United States v. Zerbst, 2720-A.
Decision Date | 02 April 1953 |
Docket Number | No. 2720-A.,2720-A. |
Parties | UNITED STATES v. ZERBST. |
Court | U.S. District Court — District of South Carolina |
Louis M. Shimel, Asst. U. S. Atty., Charleston, S. C., for plaintiff.
E. K. Pritchard, J. C. Long and Arthur Rittenberg, Charleston, S. C., for defendant.
The defendant has moved that the warrant against him be dismissed on the following grounds:
The only questions presented in the oral and written arguments of both the Government and the defendant are as follows:
(1) Does the District Court have the authority to review the action of the United States Commissioner in finding that there was probable cause for holding the defendant for the grand jury?
(2) Was there sufficient evidence before the commissioner to warrant his finding that there was probable cause to believe that the defendant violated the provisions of Section 2913 Title 26 of the Internal Revenue Code?
The defendant J. D. Zerbst, Jr. was charged in a warrant with aiding and abetting John B. Connell in violating the provisions of Section 2913 Title 26 of the Internal Revenue Code, 26 U.S.C.A. § 2913. John B. Connell, Investigator of the Alcohol Tax Unit, testified before the United States Commissioner that in October, 1951, he was sent to Charleston on an undercover assignment to purchase whiskey for evidence; that the defendant J. D. Zerbst, Jr., a county police officer, together with Overstreet, another county police officer, were paid $20 by John B. Connell to convoy him to the city limits of Charleston; that Connell had purchased some whiskey in Berkeley County and met the defendant J. D. Zerbst, Jr. and Overstreet at Mike's Place, where an informer had previously made arrangements for them to stop; that it was at this place that the defendant J. D. Zerbst, Jr. and Overstreet were paid $20 to safely convoy the car of John B. Connell, which had nontaxpaid liquor in it, to the city limits of Charleston. Connell testified that he asked the officers at Mike's Place what would happen if they were caught before they got into the city limits, and the officers stated that they would follow right behind Connell and the informer, and if it appeared that some one was going to stop them, they (Zerbst and Overstreet) would stop them first; that the defendant Zerbst and Overstreet did follow Connell and the informer to the city limits and then turned around and went back on the dual highway.
The first question to be determined is: Does the District Court have the authority to review the action of the United States Commissioner in finding that there was probable cause for holding the defendant for the grand jury?
I think the District Court does have the authority to review the action of the United States Commissioner in finding that there was probable cause in holding the defendant for the grand jury. The United States Commissioner is a ministerial — or, at best, only a quasi judicial — officer and his acts, therefore, are subject to review by the District Court. This question was presented to the court in 1923 in the case of United States v. Casino, D.C., 286 F. 976, 979, in which Judge Learned Hand had this to say:
In the case of In re No. 191 Front Street, Borough of Manhattan, City of New York, 2 Cir., 5 F.2d 282, 286, it was clearly held that the proceedings before the United States Commissioner are subject to review by the District Court. The court said:
* * *"
There is a long line of cases whose holdings are similar to the above. It is true that in none of the cases was the question of discharging a defendant after he was held for the grand jury by the United States Commissioner considered. The questions arose under the validity of a search warrant.
Counsel for the Government and for the defendant in this case have frankly stated that they have been unable to find any case which is directly in point with the one under consideration. I think, however, that the rulings of the court in the various...
To continue reading
Request your trial-
U.S. v. Washington
...purpose either to disobey or to disregard the law") (citation and internal quotation marks omitted).31 See also United States v. Zerbst, 111 F.Supp. 807, 810 (E.D.S.C.1953) ("There can be no accessory without a principal. One cannot be guilty of aiding and abetting in the perpetration of a ......
-
Pugach v. Klein
...presence, his attempted arrest of the Judge for the dependent crime of aiding and abetting was also without basis. United States v. Zerbst, D.C.E.D.S.C.1953, 111 F.Supp. 807; Legatos v. United States, 9 Cir., 1955, 222 F.2d 678, A conspiracy is a felony under federal law, 18 U.S.C.A. §§ 1, ......
-
United States v. King
...Florida, 165 F.Supp. 328, 331 (E.D.Ark.1958); United States v. Vassallo, 282 F.Supp. 928, 929 (E.D.Pa. 1968); United States v. Zerbst, 111 F. Supp. 807, 809, 810 (E.D.S.C.1953). Habeas corpus is, however, available where the accused is arrested in a different district and the magistrate is ......
-
Washington v. Clemmer, 18602.
...274, 279, 128 F.2d 265, 270, 141 A.L.R. 1318 (1942); United States v. Florida, E.D. Ark., 165 F.Supp. 328 (1958); United States v. Zerbst, E.D.S.C., 111 F.Supp. 807 (1953), and cases cited 3 We note that the Manual for United States Commissioners 10 (1948) provides that official court repor......