Swan v. United States

• Decision Date: 03 December 1923
• Docket Number: 3980.
• Citation: 295 F. 921
• Parties: SWAN v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

295 F. 921

SWAN v. UNITED STATES.

No. 3980.

United States Court of Appeals, District of Columbia.

December 3, 1923

Submitted November 7, 1923.

Rehearing Denied December 21, 1923.

Appeal from the Supreme Court of the District of Columbia.

James A. O'Shea, of Washington, D.C., for appellant.

Peyton Gordon and J. H. Bilbrey, both of Washington, D.C., for the United States.

Before SMYTH, Chief Justice, VAN ORSDEL, Associate Justice, and MARTIN, presiding Judge of the United States Court of Customs Appeals.

VAN ORSDEL, Associate Justice.

This appeal is from a judgment of conviction in the Supreme Court of the District of Columbia of appellant, defendant below upon an indictment in six counts. At the request of counsel for defendant, the court directed a verdict of not guilty on all the counts excepting the fourth, which charged as follows 'That the said Charles T. Swan, on, to wit, the said first day of January, in the year of our Lord one thousand nine hundred and nineteen, and on divers other days and times between that day and the day of the finding of this indictment, and at the District of Columbia aforesaid feloniously and unlawfully did set up and keep a certain gaming table for the purpose of gaming, that is to say, for the purpose of betting and wagering money and property upon the results of horse races, against the form of the statute in such case made and provided, and against the peace and government of the said United States.'

It appears from the testimony that defendant conducted a cigar store in this city; that certain police officers, including one Lawrence Miller, in the month of April, 1920, visited the store and placed bets with defendant upon horse races; that upon this information a warrant was procured, charging defendant with betting and gaming with Miller; that defendant was arrested at his store and at the time of the arrest a large number of betting slips, including that of Miller among which was found the betting slips, including that of Miller, which were introduced in evidence at the trial; that there was also found on the premises about $24,000 in cash in which defendant stated at the time of the arrest, would be found two $1 bills given to him by Miller. A number of other witnesses testified to the wager of bets on horse races with defendant, and identified, among the slips seized, slips made on those occasions.

Defendant petitioned the court below for an order directing the return to him of the papers taken from his place of business by the police officers at the time of his arrest. The petition was denied, and upon this ruling error is assigned. The papers in question were evidence of crime, and were taken from the premises of the defendant at the time of his arrest and held for evidential purposes. Property seized in connection with a lawful arrest, and which is held merely as evidence of crime, does not come within the protection of the provisions of the Constitution prohibiting search and seizure without a search warrant. United States v. Mills (C.C.) 185 F. 318; United States v. Kraus (D.C.) 270 F. 578; Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177. In the Weeks Case the court had under consideration an unlawful search and seizure of documents, subsequently sought to be used against the defendant. The court, distinguishing the case from a proper seizure, speaking through Mr. Justice Day, said:

'What, then, is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, art. 211; Wharton, Crim. Plead. and Practice (8th Ed.) art. 60; Dillon v. O'Brien and Davis, 16 Cox, C.C. 245. Nor is it the case of testimony offered at a trial where the court is asked to stop and consider the illegal means by which proofs, otherwise competent, were obtained, of which we shall have occasion to treat later in this opinion. Nor is it the case of burglar's tools or other proofs of guilt found upon his arrest within the control of the accused.' It is claimed that the indictment failed to charge any offense. In disposing of this contention a number of assignments relating to the sufficiency of the indictment can be speedily disposed of. Count 4 of the indictment is laid under section 865 of the District of Columbia Code, which is as follows:

'Whoever shall in the District set up or keep any gaming table, or any house, vessel, or place, on land or water, for the purpose of gaming, or gambling device commonly called ABC, faro bank, EO,

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