*1 ap- complaint prejudice, Agency gen- since it Orleans General New pears could no mere amendment agent. Parkerson claim that eral a claim general agency it state orally cure defect have taken on the has granted.” assignment relief face of the written agency a distor- works N.O.G.A. Inc., Crowley’s, also DeLoach v. See disfiguration clear, unequivo- (dictum). Cir. language. cal Parkerson, by an- thus immunized V. tibodies of Frauds and the of the Statute ravages parol rule, survives the then, sum, possible are three plaintiff's complaint.2 might ways be liable which Parkerson orally guar- first, he claim: this Affirmed. obligations. This falls anteed N.O.G.A.’s Frauds. Sec- because Statute
ond, orally per- that he offered to remain
sonally liable as an inducement to Gen- Guaranty assign. liability
eral negated by Third, release. written orally prom- he is liable because general agent.
ised to be the This is a assigns
solecism: contract written general agency to N.O.G.A. are, SEYMOUR, Jr., Appellant, aware of the Lonnie Nelson obligation complaint and to scrutinize the v. might plaintiff it stand if recover to let America, UNITED STATES of any state of facts which could be under Appellee. claim, support proved in with the No. 8787. complaint plaintiff’s fa construed in the Appeals United States Court of Conley Gibson, v. vor. Tenth Circuit. (1957); 99, 2 v. Fowler Co., Telephone Telegraph Bell & Southern Dec. 150; King 5 Cir. F.2d Edward Rehearing Denied Dec. Employees Union Federal Credit Co., Indemnity Travelers Cir. Jacobs, 5 Cir. Kohler v. F.2d 440.
However, is not the sort usually
problem, mod encountered under pleading, complaint ern allege give or fails to notice of complaint plagued
claim. This lacks,
what what it contains. paths plead
ofAll to relief which the
ing suggests allega by the are blocked and the
tions attached documents them selves, without more. What this Court Feinberg Leach,
said in 5 Cir. 64, 68, applies here: * district dismissing
abuse its occasionally tactical, 2. “There is thus if Rules.” Smoot v. State of the Federal Co., voluntarily strategic, party’s risk in a Farm Automobile Insurance Mutual abandoning pleading concept supra, at 528. the notice *2 Davison, Aurora, Colo., for
Harold L. appellant. Spriggs, Denver,
Richard T. Colo. (Lawrence Henry, Atty., M. with U. S. brief), appellee. him for on MURRAH, Judge, Chief Before HICKEY, Judge, BRAT- and TON, Judge. District Judge.
MURRAH, Chief appeal is an from illegal possession conviction government property violation U.S.C. § primary question whether the erroneously sup- trial court refused to press police are that officers
city Colorado, Springs, ob- Colorado tained a search search the Springs residence Colorado and “marihuana other narcotics.” the course of the officers search the found postal basement house 105 money orders, money order dating stamps stamp limitation post Prichard, office at Colorado. money had been Seventeen orders out, filled some and some $100 specifically found The trial court $70. from the evidence that at that time the officers knew the office at Prichard had been The of- money orders, ficers seized the limita- dating stamps stamp office charged appellant subsequently concealing and re- indictment taining possession of articles with intent to convert them to his own use gain knowing they had been stolen the United States. know, Fourth Amend requiring
ment “things particularly describe thing seized” “the seizure of one forbids describing under a another”— left requiring Amendment the search war ‘things 192 rant describe Marron v. be seized’ forbids seizure of one Stanford ‘the thing under a an v. State ; ‘nothing is to be left to the dis 431] other’ — *3 Cir., cretion of A.L.R. the officers the 10 169 warrant.’ Marron United 275 145 S.Ct. affmd. 331 U.S. [67 231]; 192 U.S. 72 [48 The man S.Ct. L.Ed. 91 L.Ed. constitutional 1399]. 41(e), implemented F.R. Stanford v. 379 of] U.S. [State is in notwithstanding But, spec 476 [85 S.Ct. 13 Crim.P. the Cir.], ificity prohibition, Harris v. United States [10 of the constitutional recognized 1413], apparently affm’d 331 the courts have practi exception 91 L.Ed. 1399].” narrow dictated implemented The particular Constitutional mandate calities of a situation where 41(e), F.R.Crim.P., pur is acknowl of a lawful search course edged. execution suant to a lawful arrest or the un of a valid search exception” pressed A "narrow is into covers another uphold service to the seizure in this re these circumstances the officer is not exception case. The in described Harris eyes quired to close his to the realities States, supra, expanded by v. United is may of the He the fruits situation. seize permitting the seizure when the crime or even the instruments was not described in the warrant direct- presumptively that is contraband. which ing search, nor identified with the supra; Harris Porter v. United defendant incident crime for 602; Cir., arrest, which was under nor sub- Eisner, Cir., United States v. ject named in a warrant of arrest Correa, Matthews v. the time the seizure was made. F.2d 534. While mere of the language, The uses the “[h]e seized articles not in and of itself may [the officer] seize the fruits criminal, pos under these circumstances the instruments of the crime or even that gen session was sufficient presumptively is contraband.” believing erate cause for that authority The for this conclusion is Har- the articles were hence sub States, supra. ris v. United An examina- ject to seizure. tion the cases cited under significant, think, It we specific provision, “the fruits knew that property”, crime such as stolen reveals Prichard office had been language relates readily The seized articles identifi were to the fruits of the crime such as stolen government able with the office as property that are incident to the lawful property. They presumptive fruits or law- presence of the crime and their in ful search warrant. The Harris case cogent basement of home was upon a valid evidence of his identification with the warrant, justified upon it danger always offense. While there is pres- commission of a crime in the stealthy prohibi encroachments on the ence of the law enforcement officers. against searches, unreasonable we being “A crime was thus committed in think this case falls well within the ra very presence agents conduct- States, supra. tionale Harris v. United ing Nothing the search. in the decisions The is affirmed. give support of this sugges- circumstances, tion that under such Judge (dissenting): HICKEY, Circuit impotent- law-enforcement officials must recognizes ly majority opinion stand “that seizing aside refrain the Fourth such contraband material.” says, 67 66 ‘unexplained possession’ in rule is rule” substance a circumstantial evidence property in fact basis if this as the to a crime was not incident instance circumstances under very being presence committed generate prob- session was agents sufficient conducting the search of the emphasized. cause, keep mind able admits, well “mere are limitations to the seized articles was “(a) They plained possession rule. are: Therefore, its in and itself criminal”. unexplained be must presence of the home in the basement any (b) origin, innocent continuing crime in be a fairly recent; (c) must presence officer. Wig- session must be IX exclusive.” continues, “under cir- The court *4 Evidence, (3rd more, ed. § possession suf- was cumstances 1940). (1) indicate uncontro- generate probable to cause be- ficient verted evidence that was lieving articles that the origin; (2) of innocent that the date subject to to seizure.” hence recognize robbery of the Post ar- Office when the articles in- acquired September ticles were to a cident lawful lawful July date of seizure was arrest, or a search warrant lawful elapsed 1965. Nine months from the upon probable issued cause robbery date of articles to seized. hardly seizure. This can recent called significant 41(c) It is note that possession. rule general regard The recent rule with reiterates the a accepted issuance and contents of 10th is well judge “If the or commissioner stated in Garrison v. grounds applica- satisfied for the 95 and forth: “It is well sets probable exist or cause proof settled that from the they exist, shall to believe that issue recently motor ve- session of stolen * * identifying *.” hicle, unless such is satisfac- Further, application that the affidavit or torily explained, jury may properly grounds probable “shall state possessor infer car knew the *.” cause issuance transported in- was stolen when he it in proscription In the face of the commerce, omitted].” [citations terstate Supreme the United expand would be left to the discretion magistrate who warrant”, discretion vested in of the officer prescribed under issues the warrant as officer exercised his discretion 41(e); (1) additional probable to include to the existence of Mar cause. executing the ron v. United by permitting 74, 76; him to a de- make of Tex Stanford v. State termination of cause; existence of as, (2) “unexplained use rule”, applied session tool affm’d evidence, admission circumstantial making him in assist the determination. permits property, The court here “unexplained possession” If the rule recent, is not the use of the illegal plained, se, per seized words, circumstances”, “under these an law- neither incident to a posses- “unexplained examination of the ful arrest nor a lawful rule sion” is in order. search warrant. dissenting Mr. Justice Black in Bolle I nback United would reverse and remand.