294 F. 148 | 9th Cir. | 1923
The plaintiffs in error were convicted on six counts of an indictment. The first three counts charged them with a conspiracy to possess moonshine whisky for sale, to sell moonshine whisky, and to manufacture moonshine whisky. The fourth
!‘Wben there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments' the whole may be joined in one indictment in separate counts.”
There can be no question here but that the counts of the indictment all related to the same acts and transactions, all depending on substantially the same proof, and were properly joined, Pointer v. United States, 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208; Sidebotham v. United States, 253 Fed. 418, 165 C. C. A. 159; Ader v. United States (C. C. A.) 284 Fed. 13, 24, and cases there cited. A motion to quash is addressed to t.he discretion of the trial court, and its denial will not be reviewed in an appellate court. Andrews et al. v. United States, 224 Fed. 418, 139 C. C. A. 646.
It is a,rgued that one cannot be convicted under both the Prohibition Act and the revenue laws for the same act, and United States v. Stafoff, 260 U. S. 477, 43 Sup. Ct. 197, 67 L. Ed. 358, is cited. That decision has no relation to any question in the present case. This is not a case in which convictions have been had both under the Prohibition Act and the revenue laws for the same act.
Error is assigned to the admission in evidence of certain intoxicating liquor and other articles obtained by government officers upon a search of the rooms occupied by the defendant Sorenson and his wife in the Vernon Hotel. Prior to the indictment a search of the hotel had been made under a search warrant, whereupon an information had been filed against the Sorensons in the court below, charging them with the possession of intoxicating liquor. The Sorensons filed in that court a petition, supported by affidavits, for the return of the seized property. On an order to show cause, the prohibition director appeared and demurred to the petition and to the affidavits in support of it. The court denied the petition without prejudice. When the Sorensons were indicted in the case at bar, it was stipulated that the record on the petition and the proceedings thereon had been made a part of the record in the present case. .Tt is now contended that the trial court erred in permitting the introduction of the evidence so obtained on the search warrant.
Upon the hearing of the Sorensons’ petition, the court confined discussion to the question whether upon the petition and the affidavits the rooms occupied by the Sorensons in the Vernon Hotel were used by them exclusively as their residence, so as to constitute the same a private dwelling, within the meaning of the National Prohibition Act. The court was not satisfied that the showing made by the affidavits was sufficient, and during the trial of the case now under review the court excused the jury and offered the Sorensons an opportunity to be heard upon their own sworn testimony as to the situation at the Vernon Hotel. The opportunity was declined. The evidence on the trial tended to prove that the premises were used by the Sorensons for a double purpose; that they were used as a rooming house and also as a place lor carrying on an unlawful traffic in intoxicating liquor.
It is urged that the affidavit for the search warrant was fatally defective, but the plaintiffs in error failed to preserve in the court below the right to challenge the sufficiency of the warrant or the affidavit on which it was issued. They rested their objection wholly upon the affidavits which were made in support of the petition for the restoration of the property that had been taken under the search warrant. They objected to the admission of testimony concerning what was found at the Vernon Hotel, on the ground that proper 'foundation had not been laid by showing authority to make the search. That objection was met by the government by introducing in evidence the search warrant and the related papers, and those papers were admitted without objection and were read to the jury. Inquiry into the situation at the Vernon Hotel did not close with the affidavits and the showing made on the petition. The question of the purposes for which the premises were used was still open for investigation on the trial of the present case in the court below.
Nor was it error to permit the prosecution to cross-examine the defendant Griffith, the chief of police, concerning Iris knowledge of the reputation of his codefendant Goodfriend in the matter of gambling. Griffith had admitted that on various occasions he had gone to Goodfriend’s office. On cross-examination he was asked why he did not require Goodfriend to come to his office rather than obey the latter’s bidding, and in that connection he was asked:
“And you knew lie was gambling in tbis town in violation of tbe law, did you not?”
The purpose of the evidence was to connect the chief of police with the conspiracy, and we think it had some tendency to do so, and that to admit it was not reversible error.
There are other assignments of alleged error in the admission of testimony and rejection of offered testimony. We find error in none ■of them.
The judgment is affirmed.
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other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes