agent; the finding of the United States Commissioner; the affidavit referred to in Splawn's complaint and attached thereto; and the search warrant are set out in the margin.¹

Among the inconsistencies and contradictions may be noted the following:

In the combination affidavit and complaint, the commissioner states that Splawn makes the complaint; in the search warrant, it is stated that Kazakes made it.

In the search warrant, the commissioner states that Kazakes has alleged that he believes the National Prohibition Act is being violated in certain premises; but in the affidavit of Kazakes, no such allegations are to be found.

In the search warrant, the commissioner states that the complaint of Kazakes was made before the United States Commissioner; the affidavit of Kazakes shows that it was made before a notary public, and not before the United States Commissioner.

In the face of these inconsistencies and contradictions, it is somewhat difficult to determine just what took place before the United States Commissioner as a basis for the issuance of the search warrant.

A close study of the record, however, has led us to the conclusion that the search warrant was issued on the combination complaint and affidavit of Splawn, sworn to before the United States Commissioner; and on the affidavit of Kazakes attached, sworn to before a notary public; but that Kazakes himself was not before the commissioner. This conclusion is tacitly conceded by counsel for the government. In their brief, they say:

"The search warrant was properly issued on the probable cause established by the complaint and affidavit of Newton Splawn sworn to before the Commissioner and the affidavit of James Kazakes attached thereto, sworn to before a notary public."

And again:

"There appears to be no reason in law why an affidavit sworn to before a notary public should not be used by a United States commissioner to establish probable cause for the issuance of a search warrant."

The question therefore arises: Was there a legal and sufficient foundation for the issuance of the search warrant?

The indispensable prerequisites to the issuance of a search warrant are to be found: (1) In the...