Voorhies v. United States

• Decision Date: 02 May 1924
• Docket Number: 4285.
• Citation: 299 F. 275
• Parties: VOORHIES v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Fifth Circuit

299 F. 275

VOORHIES v. UNITED STATES et al.

No. 4285.

United States Court of Appeals, Fifth Circuit.

May 2, 1924

John E Jackson, of New Orleans, La., for plaintiff in error and appellant.

L. H Burns, U.S. Atty, and Edwin H. Grace, Sp. Asst. U.S. Atty both of New Orleans, La., for defendants in error and appellees.

Before WALKER and BRYAN, Circuit Judges, and GRUBB, District Judge.

BRYAN Circuit Judge.

The plaintiff in error filed a petition, praying that a search warrant under which his home was searched be quashed, and that a quantity of intoxicating liquor which was seized thereunder be returned to him. The search warrant was defective, in that it was not supported by a charge that the dwelling was being used for the unlawful sale of liquor. Section 25, National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2m). The District Court quashed the warrant, but refused to order the return of the liquor, which is described in the petition as 9 cases and 35 bottles of 'home brew' beer, 333 sacks, 18 cases, and 169 quarts of assorted liquors, and 129 gallons of alcohol, besides a half pint of caramel coloring, 2 glass funnels, and a patent corker. The plaintiff in error does not allege that he was the owner of the liquor; but nevertheless he assigns error upon the refusal of the court to order that it be returned to him, and contends that his rights under the Fourth and Fifth Amendments to the Constitution have been violated.

The government moves to dismiss the writ of error on the ground that the judgment of the District Court is not final. So far as the record before us discloses, this is an independent action, and is not incidental to a criminal prosecution or other original proceeding. The motion to dismiss is therefore denied. The cases relied on by the plaintiff in error are Boyd v. United States, 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. 319; Gouled v. United States, 255 U.S. 298, 41 Sup.Ct. 261, 65 L.Ed. 647, and Amos v. United States, 255 U.S. 313, 41 Sup.Ct. 266, 65 L.Ed. 654.

We are of opinion that none of these cases sustains the assignment of error. All except the one last cited deal with the seizure of private books and papers. In the Boyd Case a clear distinction is made between such a seizure and the seizure of stolen or forfeited goods, or things which it is unlawful for a person to have in his possession, such as counterfeit coins, lottery tickets, and gambling implements. Liquor illegally possessed is not to be treated as are articles which may be lawfully possessed. It is true that there may be lawful possession of liquor, but the burden is upon him who claims that his possession is lawful. Section 33, National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2t). The petition in this case is almost a confession that plaintiff in error's possession was unlawful. The Amos Case has to do with removing and concealing whisky on which the internal revenue tax had not been paid, apparently in violation of R.S. Sec. 3296 (Comp. St. Sec. 6038), at a time when...