Todd v. United States, 5958.
| Decision Date | 05 May 1931 |
| Docket Number | No. 5958.,5958. |
| Citation | 48 F.2d 530 |
| Parties | TODD et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Morris M. Givens and C. J. Hardee, both of Tampa, Fla., for appellants.
W. P. Hughes, U. S. Dist. Atty., of Jacksonville, Fla.
Before FOSTER, Circuit Judge, and HUTCHESON and SIBLEY, District Judges.
In this case, upon the trial of an indictment joining three counts, one against Chevis, one against Todd, and one against Todd and Day jointly, Chevis was acquitted, and Todd and Day found guilty as charged.
The first count charged in substance that on the 8th day of October, 1929, at Tampa, Hillsborough county, Fla., one T. M. Chevis had in his unlawful possession one pint of whisky; the second that Pirl Todd did, on the same day and in the same place, have in his possession intoxicating liquors, to wit, 59 bottles of home-brew beer, containing one-half of 1 per cent. and more of alcohol by volume fit and intended for use for beverage purposes, while the third count charged that, on the same day and in the same city and county, Pirl Todd and Leo Day did "unlawfully, willfully and knowingly maintain a common nuisance, that is to say, a certain one story frame building, located at 713 Morgan Street, city, county and district aforesaid, where intoxicating liquors containing ½ of 1% of alcohol by volume were then and there unlawfully kept for sale and sold for beverage purposes."
The United States established by the uncontroverted testimony of its witnesses, the defendants offering no proof, that there were two small buildings, with a space six or eight feet between, one numbered 713 Morgan street, known as Leo Day's place, the other known as the tire shop; that the rear of the tire shop and of 713 Morgan street were connected by a shed; that Day owned and maintained 713 Morgan street ostensibly as a taxi stand, but that it had long had the reputation of being a place where intoxicating liquors were commonly sold; that the place had been under more or less constant observation; that many persons had been seen, especially at night, going into Day's place; cars had been seen to drive up and drive away, while one McMurray had been arrested in connection with some liquor in a garbage can in a vacant lot back of the place; that Day had on that occasion advised the officers that McMurray was working for him at 713 Morgan street; that he (Day) was in the bootlegging business, and everybody knew it; that McMurray was his man; and that he would plead him guilty.
There was no direct proof as to whether Day owned, or did not own, the "tire shop" building, but the proof was ample to sustain the conclusion that he had control at least of the back part of it, where the liquor was found. One of the government's witnesses testified:
There was testimony that Day and Todd had been frequently seen hanging around this place. The testimony as to the occurrences on October 8th, when the arrests out of which this indictment grew were made, is to the effect that prohibition officers, having seen Chevis stop in front of Day's place, 713 Morgan street, and Todd, the waiter, come out of there, talk to Chevis, go back into the building, go around behind and to a little shed room in another building about eight feet back of 713 Morgan street, and come out with a bottle partly wrapped which he gave to Chevis, had accosted Chevis and seized the bottle, which proved to be whisky; that immediately thereafter, seeing Todd, the waiter, who, after delivering the bottle to Chevis, had gone back to the little room at the rear, come out of there and go into 713 Morgan street with a bottle in his hand, he had followed him in in time to see him throw the bottle out of the window, and to see the broken bottle and contents on the ground. This bottle also had contained whisky.
Having arrested Chevis and Todd, he then went back to the little building whence he had seen Todd twice emerge, and entering, seized 59 bottles of intoxicating beer.
Day and Todd have appealed, urging reversible error in overruling their joint and several motions for bill of particulars and to quash, their demurrers to the indictment for misjoinder and indefiniteness, and their objections to the introduction in evidence of the liquors seized, because seized without probable cause as to them.
From the statement of the evidence above, it is clear that, though ordinarily it is not good practice to join in an indictment counts charging distinct offenses against separate defendants, U. S. v. McConnell (D. C.) 285 F. 164, the action of the court in this case cannot be assigned as prejudicial error, not only because a motion to quash is ordinarily addressed to the discretion of the court and is not the subject of review by an appellate court, Gay v. U. S. (C. C. A.) 12 F.(2d) 433, and because, if there was misjoinder, the objection was not well taken by demurrer, but must...
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