Schnitzer v. United States

• Decision Date: 25 April 1935
• Docket Number: No. 10157.,10157.
• Citation: 77 F.2d 233
• Parties: SCHNITZER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

77 F.2d 233 (1935)

SCHNITZER v. UNITED STATES.

No. 10157.

Circuit Court of Appeals, Eighth Circuit.

April 25, 1935.

John R. Duty and W. N. Ivie, both of Rogers, Ark. (Claude Duty and Jeff Duty, both of Rogers, Ark., on the brief), for appellant.

John E. Harris, Asst. U. S. Atty., of Ft. Smith, Ark. (Clinton R. Barry, U. S. Atty., and Duke Frederick, Asst. U. S. Atty., both of Ft. Smith, Ark., on the brief), for appellee.

Before STONE, SANBORN, and FARIS, Circuit Judges.

STONE, Circuit Judge.

Appellant, with three others (his father and two brothers), was indicted on four counts charging, respectively, carrying on the business of a distiller without the required bond, carrying on such business with intent to defraud the government of the tax on spirits, making mash and wort fit for production of spirits on premises other than an authorized distillery, and concealment of whisky outside a bonded warehouse upon which no tax had been paid. During the trial, the fourth count was dismissed when it appeared from the evidence that the place of concealment was outside the division of the district wherein the indictment was returned. The verdict found the other three defendants not guilty as to all three of the remaining counts and appellant guilty as to all three counts. From judgment and sentence on this verdict, appellant brings this appeal.

The first contention here is that there was error in denying suppression of all testimony as to finding and seizure of 345 gallons of whisky from a house for the reason that such knowledge was procured without a search warrant in violation of the Fourth Amendment to the Constitution. After taking testimony thereon, the court denied the motion. This evidence was as follows: Appellant was an unmarried man living at the farm home of his father. About three-fourths of a mile away was a vacant farmhouse with a small stone outhouse some 50 feet away. Appellant owned the unoccupied property, but had rented the outhouse to a man whose name appellant could not remember. Both appellant and the tenant had keys to the outhouse. On the date involved, two investigators for the government went to the vacant property and smelled whisky or mash from the outhouse which was locked. They then went to the home of appellant where his father told them he knew nothing about the outhouse and had no key to it. Shortly, appellant came up. He told them he had a key and they asked him to go with them and unlock the door of the outhouse. This he did. The father of appellant and the investigator who testified stated appellant made no objection to going with the investigators. Appellant does not say he objected to going or to opening the door. He says merely that the investigators told him that he might as well open it or they would chop the lock off. He opened the door and the whisky was found in the outhouse. In this situation, the motion was properly denied. While courts should be alert to prevent encroachments upon constitutional guarantees, the right to such protection is a matter of proof with the burden upon the one alleging such protection. Here the parties were given full opportunity to develop the facts and situation to which the amendment was to be applied. The showing by appellant was that the outhouse was his property but was under lease to another person and was being used by such lessee; that the whisky was not his and that the residence was unoccupied. For the purposes of the amendment, the outhouse was at that time not his house. Williams v. United States, 66 F.(2d) 868, 869 (C. C. A. 10); Brown v. United States, 61 F.(2d) 363, 364 (C. C. A. 8); Connolly v. Medalie, 58 F. (2d) 629, 630 (C. C. A. 2); Klee v. United States, 53 F.(2d) 58, 61 (C. C. A. 9); Chepo v. United States, 46 F.(2d) 70, 71 (C. C. A. 3); Holt v. United States, 42 F.(2d) 103, 105 (C. C. A. 6); McShann v. United States, 38 F.(2d) 635, 636 (C. C. A. 10); Coon v. United States, 36 F.(2d) 164, 165 (C. C. A. 10); United States v. Messina, 36 F.(2d) 699, 700, 701 (C. C. A. 2); Shields v. United States, 58 App. D. C. 215, 26 F. (2d) 993, 996; McMillan v. United States, 26 F.(2d) 58, 60 (C. C. A. 8); Simmons v. United States, 18 F.(2d) 85, 86 (C. C. A. 8); Graham v. United States, 15 F.(2d) 740, 742 (C. C. A. 8); Rosenberg v. United States, 15 F.(2d) 179, 180 (C. C. A. 8); Tritico v. United States, 4 F.(2d) 664 (C. C. A. 5). Even had the stone outhouse been entirely under his control and not leased, he did not bring himself within the protection of the amendment because the residence was not occupied by him see Hester v. United States, 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898; Stark v. United States, 44 F.(2d) 946 (C. C. A. 8); Koth v. United States, 16 F. (2d) 59 (C. C. A. 9); Tritico v. United States, 4 F.(2d) 664 (C. C. A. 5).

In the brief, appellant (for the first time) attacks the sufficiency of the indictment as being defective as to the place where the crimes are charged to have been committed. This matter is not open on this record wherein the sufficiency of the indictment was not challenged. Babb v. United States, 27 F.(2d) 80, 81 (C. C. A. 8); Beach v. United States, 19 F.(2d) 739, 742 (C. C. A. 8), certiorari denied 276 U. S. 623, 48 S. Ct. 303, 72 L. Ed. 736.

Appellant challenges the sufficiency of the evidence to sustain conviction as to any of the three counts. A careful reading and consideration of all the evidence compels the conclusion that this contention is not well founded.

Appellant attacks the admission of the evidence as to what was found at the search of the outhouse. The first argument is the claimed illegality of the search. This has been disposed of above in connection with the motion to suppress. Another argument is that because the outhouse was in another county and division of the district from that wherein the indictment was returned "there is no connection between what was alleged to have been found or discovered in said alleged search and the issues involved in this case." It is true, that the fourth count of the indictment, which covered the possession of this whisky, was dismissed during the trial because it was ascertained that the boundary line of the Fort Smith division (wherein the indictment was returned) was a few feet short of the location of the outhouse. However, the evidence as to the existence of this whisky in the outhouse was (under the situation developed by the evidence) pertinent evidence as to the offenses charged in the three remaining counts.

Contentions are presented concerning the admission of several portions of the evidence covered by assignments of errors 7 to 12, inclusive. Assignments 11 and 12 are not in compliance with rule 11 of this court, and, therefore, not open for...