United States v. QUANTITY OF CONTRABAND LIQUOR, ETC., 3811.

Citation47 F.2d 321
Decision Date06 March 1930
Docket NumberNo. 3811.,3811.
PartiesUNITED STATES v. A QUANTITY OF CONTRABAND LIQUOR AND MISCELLANEOUS ARTICLES (Sol ZARKIN, Claimant).
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania

Louis E. Graham, of Pittsburgh, Pa., for the United States.

John S. Pyle, of Pittsburgh, Pa., for petitioner-respondent.

McVICAR, District Judge.

This is a proceeding by the United States, under section 25, title 2, of the National Prohibition Act (27 USCA § 39), to condemn and destroy intoxicating liquor.

The government alleges in its libel that it is in possession of the intoxicating liquor described in the libel; that it was seized by federal prohibition agents April 23, 1927, from Sol Zarkin et al., at a saloon and cutting plant located at Nos. 1206 and 1208 Fifth avenue, Pittsburgh, Pa.; that the goods seized are contraband, and the prayer is that an order be made condemning, forfeiting, and directing that the same be destroyed. Sol Zarkin filed an answer thereto, wherein he alleged that he was the owner of the goods seized; that a part of the liquor seized was seized from his private dwelling house at No. 1206 Fifth avenue; that the seizure made therein was without a search warrant, and therefore was unlawful. The answer contained a prayer that the libel be dismissed and the liquor seized in his dwelling house be returned to him.

The evidence establishes that federal prohibition agents, on April 23, 1927, seized the intoxicating liquor described in the libel at Nos. 1206 and 1208 Fifth avenue, Pittsburgh, Pa.; that No. 1206 Fifth avenue is the private residence of Sol Zarkin; that Zarkin was arrested away from his private dwelling; that the agents had a search warrant to seize intoxicating liquor at No. 1208 Fifth avenue. There was no evidence as to what portion of the liquor seized was located at No. 1208 Fifth avenue, or as to what portion was located at No. 1206 Fifth avenue. The liquor seized is now in the possession of the government.

The government contends that the seizure at No. 1208 Fifth avenue was lawful under the search warrant, and also that the seizure at No. 1206 Fifth avenue was lawful, as being incidental to the arrest of Zarkin made at the time of the seizure. Zarkin contends that the seizure from his private residence was illegal, and that the court should order the liquor seized from his private dwelling returned to him.

The purpose of the Eighteenth Amendment and the National Prohibition Act (27 USCA) is to protect public life and health by prohibiting the use of intoxicating liquor as a beverage. Under section 3, title 2, of the National Prohibition Act (27 USCA § 12), it is expressly stated: "This Act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented." Congress has express power to enact such legislation as may be necessary and proper to make the Eighteenth Amendment effective. The second section of the Eighteenth Amendment provides that "Congress * * * shall have concurrent power to enforce this article by appropriate legislation." The last paragraph of section 8, article 1, of the Constitution, confers on Congress power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

In Lambert v. Yellowley et al., 272 U. S. 581, 595, 47 S. Ct. 210, 213, 71 L. Ed. 422, 49 A. L. R. 575 (Second Circuit), the Supreme Court said:

"The power of the federal government, granted by the Eighteenth Amendment, to enforce the prohibition of the manufacture, sale and transportation of intoxicating liquor carries with it power to enact any legislative measures reasonably adapted to promote the purpose."

See, also, Carnahan v. United States, 35 F.(2d) 96, 98, 67 A. L. R. 1035 (8th Circuit).

The National Prohibition Act makes it unlawful for any person to possess intoxicating liquor except as authorized therein; section 3, title 2 (27 USCA § 12), thereof reads:

"No person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act."

The exceptions which provide where and how intoxicating liquor may be lawfully possessed are, under a permit from the United States, or for medicinal purposes under a doctor's prescription, or by a hospital for the treatment of persons suffering from alcoholism, as provided by section 6 of title 2 of the said act (27 USCA § 16); also liquors may be possessed in one's private dwelling house for the use of the possessor, his family and his bona fide guests when entertained by him, as provided in section 33 of title 2 of the act (27 USCA § 50). This exception, however, applies only to liquor obtained before the act went into effect. The Supreme Court, in the case of Cunard Steamship Co. v. Mellon, 262 U. S. 100, 127, 43 S. Ct. 504, 508, 67 L. Ed. 894, 27 A. L. R. 1306, said:

"The only instance in which the possession of intoxicating liquor for beverage purposes is recognized as lawful is where the liquor was obtained before the act went into effect and is kept in the owner's dwelling for use therein by him, his family, and his bona fide guests."

See, also, Street v. Lincoln Safe Deposit Co. et al., 254 U. S. 88, 41 S. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548, and In re Baldi (D. C.) 33 F.(2d) 973.

The provision in section 3 of title 2 of the National Prohibition Act (27 USCA § 12) is a constitutional exercise of power by Congress. U. S. v. Murphy (D. C. N. Y. 1920) 264 F. 842; Rose v. U. S. (C. C. A. Ohio, 1921) 274 F. 245, certiorari denied (1921) 257 U. S. 655, 42 S. Ct. 97, 66 L. Ed. 419; Page v. U. S. (C. C. A. Cal. 1922) 278 F. 41, certiorari denied (1922) 258 U. S. 627, 42 S. Ct. 461, 66 L. Ed. 799; Massey v. U. S. (C. C. A. Ark. 1922) 281 F. 293; Keen v. U. S. (C. C. A. Mo. 1926) 11 F.(2d) 260. This provision relating to the offense of possession has been before the Supreme Court a number of times, and its constitutionality does not seem to have been questioned. See Cunard Steamship Co. v. Mellon, 262 U. S. 100, 127, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306, and Street v. Lincoln Safe Deposit Co. et al., 254 U. S. 88, 41 S. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548.

In any action concerning intoxicating liquor including that possessed in a private dwelling, the burden is on the possessor to prove that the liquor possessed was lawfully acquired, possessed, and used. In section 33, title 2 (27 USCA § 50), it is stated:

"And the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used."

In Filippelli v. United States, 6 F.(2d) 121, 125 (9th Circuit), the court said:

"The request to charge the jury that it was not unlawful for the plaintiff in error to possess intoxicating liquor in his private residence, while occupied by him as his private dwelling only, provided such liquor was for the use of the plaintiff in error, his family, and bona fide guests, was properly refused, because the request assumed that liquor unlawfully manufactured or acquired might be lawfully possessed, and such is not the law. True, a party may still possess intoxicating liquor for beverage purposes, notwithstanding the National Prohibition Act; but the law imposes upon him the burden of proving the legality of his possession, and no such showing was made here."

In Myers et al. v. United States, 18 F. (2d) 529, 530 (8th Circuit), the court said:

"This section affords no protection for the possession of liquor unlawfully acquired, whether in a private dwelling or elsewhere, and whether intended for personal use or otherwise, and the burden is thrown upon the possessor to prove that the liquor was lawfully acquired. Filippelli v. United States (C. C. A. 9) 6 F.(2d) 121. In this case it was admitted that the alcohol had been purchased and delivered that same evening, and was therefore unlawfully acquired."

In Herter v. United States, 33 F.(2d) 402, 65 A. L. R. 1240 (9th Circuit), and in Voorhies v. United States, 299 F. 275 (5th Circuit), similar rulings were made where possession was in a private dwelling. See, also, United States v. One Quart Bottle of Alleged Whiskey (D. C.) 29 F.(2d) 929, 931.

Congress has power to place the burden of proof upon the possessor. In Yee Hem v. United States, 268 U. S. 178, 45 S. Ct. 470, 69 L. Ed. 904, which was a proceeding under the Narcotic Act of February 9, 1909, as amended by Act 1914, 38 Stat. 375, in speaking of the provisions of the act under consideration, the Supreme Court said (page 182 of 268 U. S., 45 S. Ct. 470, 471):

"Section 2 provides, among other things, that if any person shall conceal or facilitate the concealment of such opium, etc., after importation, knowing the same to have been imported contrary to law, the offender shall be subject to fine or imprisonment or both. It further provides that whenever the defendant on trial is shown to have, or to have had, possession of such opium, etc., `such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury.' Section 3 provides that on and after July 1, 1913: `All smoking opium or opium prepared for smoking found within the United States shall be presumed to have been imported after the first day of April, nineteen hundred and nine, and the burden of proof shall be on the claimant or the accused to rebut such presumption.'"

And as to the power of Congress to create such presumption, the court said (page 184 of 268 U. S., 45 S. Ct. 470, 471):

"We think it is not an illogical inference that opium, found in this country more than 4 years (in the present case, more than 14 years) after...

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