United States v. Page

• Decision Date: 21 December 1921
• Citation: 277 F. 459
• Parties: UNITED STATES v. PAGE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

277 F. 459

UNITED STATES v. PAGE et al.

United States District Court, W.D. Virginia.

December 21, 1921

Thos J. Muncy, U.S. Atty., of Roanoke, Va., C. E. Gentry, Asst U.S. Atty., of Charlottesville, Va.

Wm Kinckle Allen, of Amherst, Va., for defendants.

McDOWELL District Judge.

The indictment in this case, which has been demurred to, reads as follows:

'The grand jurors of the United States elected, impaneled, sworn, and charged to inquire for the body of said Western district of Virginia, upon their oaths present:

'That heretofore, to wit, on the 16th day of October, 1920, in Amherst county, Va., in said Western district of Virginia, and within the jurisdiction of this court, J. M. Page and Grattan Massie unlawfully and feloniously did forcibly assault, resist, oppose, prevent, impede and interfere with certain officers of the United States, to wit, S. R. Brane supervising federal prohibition agent, R. H. Drummond, R. M. Coffey, H. B. Stebbins, C. M. Campbell, and H. B. Crenshaw federal prohibition agents, whose duty it was to enforce criminal laws, and who were then and there engaged in the enforcement of the National Prohibition Act, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

'Second Count. And the grand jurors aforesaid, upon their oaths aforesaid, do further present:

'That at the time and place aforesaid, and within the jurisdiction of this court aforesaid, the said J. M. Page and Grattan Massie unlawfully and feloniously did use a deadly and dangerous weapon, to wit, a shotgun, in resisting certain persons, to wit, S. R. Brame, supervising federal prohibition agent, R. H. Drummond, R. M. Coffey, H. B. Stebbins, C. M. Campbell, and H. B. Crenshaw federal prohibition agents, said persons being then and there authorized to make searches and seizure in the execution of their duty, with the intent to commit bodily injury upon them, the said S. R. Brame, R. H. Drummond, R. M. Coffey, H. B. Stebbins, C. M. Campbell, and H. B. Crenshaw, prohibition agents, and to deter and prevent them from discharging their duty, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

'Vio. Section 28, Title 2,

National Prohibition Act.

and Sec. 65, Penal Code.'

Section 65, Crim. Code (Comp. St. Sec. 10233) reads:

'Whoever shall forcibly assault, resist, oppose, prevent, impede, or interfere with any officer of the customs or of the internal revenue, or his deputy, or any person assisting him in the execution of his duties, or any person authorized to make searches and seizures, in the execution of his duty, or shall rescue, attempt to rescue, or cause to be rescued, any property which has been seized by any person so authorized; or whoever before, at, or after such seizure, in order to prevent the seizure or securing of any goods, wares, or merchandise by any person so authorized, shall stave, break, throw overboard, destroy or remove the same, shall be fined not more than two thousand dollars or imprisoned not more than one year, or both; and whoever shall use any deadly or dangerous weapon in resisting any person authorized to make searches or seizures, in the execution of his duty, with intent to commit a bodily injury upon him or to deter or prevent him from discharging his duty, shall be imprisoned not more than ten years.'

Without considering any other question, the first count of the indictment seems to me to be fatally defective in that there is a failure to allege that the defendants knew that the persons assaulted were prohibition officers. Pettibone v. U.S., 148 U.S. 197, 205, 13 Sup.Ct. 542, 37 L.Ed. 419; U.S. v. Taylor (C.C.) 57 F. 391.

The second count of the indictment, which is founded on the last clause of section 65, requires some discussion, as this clause of the statute presents at least two questions of some difficulty.

The first question is whether or not the protection afforded by this section is confined to cases where the officer is executing a search warrant, and, if not, the second question is whether or not this clause is applicable only where the official duty being performed is that of making a search or a seizure.

1. Certain customs officers were by section 24, Act July 31, 1789 (1 Stat. 29, 43), authorized to search vessels without a search warrant. See, also, to the same effect, section 68, Act of March 2, 1799 (1 Stat. 627, 677, 678). By section 2, Act March 3, 1815 (3 Stat. 232), customs officers are authorized to search without warrant any vehicle and even packages carried by persons. The proviso to that section reads:

'Provided always, that the necessity of a search warrant, arising under this act, shall in no case be considered as applicable to any carriage, wagon, cart, sleigh, vessel, boat or other vehicle of whatever form or construction, employed as a medium of transportation or to packages on any animal or animals, or carried by man on foot.'

See, also, sections 3059, 3061, 3064, 3066, Rev. Stats. (Comp. St. Secs. 5761, 5763, 5767, 5769), which seem clearly to provide for searches and seizures without search warrants. And in this connection it may be said that it would be absurd to contend that customs officers must be armed with a search warrant in order to search the baggage of arriving passengers at ports of entry. Beyond doubt customs officials are legally authorized and required to make many searches and seizures without search warrants.

Now as to internal revenue officers: Section 3276, R.S. (Comp....