65 F.2d 920 | 6th Cir. | 1933
The appeal involves validity of searches made by prohibition officers without warrant, the first of the appellant’s automobile and the second of his dwelling. Agents of the Prohibition Department had on a date prior to the search observed appellant unloading what appeared to be bags of corn sugar from his automobile. They had followed the car from a known com sugar supply house. They noted a strong odor of whisky mash about the premises where the sugar was unloaded. Three days later other agents approached the premises. They also noted the odor of whisky mash, and observed appellant carrying a can from the house to the ear parked on the driveway in the rear. Crawling over a fence, they approached the appellant and asked him what he had, stating they wanted some whisky. Appellant replied, “I don’t know you fellows.” One of the agents pulled the can out of the ear, found it to contain whisky, and placed the appellant under arrest.
Following the arrest, the agents searched the dwelling house, gaining access by keys found on appellant’s person. On the second floor they discovered a still, whisky, and empty cans. In the attic were found mash, corn sugar, barrels, and yeast. Appellant was in- . dieted on three counts, charging (1) possession, (2) manufacture, (3) maintaining ;a nuisance. A motion to suppress the evidence was overruled, and conviction on all three counts followed. A general sentence of fine and imprisonment was imposed.
The search of the automobile was not unreasonable. The officers had probable cause to believe the law was being violated. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Husty v. United States, 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed. 629, 74 A. L. R. 1407. The search of the house was illegal. It was
The sentence imposed up«n appellant was general, and since it provides for both fine and imprisonment, and cannot therefore be sustained by conviction on the possession count alone, even though possession is therein charged as a second offense, we direct the following disposition of the case:
The judgment below on count 1 is affirmed, but the sentence is set aside, and as to it the cause is remanded for resentenee. The judgments on counts 2 and 3 are reversed, and as to them the cause is remanded for new trial, it being assumed that, if there is no evidence of guilt other than that disclosed by the invalid search, the two counts will on motion he dismissed.