Shore v. United States

• Decision Date: 01 February 1932
• Docket Number: No. 5393.,5393.
• Citation: 61 App. DC 18,56 F.2d 490
• Parties: SHORE v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 18, 56 F.2d 490 (1932)

SHORE v. UNITED STATES.

No. 5393.

Court of Appeals of the District of Columbia.

Argued November 3, 1931.

Decided February 1, 1932.

William E. Leahy, Lucien H. Vandoren, and James F. Reilly, all of Washington, D. C., for appellant.

Leo A. Rover, James R. Kirkland, and J. J. Sirica, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

Appellant was convicted under the second count of an indictment founded on section 593(b) of the Tariff Act (42 Stat. 982, 19 USCA § 497). The count charged appellant with unlawfully receiving, concealing, buying, and selling, and facilitating the transportation, concealment, and sale of merchandise (in this case foreign whiskys, gin, etc.), subject to duty by law, which said duty was unpaid and unaccounted for.

There are eight assignments of error relied upon, but, since numbers 4, 5, and 6 relate to the same subject-matter, we shall discuss them as one.

Number 1 is to the denial of a jury trial on a motion to suppress; No. 2 to the refusal to quash the search warrant; No. 3 to refusal of the court to require the government attorney to furnish a bill of particulars; Nos. 4, 5, and 6 to the admission of evidence given by witnesses Conner, Curry, and Tippett during the trial; No. 7 to permitting the government chemist to express an opinion as to the authenticity of certain foreign revenue stamps; and No. 8 to the refusal to direct a verdict for defendant. We have given careful consideration to the argument under these assignments and are satisfied that none of them ought to be sustained.

The point made as to the first assignment is that the search warrant was invalid because issued without probable cause and in violation of the Fourth and Fifth Amendments of the Constitution. Upon a previous appeal involving contempt proceedings, and on substantially the same evidence, we decided that the search warrant was properly issued. Shore v. U. S., 60 App. D. C. 137, 49 F.(2d) 519. At the subsequent trial, appellant insisted that the question whether there was probable cause for the issuance of the search warrant was a question af fact and should be submitted to the jury, but since the decision in Steele v. United States, 267 U. S. 505, 45 S. Ct. 417, 69 L. Ed. 761, we regard that question as no longer debatable. It was there decided that the competency of the evidence (in that case, as in this, whisky) was a question of fact and law for the court and not for the jury.

The second point, namely, that the search warrant was issued without probable cause in violation of the Fourth and Fifth amendments, we regard as res judicata by the decision of this court in the contempt proceeding, but, even if this were not so, we should adhere to the opinion expressed there.

The third point is to the action of the court in overruling the motion for a bill of particulars. The indictment, as we have already seen, charged appellant with unlawfully importing into the United States intoxicating liquors (on which the jury acquitted), and of unlawfully receiving and concealing intoxicating liquors subject to customs duties. The object of the motion for the bill of particulars was to require the government to state the port of importation, but, as the question of venue was not involved, the information which the motion sought was not essential to the defense, for it was the fact of importation and not the place that mattered, nor does it appear that the government knew the port of importation. Indeed, the contrary appears. There are thousands of miles of seaboard on the Atlantic and Pacific Coasts and likewise thousands of miles of border between the United States and Canada and Mexico, nearly all of which offers the opportunity for illegal importation of liquor. If the government had known the place of importation, the probability is the offense would have been sooner detected and the importation prevented. It was in the circumstances, therefore, under no obligation to show any particular place at which the customs law was first violated. It was enough that it was violated somewhere, and that appellant, with knowledge of this fact, possessed and concealed the smuggled goods.

The fourth, fifth, and sixth assignments relate to the admission of alleged erroneous and prejudicial evidence. One Conner, a driver of the express company, had testified that he delivered the trunks of whisky to appellant's place in Washington city. The trunks were consigned to F. H. Willoughby, in care of Frank Shore, 1223 New York avenue. This address was a garage owned and conducted by appellant. When the delivery was about to be made, Conner was informed by appellant's cashier, one May Money, that she did not know Willoughby, but would make inquiry, and that he heard her ask some one in the rear of the garage, and that a man's voice replied, "Yes; I know him. Bring them in." Whereupon Miss Money paid the express charges, received delivery of the trunks, and signed a receipt for them in the name of Willoughby, We think the evidence was proper to go to the jury, for, while it is true the voice from the rear of Shore's premises was not identified, the evidence showed that the place was his, and that he was there at the time and must have heard all that passed, and since the authorization to his cashier to accept the trunks involved their delivery on his premises and the payment of the express charges out of his money, the jury, we think, was entitled to consider the evidence as bearing upon the charge that the trunks were actually intended for delivery to him. Of course, such evidence is not conclusive, but, like other circumstantial evidence, it tended, if believed, to shed light upon the matter which the jury were...