299 F. 948 | 7th Cir. | 1924
Defendants are charged with having resisted and opposed certain prohibition agents who were attempting to serve a search warrant.
The information is attacked because it does not appear that the prohibition agents were such “officers” as were authorized to serve search warrants. This contention is based upon the assertion that the officer to whom the search warrant runs must be a “civil ,officer,” and to be a “civil officer.” nomination by the President and confirmation by the United States Senate, etc., must have occurred. We are of the opinion that the prohibition agents to whom the writ was directed were “civil officers,” as that term is used in the search warrant statute (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496J4f). United States v. American Brewing Co. (D. C.) 296 Fed. 772; United States v. Syrek (D. C.) 290 Fed. 820; United States v. O’Conner (D. C.) 294 Fed. 584; United States v. Daison (D. C.) 288 Fed. 199; United States v. Edwards (D. C.) 296 Fed. 512.
The information is also attacked because the search warrant upon which the offense is based is not set forth hsec verba. This was
The indictment clearly informed the defendants that they were charged with having, on a specified date and at a certain place, willfully and unlawfully obstructed, resisted and opposed certain prohibition agents who were serving a search warrant issued by a commissioner for the Eastern district of Illinois. Defendants, therefore, knew the precise nature of the offense charged, and were enabled to prepare fully any defense that existed. They are likewise enabled to plead a conviction therefor as against any subsequent prosecution. We conclude, therefore, that the indictment was sufficient.
The alleged insufficiency of the proof to support the conviction presents a different question. An examination of the record shows that the search warrant, the execution of which it is claimed defendants resisted, was not offered in evidence. The commissioner testified that he issued a search warrant, and the prohibition agents testified that they had it in their possession when they met with the resistance. The proper foundation for the introduction of secondary evidence as to its contents was not laid, 'however, and there was no evidence as to its contents save only the presumptions that arose from its issuance.
There was, moreover, an utter absence of evidence showing or tending to show that any affidavit, by one qualified to speak was ever made. Upon this affidavit the validity of the warrant was solely dependent. The gist of the action is resistance to one serving a search warrant. There can be no unlawful resistance, unless there be a valid search warrant, and there can be no valid search warrant unless a proper showing is made to the cóurt or commissioner disclosing facts which bring the petitioner within the statute. United States v. Veeder (C. C. A.) 252 Fed. 414; Jozwich v. United States (C. C. A.) 288 Fed. 831. This necessary evidence may be best furnished by the documents (the search warrant and affidavit); but, if they be lost or destroyed, secondary evidence may be received. But a proper foundation for such evidence must first be laid, and then the contents of the lost or destroyed document given. If the warrant be presented, it may contain such recitals as will greatly strengthen the presumption of regularity.
In the present case there was no evidence of any affidavit or statement upon which the warrant alone could be lawfully issued. There was no proof of the contents or the recitals of the warrant, and therefore there was a failure to establish the existence of a valid search warrant.
The judgment is reversed, and a new trial is ordered.
