Vecchio v. United States

• Decision Date: 27 October 1931
• Docket Number: No. 9155-9158.,9155-9158.
• Citation: 53 F.2d 628
• Parties: VECCHIO v. UNITED STATES (four cases).
• Court: U.S. Court of Appeals — Eighth Circuit

53 F.2d 628 (1931)

VECCHIO v. UNITED STATES (four cases).

Nos. 9155-9158.

Circuit Court of Appeals, Eighth Circuit.

October 27, 1931.

Paul J. Garrotto, of Omaha, Neb. (Wear, Moriarty, Garrotto & Boland, of Omaha, Neb., on the brief), for appellants.

Edson Smith, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb., and Lawrence I. Shaw, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Before KENYON and GARDNER, Circuit Judges, and REEVES, District Judge.

KENYON, Circuit Judge.

Appellants are husband and wife. For convenience they will be designated as defendants. An indictment in two counts was returned against them in the District Court of the United States, Omaha Division, District of Nebraska, on February 11, 1930, charging them in the first count with unlawfully selling intoxicating liquor, and in the second with unlawfully having intoxicating liquor in their possession. May 24, 1930, another indictment in four counts was returned in the same court against them charging unlawful sales and possession of intoxicating liquors. Motions to quash both indictments and suppress certain evidence claimed to have been illegally secured and used were overruled. The two cases were consolidated for trial and the jury as to both cases found both defendants guilty on each and every count. The sentences under the two indictments as to each of the defendants were to be served concurrently. Defendant Mary Louise Vecchio was placed on probation, but the probation was subsequently annulled because of her violation of the provisions thereof.

We may group the questions presented on appeal as follows: (a) Claimed error in the introduction of certain evidence secured under a search warrant; (b) error in admitting certain evidence obtained without a search warrant from defendants' dwelling house; (c) prejudicial instructions of the trial court.

The question whether the search warrant was illegal is raised as to the first indictment. This search warrant was issued by Mary A. Mullen, United States Commissioner, upon the request and affidavit of one William O'Connor, which recited that the National Prohibition Act was being violated at a certain place, described as a one-story frame and basement residence building, with yard and outbuildings wherein and whereon there was being kept for sale and sold intoxicating liquor, and that said building was located at 1213 South Seventh street (Parkwilde avenue), Omaha, Neb.; that he there purchased from a woman whose name was unknown to him four quarts of beer which contained more than one-half of one per cent. of alcohol by volume and was fit for beverage purposes; also one-half pint of whisky, for which he paid $1.75. The Commissioner found there was probable cause to believe that the grounds set forth in the application and affidavit existed and that the law was being violated as charged, and issued a search warrant under which the officers proceeded on November 6, 1929, to search the premises described in the search warrant, which it seems was defendants' home. Mr. Irwin, who was a Federal Prohibition Agent, executed the search warrant, accompanied by Mr. Zersan, another Prohibition Agent. He testified at the trial to the search under the warrant and the securing of six gallons of whisky, a gallon of wine and some ninety quarts of beer. These were turned over to the chemist in the Prohibition Department, and he testified as to the alcoholic content of all this liquor, some of which contained 43.3 per cent. alcohol by volume, and was fit for beverage purposes. Mr. Zersan, Federal Prohibition Agent, testified also as to the alcoholic content of the liquors and their fitness for beverage purposes. The motion to suppress the evidence secured in the search was based on the claim that the affidavit of O'Connor did not contain a sufficient showing that probable cause existed for the issuance of the search warrant, that the statements of the affidavit were mere conclusions and were not statements of facts known to O'Connor. The court had a hearing upon the motion and denied the same.

Section 613, title 18, USCA, provides as follows: "A search warrant can not be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched."

Sections 614 and 615 are as follows:

Sec. 614. "The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them."

Sec. 615. "The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist."

Section 39, title 27, USCA, provides in part: "No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house."

O'Connor testified in the trial that on November 1, 1929, he went to the residence described in the affidavit and got four large bottles and a small bottle supposed to be whisky from a lady; that he was satisfied the lady sitting at the table in the courtroom, Mrs. Vecchio, was the lady; that when he went out with the bottles of beer and the pint of whisky which he had secured from her, two federal men took them away from him, and on cross-examination he stated that at the time he made his affidavit he was not sure "that this was the woman that sold it to me. In my own mind I was satisfied, but still there was a doubt there." And on redirect he testified that in his own mind he was satisfied that the defendant Mrs. Vecchio was the woman.

The government denies the right of defendants to question, six months after the motion to suppress was heard and overruled, the truth of the facts stated in the affidavit and to controvert the same, claiming the procedure, if it is desired to controvert the grounds of a search warrant, must be under section 625, title 18, USCA. Passing this question and assuming that defendants were entitled to controvert the facts of the affidavit at the trial the effort was not a success. There was ample stated in the affidavit to warrant the issuance of the search warrant, and the evidence at the trial tended to corroborate the affidavit. O'Connor asked for and paid for the whisky and received a bottle in response to his request, which was presumably what he ordered and paid for. Lewinsohn v. United States (C. C. A.) 278 F. 421. It is apparent that O'Connor was familiar with beer and whisky, and competent to express an opinion as to the alcoholic content of the liquors purchased by him and its fitness for beverage purposes. Albert v. United States (C. C. A.) 281 F. 511; Benson v. United States (C. C. A.) 10 F.(2d) 309.

Defendants rely on Siden v. United States, 9 F.(2d) 241, a decision of this court. We do not see the applicability of that case to this situation. The court there held that where facts on which the magistrate's conclusion of probable cause for issuance of a search warrant was based were not stated in affidavits, depositions, or testimony on which such a conclusion could properly be based, that the search warrant was wrongfully issued. Here the facts were stated showing probable cause. The place to be searched was specifically...