United States v. Warnell, 7031.

• Citation: 67 F.2d 831
• Decision Date: 05 December 1933
• Docket Number: No. 7031.,7031.
• Parties: UNITED STATES v. WARNELL et al.
• Court: U.S. Court of Appeals — Fifth Circuit

67 F.2d 831 (1933)

UNITED STATES v. WARNELL et al.

No. 7031.

Circuit Court of Appeals, Fifth Circuit.

December 5, 1933.

M. S. McCorquodale, Asst. U. S. Atty., of Houston, Tex.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

This suit was instituted February 6, 1932, against Warnell and his sureties on a release bond to recover $1,000, the full penalty of the bond. Warnell was served by publication; the sureties personally. They appeared defending on the ground that on October 13, the day the cause was set for trial, the sureties had directed Warnell, who had the car in his possession, to deliver it into the custody of the Administrator as required by the bond, and that subsequently he had told them that he did so deliver it. That on October 21st the Administrator had possession of the car, and on November 27 he had delivered it on bond to the Johnson Motor Company. That in effect the car is now in the possession of the United States. The agreed facts are: On February 2, 1931, the car being in the possession of the Deputy Prohibition Administrator, a libel of forfeiture for violation of the Prohibition Act was filed on an automobile which had been seized from one George Warnell. On March 2, Warnell and the two appellees as sureties obtained a release of the car by executing and delivering to the Administrator the bond required for its release. This bond, after describing the vehicle and reciting its due seizure under the National Prohibition Act, section 41, Title 27 USCA, provided:

"Now Therefore, the condition of this obligation is such, that if the said principal shall return the aforesaid conveyance or vehicle to the custody of the officer approving this bond on the day of trial to abide the judgment of the court; and, in case the said property shall be forfeited to the United States, or the court shall order a sale of said conveyance or vehicle, that if the said principal shall pay the difference between the value of said vehicle or conveyance at the time of the execution hereof, which is hereby stipulated to be one half of the penal sum of this bond, and its value on the date of its return as aforesaid, less depreciation due to reasonable wear and tear of ordinary use, and the said principal shall pay off any liens or encumbrances thereon except the following liens heretofore existing, namely,

"Mortgage to Johnson Motor Company to secure payment of twelve (12) Notes of $25.00 each, all dated November 15th, 1930, then this obligation to be void, otherwise to remain in full force and effect."

On May 11 the libel of forfeiture filed before the car was bonded, was dismissed.

On October 13, the date set for the trial of Warnell, though he was convicted for the offense of transporting intoxicating liquor in the bonded car, it was not delivered as it had been agreed in the bond it would be. On October 21 the car was again seized for the unlawful transportation in it of intoxicating liquor. This time one George Paroni was in it, and he was later, on March 7, 1932, convicted in the federal court of the offense. The car was again bonded out of the possession of the Deputy Administrator, by the Johnson Motor Company, the lienholder, this time for $500. The district judge thought that the action of the Prohibition Administrator in releasing the car after the second seizure, coupled with the absence of proof that either Warnell or the sureties were complicit in the second illegal...