This is a writ of error to review a judgment of conviction under counts 1, 3, and 4 of an information charging the unlawful possession of intoxicating liquor, the unlawful possession of property designed for the manufacture of intoxicating liquor, and the unlawful manufacture of intoxicating liquor.
In support of the first count the government, offered testimony tending to prove that two prohibition agents and the sheriff of the county visited the dwelling house of the plaintiffs in error on the early morning of December 28, 1925. As the officers approached the dwelling, they observed Amos Parris, one of the plaintiffs in error, standing in the doorway in his nightwear. Parris watched the officers approaching for a time, and then closed the door quickly and ran back into the house, and out onto a porch at the rear. He there grabbed something quickly and started back through the house, and the officers heard a breaking on the inside. The officers then entered the house, some of them, at least, without permission or invitation, and one of them informed Parris that he was a federal agent and that they came there to look over or search the house. To this Parris replied: “All right. You will find nothing here now” — or words to that effect. Nothing further was in fact found, unless it be said that the officers later discovered that a broken jug, already found in the house, had contained moonshine whisky.
*640 In support of the third and fourth counts the government offered testimony tending to prove that the plaintiffs in error operated a still on what is known as the Hill ranch, some 20-odd miles from the dwelling referred to in the foregoing testimony. That they so maintained the still and manufactured intoxicating liquor there was testified to by Hill, the owner of the ranch, and by his minor son. There was no testimony to the contrary, nor is it claimed that any error was committed at the trial, in so far as the third and fourth counts are concerned. It is earnestly insisted, however, that the testimony offered in support of the first count was obtained through an unlawful search and seizure, and that the improper admission of this testimony vitiated the entire trial. That the officers were trespassers in'the first instance does not admit of question, and We are far from convinced that the consent upon which they rely was sufficient to authorize a search, which was otherwise clearly prohibited by law. The officers approached and entered the dwelling, disclosed their official character, and stated that they came there to make a search. It is very plain from this that the search was not made because of the consent, but would have been made at all events.
In Amos v. United States,
“The contention that the constitutional rights of defendant were waived when his wife admitted to his home the government officers, who came, without warrant, demanding admission to make search of it under government authority, cannot be entertained. We need not consider whether it is possible for a wife, in the absence of her husband, thus to waive his constitutional rights, for it is perfectly clear that under the implied coercion here presented, no such waiver was intended or effected.”
In United States v. Slusser (D. C.)
“The search so permitted by Slusser, after declaration by the prohibition officer, with a display of his badge; that they were there to search the premises, was not by such consent as will amount to a waiver of constitutional rights, but, on the contrary, is to be attributed to a peaceful submission to officers of the law.”
See, also, United States v. Kelih (D. C.)
Generally speaking, an error committed on the trial as to one count of an indictment or information will not necessitate a reversal as to other counts, even though the error consists in the admission of improper testimony. Putnam v. United States,
The judgment should therefore be affirmed; and it is so ordered.