8 F.2d 219 | 9th Cir. | 1925
The plaintiffs in error, together with Lillian Gay, were charged under an indictment in count I with the unlawful possession of 372 bottles of whisky. Count II charged that Edward Gay had thei’etofore been convicted of tho offense of unlawful possession of intoxicating liquor. Count III charged that all the
The facts are briefly these: O’Harra, a prohibition agent, observed two automobiles driving together. In each ear he saw intoxicating liquor. He got into his automobile and followed them. He saw the foremost of the automobiles drive into a garage. He pursued the other automobile, which was driven by the defendant Bennett, but lost sight of it. He returned to the garage into which the first automobile had gone, and he found that Bennett’s ear was in the garage. He obtained a search warrant and on the premises he apprehended the defendant Bennett, who was attempting to escape. He heard a noise in the brush of one running in a different direction. He seized 372 bottles of liquor, which were in the two ears in the garage.
The denial of Edward Gay’s- motion for an instructed verdict in his favor is assigned as error, and it is urged that there was no evidence to go to the jury to sustain any charge against him. There was undisputed evidence that Edward Gay was the owner of the first automobile which was driven into the garage. He was not identified, nor was any plerson identified as the driver of that ear. It was shown by the defendant’s own documentary evidence that he was the lessee of the premises on which the garage stood. A prohibition agent testified that, on entering the premises with the search warrant, he asked Lillian Gay why they were in the bootlegging business, and said, “It seems to me you would not do that,” and that she said, “Mr. O’Harra, I was -raised in a saloon; my father ran a saloon over'in London; it is absolutely nothing to us; we don’t think anything about it at all.” To his question whether they were operating with the Olmstead gang, she said, “No; we are operating independent of the Olmstead gang.” No objection was taken to the admission of this testimony, but the court instructed the jury that it was to be considered onjLy in connection with the charge against Lillian Gay. We eannot agree that it constituted all the evidence to identify Edward Gay with the offense charged, or that proof of the corpus delicti rests wholly upon Mrs. Gay’s statements. -That an offense was -committed by some one in the use of Edward Gay’s automobile is undisputed. It is also undisputed that at a time subsequent to the seizure of his automobile he approached O’Harra and made inquiry as to his right to take his ear out on bond, and his right to surrender the same to avoid forfeiting the bond. He made no claim that the ear was not legally subject to seizure. He also made admissions to O’Harra to the effect that at the time of the seizure he resided on the premises from which the liquors were taken. We are not convinced that the evidence was insufficient to go to the jury to connect him with the offense which was charged.
It is urged that the search warrant was void for misdescription of the premises to be searched. They were described as 812-814 Hillside Drive, whereas the defendants offered evidence to show that its proper description was 812-814 Thirty-Eighth Avenue North. There was undisputed evidence, however, that the unfrequented and obscure and almost uninhabited street on which the premises were situated was marked by a’ signpóst, Hillside Drive. But we deem it immaterial whether there was a valid search warrant, for clearly, under the circumstances, no search warrant was necessary, The garage .was a detaehed building, separated three or four feet from the residence, and unconnected therewith. The prohibition agent O’Harra had the evidence of his senses that two automobiles laden with liquor had just been driven into the garage. On the same day he entered the garage and seized the liquor which tvas still in the automobiles and arrested one of the defendants. The search and seizure were not unreasonable. Lambert v. United States (C. C. A.) 282 P. 413; Vachina v. United States (C. C. A.) 283 F. 35; Earl v. United States (C. C. A.) 4 P.(2d) 532; Agnello v. United States (C. C. A.) 290 F. 671, 679. Although the dwelling house‘was improperly entered under the search warrant, error cannot be predicated thereon, for no liquor was found in the dwelling house, nor was evidence obtained therein tending to connect any of the defendants with the commission of the offenses charged.
Error is assigned to the court’s refusal to take the case from the jury on the ground that counsel for the government, addressing the' jury, and “turning to the defendant,” said: “If that is not his whisky, why hasn’t he explained it?” Timely ob
We find no error. The judgment is affirmed.
