Vachina v. United States

• Decision Date: 07 August 1922
• Docket Number: 3722.
• Parties: VACHINA v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F. 35

VACHINA v. UNITED STATES.

No. 3722.

United States Court of Appeals, Ninth Circuit.

August 7, 1922

M. B Moore, of Reno, Nev., for plaintiff in error.

Wm Woodburn, U.S. Atty., and M. A. Diskin, Asst. U.S. Atty both of Reno, Nev.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff in error was convicted of violation of the National Prohibition Act (41 Stat. 305). His contention is that the intoxicating liquor which was found at his place of business and which was admitted in evidence against him, was obtained by means of a search warrant, and that the search warrant was void for want of a sufficient affidavit. The affidavit for the warrant was made by a prohibition enforcement agent. After describing the premises of the plaintiff in error, which were said to consist of a soft drink establishment known as the 'Alpine Winery,' the affiant deposed:

'That the facts, circumstances, and conditions of which affiant has knowledge, and as ascertained by affiant are as follows, to wit: Direct information by a certain citizen of Reno, whom affiant has known for many years, and whom he considers absolutely credible and reliable, but whose name cannot be stated in this affidavit, that on the 24th day of December, 1920, informant and a friend purchased alcoholic liquors from the proprietor of said Alpine Winery, said liquor being served and sold from the back room (kitchen) of said soft drink establishment. Said information was given affiant under oath.'

On the trial a bottle of brandy and a demijohn containing wine were admitted in evidence. The prohibition enforcement agents testified that the place of business of the plaintiff in error consisted of a soft drink barroom, adjoining which was a large dining room, in the rear of which was a kitchen. That on December 29, 1920, they entered the kitchen, and while one of them handed to the plaintiff in error a search warrant the other discovered and took possession of a bottle and a demijohn, which were in plain sight on the floor beneath a table. There was proof that the bottle contained brandy and the demijohn contained wine, the alcoholic strength of which was more than 1 per cent., and that they were fit for beverage. We do not deem it necessary to enter into a discussion of the question whether or not the affidavit was sufficient to justify the issuance of a search warrant. While the officers on entering...