Tritico v. United States
| Decision Date | 17 February 1925 |
| Docket Number | No. 4322.,4322. |
| Citation | 4 F.2d 664 |
| Parties | TRITICO et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
C. G. Dibrell and O. S. York, both of Galveston, Tex., for plaintiffs in error.
H. M. Holden, U. S. Atty., and Edwin R. Warnken, Asst. U. S. Atty., both of Houston, Tex.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
This is an indictment in three counts for violations of the National Prohibition Act. Defendants are charged in the first count with the unlawful possession of intoxicating liquor; in the second count with the unlawful possession of property designed for the manufacture of liquor; and in the third count with the unlawful manufacture of liquor.
Two prohibition agents entered premises where no one was living, and when within about 300 yards of the barn they detected the odor of mash. They proceeded to the barn, and there found the defendants engaged in operating six stills, and in possession of a considerable quantity of mash, and 155 gallons of liquor which had been illicitly distilled. All of the defendants testified in the case, but none of them claimed to have been living either in the barn or elsewhere on the premises.
The defendants were convicted on all counts of the indictment, and upon each of them the court imposed a general sentence without reference to the several counts, consisting of a fine of $500 and imprisonment for six months. The officers had no search warrant, and for this reason it is claimed that the search was illegal.
The search was not an unreasonable one. The officers, being made aware through one of their senses that the prohibition law was being violated, had the right to enter and make the search, although they did not have a warrant. McBride v. United States (C. C. A.) 284 F. 416. The defendants, not being occupants of the premises, were not entitled to object, even though it be assumed that the search would have been in violation of the rights of the occupant if there had been one. Schwartz v. United States (C. C. A.) 294 F. 528. But there was no occupant of the premises, and so the privacy of the home was not invaded. Under the facts, the protection of the Fourth Amendment did not extend to the premises in question. Hester v. United States, 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898.
The sentences imposed were for first offenses. Therefore the maximum sentence authorized for the manufacture or sale is a fine of not more than $1,000 or imprisonment not exceeding six months; and the maximum sentence for possession either of liquor or distillery apparatus is a fine of $500. National Prohibition Act, title 2, § 29 (Comp. St. Ann. Supp. 1923, § 10138½p).
It thus appears that the sentence is greater than could have been lawfully imposed under any one count, because it includes both fine and imprisonment. But we are of opinion that the third count is the only one which should have been considered when passing sentence, because the manufacture therein charged includes the possession of liquor charged in the first count and the possession of distillery apparatus charged in the second count.
Under the Fifth Amendment one may not for the same offense be twice put in jeopardy. The test of what is the same offense is stated by Mr. Bishop to be "whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be." 1 Bishop on Criminal Law (9th Ed.) § 1052. See, also, § 1051. This test has been adopted by the Supreme Court. In re Nielsen, 131 U. S. 176, 9 S. Ct. 672, 33 L. Ed. 118; Carter v. McClaughry, 183 U. S. 365;1 Burton v. United States, 202 U. S. 344, 377, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Gavieres v. United States, 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489; Morgan v. Devine, 237 U. S. 632, 35 S. Ct. 712, 59 L. Ed. 1153; Ebeling v. Morgan, 237 U. S. 625, 35 S. Ct. 710, 59...
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Walker v. United States
...to buildings outside the curtilage. Of course, if there is no occupant of the premises, the barn would not be protected, Tritico v. United States, 5 Cir., 4 F.2d 664. 7 Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 8 No minute search was necessary because the eviden......
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...he may well lack standing to object to the seizure of evidence, since he would have been a trespasser thereon. Tritico v. United States, 4 F.2d 664 (5th Cir. 1925). See United States v. Thomas, 216 F.Supp. 942, 946 (N.D.Cal.1963).2 That the federal agents would also have had to commit a "si......
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