Walker v. United States
Decision Date | 29 August 1935 |
Docket Number | No. 10216.,10216. |
Citation | 79 F.2d 269 |
Parties | WALKER et ux. v. UNITED STATES. |
Court | U.S. Court of Appeals — Eighth Circuit |
W. N. Ivie, of Rogers, Ark., for appellants.
Duke Frederick, Asst. U. S. Atty., of Ft. Smith, Ark. (Clinton R. Barry, U. S. Atty., and John E. Harris, Asst. U. S. Atty., both of Ft. Smith, Ark., on the brief), for the United States.
Before STONE and FARIS, Circuit Judges.
Mr. and Mrs. George Walker bring this joint appeal from convictions for possession of unstamped liquor in violation of section 201 of the Act of January 11, 1934 (USCA title 26, § 267, 48 Stat. 316).
Appellants present three matters as follows: (1) Claimed error in denying suppression of certain evidence asserted to have been procured through illegal search and seizure; (2) claimed insufficiency of the indictment; (3) claimed insufficiency of the evidence.
The evidence sought to be suppressed consisted of a gallon glass jug and two pint glass bottles, all filled with whisky and none bearing revenue stamps. This evidence was secured in the manner following. Six officers, who were either state or city of Siloam Springs police officials, went one night to the residence of appellants in the outskirts of the city of Siloam Springs to search for contraband liquor held in violation of the state statutes and the city ordinances. They had a search warrant. Previous raids had been made upon this place resulting in destruction by appellants of liquor, which was thrown by the occupants out of a high rear window onto rocks twelve or fifteen feet below, before the officers could gain entrance to the house. On this occasion, four of the officers held a large tarpaulin above the rocks and, while the others were breaking in the front door that had been barred at their approach, caught therein the jug and two bottles thrown out of the window by Mrs. Walker. As soon as the officers broke in the front door, one of them partially read the warrant to her and offered it to her to read, which she refused to do. Thereafter, they searched the house finding some empty bottles, empty glass jugs, and a hose siphon — none of which are involved in this issue of suppression.
Just why this search and seizure were illegal is not clearly stated.1
If counsel do not know why the search was illegal, it cannot be expected that this court will supply that deficiency. If the point is that the evidence was procured before the warrant had been read, it is, in the situation here, obviously frivolous. If the point is that the warrant was illegal, there is no word in the record to sustain such. Concededly, no federal official had any part in the transaction, or, so far as the record shows, even knew of the matter until afterwards.
The material part of the count upon which the conviction was had is as follows: "That the said George Walker and Mrs. George Walker on the 21st day of June, in the year 1934, in the Fort Smith Division of said district, and within the jurisdiction of said Court, and in the City of Siloam Springs, Benton County, Arkansas, did unlawfully and feloniously have in their possession certain distilled spirits, to-wit, one gallon and one quart of whiskey, contained in a one gallon glass jug and in two glass pint bottles, on which immediate containers no stamps were affixed denoting the quantity of distilled spirits contained therein and evidencing payment of all internal revenue taxes imposed by the United States on such distilled spirits so contained in such immediate containers as aforesaid."
This count was based on the above section 201 (26 USCA § 267) which is:
Insufficiency of the above count is based on the failure to negative therein the exceptions set out in the second sentence of the above-quoted section. The governing rule of law has been clearly stated in United States v. Cook, 17 Wall. (84 U. S.) 168, 21 L. Ed. 538, and McKelvey v. United States, 260 U. S. 353, 43 S. Ct. 132, 67 L. Ed. 301, as follows: "If the exception is so incorporated with the clause describing the offence that it becomes in fact a part of the description, then it cannot be omitted in the pleading, but if it is not so incorporated with the clause defining the offence as to become a material part of the definition of the offence, then it is matter of defence and must be shown by the other party, though it be in the same section or even in the succeeding sentence" (Cook Case, 17 Wall. 168, at page 176, 21 L. Ed. 538); and "By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a provisio or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it" McKelvey Case, 260 U. S. 353, at page 357, 43 S. Ct. 132, 134, 67 L. Ed. 301.2 Measuring section 201 by these announcements of the rule, it is clear that the first sentence of the section is a general provision completely defining the elements of the offenses covered thereby, and that the exceptions in the second sentence are neither physically nor logically so incorporated with the subject-matter of the first sentence as to become in fact a part of the description of the offense in that sentence.
Appellants occupied and had dominion over this small residence. Therein were the jug and two bottles of whisky, a number of empty bottles and glass jugs and a...
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