69 F.2d 258 | 5th Cir. | 1934
In the first count of the indictment Royal Clark was charged with unlawfully transporting intoxicating liquor. Dewey Clark and William Perry were charged in the second count with assisting in such transportation, and in the third count, in violation of 18 US CA § 121, with resisting and interfering with two customs patrol inspectors who were in pursuit of Royal Clark for the purpose of arresting him. Perry was acquitted. Boyal and Dewey Clark were convicted as charged in the indictment; the latter’s sentence being general and less than could have been imposed under the third count. They appeal and assign as error (1) the admission of testimony given by the inspectors to the effect that they seized and removed liquor from an automobile in possession of Royal Clark; and (2) a charge by the court to the jury to convict both appellants if they believed beyond a reasonable doubt the testimony of the inspectors to be true.
The customs patrol inspectors upon whose testimony the government relied were’Groves and Barr. According to that testimony, while they were traveling in an automobile driven by Groves, on a narrow sandy road, they met Royal Clark, driving a Ford car and just behind him his brother Dewey Clark, who* ae- - companied by Perry, was driving a Plymouth car. As the inspectors passed the Ford, they both saw in it several exposed burlap sacks which had the usual appearance of sacks containing imported liquor. As soon as they could, after meeting and passing the two cars going in the opposite direction, -they turned around, with the intention of seizing the liquor in the Ford and arresting Royal Clark, but between them and him was Dewey Clark in the Plymouth. They overtook the Plymouth, and upon their signal Dewey stopped. They acquainted him with the fact that they were officers and wanted to pass, but Dewey, claiming the road was too narrow, drove slowly on for several miles until they came to a state highway, and then, although there was plenty of room for them
As the convictions on the first and second counts for transporting liquor are set at naught by the repeal of the Eighteenth Amendment, United States v. Chambers, 54 S. Ct. 434, 78 L. Ed.--, we are.concerned only with the conviction of Dewey Clark on the third count, to which may be referred the general sentence imposed upon him.
The inspectors were positive in their testimony that they saw and recognized sacks of liquor while they were being transported by Royal Clark in the Ford car. If they were telling the truth, an offense was being committed in their presence, and the search which they subsequently made was not an unreasonable one; and they therefore had no need of a search warrant. The charge of the court is not subject to the criticism that it was an unqualified direction to the jury to find a verdict of guilty. The concluding part complained of must be interpreted in the light of what preceded it. It authorized a verdict of guilty only if Dewey Clark intentionally obstructed the road or highway, and thereby interfered with the inspectors and prevented them for the time being from making a lawful arrest. That interference could not possibly have been unintentional, particularly after the state highway was reached, whatever may be said about the inconvenience or impossibility of turning an automobile out of the way of another on the narrow road. Under these circumstances, the concluding part of the court’s charge does not constitute reversible error.
The convictions of Royal Clark on the first count and of Dewey Clark on the second count are reversed and annulled. The general judgment imposed upon Dewey Clark is affirmed.
