United States v. Keown

• Decision Date: 09 June 1937
• Parties: UNITED STATES v. KEOWN et al.
• Court: U.S. District Court — Western District of Kentucky

19 F. Supp. 639

UNITED STATES v. KEOWN et al.

District Court, W. D. Kentucky.

June 9, 1937.

Bunk Gardner, U. S. Atty., and Eli H. Brown, III, Asst. U. S. Atty., both of Louisville, Ky., for plaintiff.

Rodes K. Myers, of Bowling Green, Ky., for defendants.

HAMILTON, District Judge.

The defendants were indicted in the Bowling Green Division of this court on May 17, 1937, for having in their possession 155 gallons of whisky without stamps affixed to the containers showing the quantity and payment of tax. They were also charged, in the second count of the indictment, with concealing the liquor in a 1936 Ford Coach automobile, motor No. 18-3265263, on one of the public highways of the commonwealth of Kentucky.

The defendants waived trial by jury, submitted the law and facts to the court, and moved to suppress the evidence on which the indictment was obtained because the arresting officer stopped and searched the car without warrant, and, as a result of the illegal search, found in the car the liquor which is the subject of this prosecution. The motion to quash was heard on the trial of the case, and at the conclusion of the evidence was overruled; the defendants found guilty; and the imposition of sentence postponed to December 13, 1937.

Defendants have filed motion and grounds for a new trial, insisting the court committed an error in overruling the motion to suppress. It is conceded by them that if the evidence was legally obtained, they are guilty of the charges laid in the indictment.

It is further urged as grounds for a new trial that the court erred in not requiring the arresting officer to disclose, on cross-examination by defendants' counsel, the name of his informant, who had theretofore told him the time and place where the defendants would possess and transport the liquor, and on which information the arrest and subsequent search of the car were made.

Lester Witherspoon, an agent for the Alcohol Tax Unit, testified the defendant Keown was known to him as a bootlegger and had been arrested November 1, 1934, for manufacturing and possessing untaxpaid distilled spirits, but the charge against him had at that time been ignored by the grand jury. The witness further testified that two or three days before this defendant's arrest a person with whom he was well acquainted and who had theretofore given him similar information, which he had always found to be true, informed him that Keown would transport over Highway 31-W, about April 21, 1937, moonshine liquor in a 1936 Ford Coach automobile, with Kentucky license No. 295-M-6, and on this date, while he was patroling the highway pursuant to his informant's directions, the defendants passed him in the car bearing said license, and he and another agent, Henry Wehmhoff, pursued the car, and it being in the nighttime flashed their light into it, and saw some covered objects in the rear part thereof. The car was heavily loaded and going at a rapid rate of speed. The agents compelled the driver to stop, searched the car, and found 115 gallons of untaxpaid spirits in 23 5-gallon wood jacketed cans in the rear of the car, and also a tank in the back of the car with 8 5-gallon wood jacketed cans.

The defendants were immediately placed under arrest and the car and its contents seized. Agent Witherspoon was asked by defendants' counsel, on cross-examination, the name of his informer. He refused to answer and the court ruled he was not required to disclose the name of the person who had given him the information concerning the defendants' violation of the internal revenue laws.

The arrest of the defendants without a warrant and contemporaneous search of the car were valid, if there was probable cause. Compare: Husty v. United States, 282 U.S. 694, 704, 51 S.Ct. 240, 242, 243, 75 L.Ed. 629, 74 A.L.R. 1407. In this case, the arresting officer was asked the name of his informer, but refused to answer and was not required to do so by the lower court. The Supreme Court refused to rule on the competency of the question and on this subject said: "In the course of the hearing on the motion, questions by petitioners seeking to establish the name and identity of the officer's informant were excluded. Petitioners ask review of these rulings on the evidence, but we do not consider them, since they were not assigned as error on the appeal to the Circuit Court of Appeals 48 F.(2d) 1076, and it does not appear that they were presented or passed upon there. Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566 568 71 L.Ed. 996."

It is a general rule of law that the duty rests on every citizen to communicate to his government any information he has of the commission of crimes against it, and to encourage such laudable conduct, the information thus given is a government secret and will not be disclosed.

In the case of Vogel v. Gruaz, 110 U.S. 311, 317, 4 S.Ct. 12, 14, 28 L.Ed. 158, Gruaz sued Bircher, Vogel's testator, to recover damages for the speaking by Bircher of false, malicious, scandalous, and defamatory words of Gruaz. The specific charge was that Gruaz had stolen money, a felony under the laws of Illinois. Bircher had communicated the facts showing the commission of the alleged crime to the prosecuting attorney of the state of Illinois, and defense was made that the language used was privileged. The court, in upholding this contention, said: "By the statute of Illinois in force at the time of this occurrence, it was made the duty of each state's attorney to `commence and prosecute' all criminal actions, suits, indictments, and all prosecutions, in any court of record in his county, in which the people of the state or county might be concerned. (Rev.St.1874, c. 14, § 5, subd. 1 Smith-Hurd Ill.Stats. c. 14, § 5, subd. 1.) Under this provision it was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts before the public officer whose duty it was to commence a prosecution for the crime. Public policy will protect all such communications absolutely, and without reference to the motive or intent of the informer or the question of probable cause; the ground being that greater mischief will probably result from requiring or permitting them to be disclosed than from wholly rejecting them."

In the case of In re Quarles and Butler, Petitioners, 158 U.S. 532, 538, 15 S.Ct. 959, 960, 39 L.Ed. 1080, Henry Worley informed the United States Marshal that one George Terry was violating the internal revenue laws. Defendants with others, as reprisal, went to Worley's house in disguise, took him from his house, beat, bruised, shot at, and otherwise mistreated him. Indictments were returned against them, and they were tried and convicted of a conspiracy to injure, oppress, etc., said Worley.

Defendants moved for arrest of judgment on the following grounds:

"1. Because in said indictment there is no allegation that William J. Duncan was an officer of the United States, and charged with the enforcement of the internal revenue laws; nor is there any allegation that the said William J. Duncan was authorized to take information upon such subject, or to employ persons for the service of the United States.

"2. Because there is no allegation that Henry Worley was in the service or employment of the United States.

"3. Because there is no such official as a United States deputy marshal, as charged in the indictment.

"4. Because there is no such right and privilege secured by the Constitution and laws of the United States, within the meaning of sections 5508 and 5509 of the Revised Statutes of the United States, as that set out in the indictment.

"5. Because there is no crime or offense charged in the said bill of indictment, of which the courts of the United States have jurisdiction."

The court, in denying the writ, said:

"It is the duty and the right, not only of every peace officer of the United States, but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States. It is the right, as well as the duty, of every citizen, when called upon by the proper officer, to act as part of the posse comitatus in upholding the laws of his country. It is likewise his right and his duty to communicate to the executive officers any information which he has of the commission of an offense against those laws; and such information, given by a private citizen, is a privileged and confidential communication, for which no action of libel or slander will lie, and the disclosure of which cannot be compelled without the assent of the government. Vogel v. Gruaz, 110 U.S. 311, 4 S.Ct. 12 28 L.Ed. 158; United States v. Moses, Fed.Cas. No. 15,825, 4 Wash.C.C. 726; Worthington v. Scribner, 109 Mass. 487 12 Am.Rep. 736.

"The right of a citizen informing of a violation of law, like the right of a prisoner in custody upon a charge of such violation, to be protected against lawless violence, does not depend upon any of the amendments to the constitution, but arises out of the creation and establishment by the constitution itself of a national government, paramount and supreme within its sphere of action. * * *

"The necessary conclusion is that it is the right of every private citizen of the United States to inform a marshal of the United States or his deputy of a violation of the internal revenue laws of the United States; that this right is secured to the citizen by the Constitution of the United States; and that a conspiracy to injure, oppress, threaten or intimidate him in the free exercise or enjoyment of this right, or because of his having exercised it, is punishable under section 5508 of the Revised Statutes."

In the case of United States v. Moses, 27 Fed.Cas. page 5, No. 15,825, the defendant was arrested without a warrant on information by a deputy marshal for the crime of counterfeiting. The court, in holding the officer was not required to disclose the name of his...