Sutherland v. United States

• Decision Date: 27 September 1937
• Docket Number: No. 4208.,4208.
• Citation: 92 F.2d 305
• Parties: SUTHERLAND v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

92 F.2d 305 (1937)

SUTHERLAND v. UNITED STATES.

No. 4208.

Circuit Court of Appeals, Fourth Circuit.

September 27, 1937.

S. H. Sutherland, of Clintwood, Va. (Geo. C. Sutherland, of Clintwood, Va., on the brief), for appellant.

Joseph H. Chitwood, U. S. Atty., of Roanoke, Va., and Howard C. Gilmer, Jr., Asst. U. S. Atty., of Pulaski, Va.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal in a criminal case wherein the defendant was convicted of concealing and removing distilled spirits upon which the internal revenue tax had not been paid. The principal assignments of error relate to the admission of evidence obtained by state officers in the course of a search under an invalid search warrant, the admission of evidence as to the finding of liquor on defendant's premises on another occasion nearly a year prior to the time of the offense for which he was being tried, and the refusal to permit testimony as to the general character of the defendant in advance of his taking the witness stand in his own behalf. In the view which we take of the case, questions raised by other assignments need not be considered.

The evidence shows that the defendant, who is employed as a laborer in a lumber plant in Dickenson county, Va., lives with his wife and six children, three of whom are grown, in a house about a mile from the lumber plant. His wife operates a restaurant in the house and occasionally takes boarders. On March 13, 1937, an investigator of the Virginia Alcoholic Beverage Control Board obtained a warrant from the mayor of Clintwood, Va., to search these premises. The warrant recited merely that the investigator had made oath on information and belief that alcoholic beverages were possessed there contrary to law, without showing either the sources of his information or the grounds of his belief and without any accompanying affidavit in which these were set forth. Under this warrant the investigator searched the premises of defendant and found at two different places a total of two gallons of "moonshine" whisky. He did not prosecute the defendant in the state courts for the possession of this whisky, but turned him over to the federal officers who adopted the case and prosecuted it in the federal courts in a proceeding commenced by a warrant before a United States commissioner and continued by the indictment and prosecution herein. It is stipulated in the record "that state officers generally understood that where they have made a seizure of illicit liquor they are at liberty to consult with the federal officers with a view to determining whether or not the federal officers adopt the case and institute a federal prosecution against the particular offender; that they frequently do pursue this course and that frequently such cases are adopted."

On the trial below the government, over the objection of the defendant, was allowed to introduce the testimony of the state officers as to the finding of the liquor in the course of the search. Defendant testified in his own behalf that his wife and children ran the house while he was at work in the lumber plant and that he had no knowledge with respect to the liquor that had been found and no interest in it. On cross-examination he was asked as to having liquor in his house at other times and denied having had any at any time except a little which he had purchased at the A. B. C. stores for his own use. Over his objection, the specific question was asked as to liquor found on his premises by a state officer about a year before the trial and about ten months before the search of March 13th. He denied that he told the officers at that time that liquor which they had found upon his premises was for his personal use. They were permitted, however, over his objection, to testify in rebuttal that they searched his premises at that time and found a half gallon of liquor in a fruit jar, that defendant at the time of the search said that it was a little that he had for his personal use, but that, on the trial for its possession, he denied any knowledge of it. They further testified that upon that trial defendant was acquitted of the charge preferred against him.

Before defendant testified in the court below, he offered to prove his general reputation both as a law-abiding citizen and for truth and veracity by two witnesses. This testimony was excluded, although counsel avowed their intention of calling defendant as a witness, and it was not subsequently offered. The record shows that the trial judge stated as his reason for excluding it that "the defendant had not testified at the time the evidence was offered and the court could not foretell what the evidence of the defendant would be and whether it was of such nature as would justify supporting it by evidence of the defendant's general reputation for truthfulness."

We think that there was error in admitting the evidence obtained as a result of the search. The warrant under which the officers acted, not being supported by affidavit showing facts constituting probable cause for the belief that liquor was possessed on the premises in violation of law, did not meet the requirements of the Fourth Amendment to the Constitution. Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159. It is true that, since that amendment is not a limitation upon the powers of the states, evidence obtained by state officers acting entirely on their own account will not...