On the 30th of March, 1922, the defendant Hawkins rented the upstairs flat at 1249 Polk street, San Francisco. He used the premises for the sale of intoxicating liquors, and on the 26th of July, 1923, the defendant Walter Brand succeeded to the business. The jury must have found from the evidence that Brand conducted the place until the latter part of October, 1923, on his own account, and that he then turned the business over to the defendant Marrón. The evidence indicates that Marrón operated the place as a saloon from about November 1, 1923, to October 3, 1924; that the defendants Birdsall and Mahoney were in charge from day to day serving drinks to those who came.
The defendant Gorham was a sergeant of police and the defendant Kissane a police officer. The government’s contention is that they became parties to the conspiracy by the corrupt receipt of money and by securing the other defendants against interference by the police.
Brand operated under the Hawkins lease, but on the 2d of November, 1923, a new lease was executed to the defendant Marron, which remained in effect at least as late as October 3, 1924.
On the 22d of September, 1924, a prohibition agent purchased drinks at this place.' An affidavit to this effect was filed with a United States commissioner, who issued a search warrant. The validity of this warrant is not attacked. It directed the search of the entire second floor at 1249 Polk street, including lockers, closets, and cupboards. This warrant was issued October 1, 1924, and executed on. the following day. The officers found the defendant Birdsall in charge. The search disclosed a considerable quantity of liquor which was seized and found to contain more than one-half of 1 per cent, of alcohol. Birdsall was arrested. The officers found in a closet in the front room 16 pint bottles of champagne and a gray ledger, which they also seized. The evidence showed that from page 34 on the great bulk of the writing in this ledger was that of the defendant Marrón. The ledger purported to be a record of the business earried on at 1249 Polk street. It showed the gross receipts and expenses from day to day, also an inventory of the liquors on hand on certain dates. The expenses included purchases of oranges, lemons, ice, Shasta water, seltzer, and other articles useful as barroom appurtenances. The book showed a large number of payments to Kissane of $5 each. There were also- records of payments of larger sums to the “police,” and a number of entries entitled “gift.” On page 92 there was an item, “Gorham 60,” with lines run through it. This item bore date July 26, 1924; on the following page under date of, July 28 there was an item “Gorman 60.” There was also on page 93, under the heading “July money out,” an item “Joe Gorham 50.” This item also had lines drawn through it. There were a number of other accounts entitled “Money Out” in the book, and quite a good many of the items in these accounts had lines drawn through them. The record purported to show that Mahoney was paid a salary and that the profits wore divided between Marrón and Birdsall. There were accounts showing the sale of liquors by the bottle and in some eases the names of the purchasers were given.
On the 22d of November, 3924, the defendant Birdsall filed a petition praying for the return of this ledger to him, on the ground that the search warrant executed on October 2d authorized the seizure of nothing except liquors. All of the defendants objected to the reception of this ledger in evidence. These objections were overruled, and the action of the court in this respect is the error chiefly relied upon.
The'government admits that the search warrant gave the officers no right to seize the ledger, inasmuch as the warrant mentioned nothing except liquors. The seizure of the ledger took place when the defendant Birdsall was arrested. In connection with the arrest, it is contended that the officers had authority to search the premises and seize anything of evidentiary value which they found. The evidence of the officers is to the effect that no one lived in the flat which was searched. It was used wholly for business purposes.
When the officers entered on the premises on the 2d of October they found the defendant Birdsall in the unlawful possession of liquor. There were found a cash register, slot machines, glasses, tables, and other indications that a business was being conducted when-the liquor was seized. This business has been declared a public nuisance. *254 The _ possession of liquor and the maintenance of a nuisance are continuing offenses.' The defendant Birdsall ' was committing these misdemeanors in the presence of the officers.
In Ex parte Morrill (C. C.)
“A crime is committed in the presence of the officer when the facts and circumstances occurring within his observation, in connection with what, under the circumstances, may be considered as common knowledge, give him probable cause to believe, or reasonable ground to suspect, that such is the ease. It is not necessary, therefore, that the officer should be an eye or an ear witness of every fact and circumstance involved in the charge, or necessary 4o the commission of the crime.”
In U. S. v. Stafford (D. C.)
“In every ease where there is some evidence tending to show that an offense is being committed, and it is such as to cause the officer sincerely to believe that such is the case, and it turns out that his belief is correct, the arrest and subsequent search and seizure are legal.”
Although the officers who seized the gray ledger had no warrant for the arrest of Birdsall, they had authority to arrest him as guilty of a misdemeanor committed in their presence. Vachina v. U. S. (C. C. A.)
The property and papers of the defendant are no more sacred than his person. The right of search extends to the premises in control of the defendant arrested, and authorizes the seizure of that which is evidentiary of the crime. U. S. v. Wilson (C. C.)
The search was not unreasonable, and it did not violate the rights of Birdsall and Marrón under the Fourth Amendment.
It is strongly contended by Marrón and Birdsall that, even if the ledger was properly seized, it is not admissible in evidence over their objection, because of the provision in the Fifth Amendment to the federal Constitution that “no person * * * shall be compelled in any criminal ease to be a witness against himself.” The argument is that the admission in evidence of this book kept by Marrón afid Birdsall is equivalent to calling them to the stand and requiring them to testify for the government. In support of this contention, these defendants rely on Hagen v. U. S. (C. C. A.)
Boyd v. U. S.,
In Gouled v. U. S.,
“There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized.”
Tho court then holds that the papers involved in the Gouled Case were private papers, as to which the government had no right of possession.
Tho ease at bar is distinguishable from the Gouled Case in that here the seizure was lawful. There is also a clear distinction between tho papers seized in the Gouled Case and the gray ledger found at 1249 Po-Ik street. It is provided in section 10 of title 2 of the National Prohibition Act (41 Statutes, 312; section 8351i of Barnes’ Code, 1924 Supp.; U. S. Comp. Statutes, § 10138y2e):
“No person shall manufacture, purchase for sale, sell, or transport any liquor without making at the time a permanent record thereof showing in detail the amount and kind of liquor manufactured, purchased, sold, or transported, together with the names and addresses of the persons to whom sold, in case of sale, and the consignor and consignee in ease of transportation, and the time and place of such manufacture, sale, or transportation. The commissioner may prescribe the form of such record, which shall at all times be open to inspection as in this act provided.”
Section 34 of the same title (Comp. St. Ann. Supp. § 10338%u) provides that the record required by section 10 aforesaid “shall be subject to inspection at any reasonable hour by the commissioner or any of his agents or by any public prosecutor or by any person designated by him.” The gray ledger does not contain all of the information called for by section 10 of title 2 of the Prohibition Act, but it contains a more or less complete record of the liquor purchased, a record of the sales from day to day and in some eases the names of the purchasers. Such a hook is not like tho private papers of a citizen. It is subject to inspection by a number of persons, and the statute requires it to he kept as a permanent record. It is true that the gray ledger contains other matter in addition to that which the statute requires to be kept, but a party who records his affairs iu a book subject to inspection cannot complain of the consequent invasion of his privacy.
The Supremo Court has repeatedly held that the private papers of a party are competent evidence against him even in a criminal case. In Adams v. New York,
“In other words, he claims the same sanctuary for the exhibits in the hands of tho court as though they were in his hands and had never been published or delivered to the world. For this he invokes certain principles and eases. The principles are well established. * * * They preclude, *256 of course, compulsion, either upon the individual or, under some circumstances, his property; nor is it a condition or part of compulsion that there be an actual entry upon premises, an actual search and seizure. The principles preclude as well the extortion of testimony or detrimental inferences from silence or refusals to testify. The incidences of the cases in which the principles were declared do not help Perlman. In all of them there was force or threats or trespass upon property, some invasion of privacy or governmental extortion. * * * They, as we have said, make the criterion of immunity not the ownership of property but the ‘physical or moral compulsion’ exerted.”
In Stroud v. U. S.,
“In this instance the letters were voluntarily written, no threat or coercion was used to obtain them, nor were they seized without process. They came into the possession of the officials of the penitentiary under established practice,1 reasonably designed to promote the discipline of the institution. Under such circumstances there was neither testimony required of the accused, nor unreasonable search and seizure in violation of his constitutional rights.”
Burdeau v. McDowell,
In U. S. v. Wilson (C. C.)
“Do the terms ‘compulsory discovery’ and ‘seizure’ refer to more than the exercise of compulsion upon the defendant himself, either during the trial, or while he is under arrest, to compel him to produce, or to furnish information as to, property and papers which are wanted as evidence? * * * Is not the test rather to see if the production has been compelled, than to prohibit the use of everything not voluntarily and knowingly turned oyer?”
The above case is cited by this court with approval in Sayers v. U. S. (C. C. A.) 2 F. (2d) 146. The ease last cited commits this court to the principle that in the ease at bar “the arrest of defendant and the search of adjacent rooms and seizure of liquors and papers were a duty, were legal, and were not unreasonable within the import of the Fourth Amendment”; also that the use' of papers and books so seized in the trial of a defendant is free from constitutional objection.
The foregoing conclusions find support in a number of recent federal authorities. Baron v. U. S. (C. C. A.)
The defendants rely on Kirvin v. U. S. (C. C. A.)
It is earnestly argued on behalf of Gorham and Kissane that the ledger was inadmissible as to them.
The jury was warranted in finding from the evidence that all the entries in the gray ledger from and after page 34 were written either by Marrón, Birdsall, or E. O. Vaughan. Vaughan is an expert accountant, who was employed by Birdsall to audit the books from month to month. He testified that Birdsall directed him to post in one account all items in the book listed under “Police,” “Kissane,” and “Gift.” Whatever entries were made by Vaughan were made
*257
under the direction of Birdsall. It is elementary that, where there is proof of a conspiracy, the act or declaration of one of the parties thereto in reference to the common object may be given in evidence against the others. Sundry Goods, Wares & Merchandises v. U. S.,
If the condition of the record when the gray ledger was received in evidence did not entitle the government to use it, the error was cured, if the necessary suppoi-ting ovidence was subsequently produced. De Witt v. U. S. (C. C. A.)
There was abundant evidence from which the jury was warranted in finding that there was a conspiracy for the unlawful sale of liquor- at 1249 Polk street, and that Marrón, Birdsall, and Mahoney were parties to it. MaiTon rented the premises and paid the water, telephone, and eleetrie bills. Birdsall and Mahoney were there from day to day dispensing drinks. The circumstances shown justified the conclusion that those parties had agreed with each other continuously to violate the National Prohibition Act.
The premises were little more than half a block from the Bush Street Police Station, For at least seventeen months, and probably longer, the flat was operated as a saloon, where any one who gave three rings of the bell- was admitted. A large business was done. This involved the receipt of considerable liquor from time to time and the coming and going of patrons. The cireumstances suggest a corrupt understanding with men in the police force as an indispensable condition to the continued operation of the business.
The defendants Gorham and Kissane were directed by their superiors to keep the premises under watch as a suspected bootlegging joint.
Gorham was sergeant of police, operating from the Bush Street Station during the last seven months the business was carried on. On the 27th of March, 1924, a complaint was turned over to him “that the premises 1249 Polk street is a bootleg- joint.” Two days later, he testifies that he visited the flat and found George Birdsall in possession. He had known Birdsall for twenty years, and knew that during nearly all that time Birdsall had been a bartender. He testiffed that Birdsall refused to permit him to search the premises without a warrant. Gorham reported under date of April 1, 1924, that the flat was occupied by George Birdsall as Ms residence. There was other evidence that Birdsall lived at 519 Belvedere street, and that the flat on Polk street eontained no sleeping accommodations. Gorham testified with groat positiveness that he was never able to gain admittance to the flat. The witness Latham subsequently testified that he saw Gorham in the flat in September, 1924, and that Gorham saw Latham take a drink of gin. Gorham’s testimony and Ms reports to his superiors were to the e£feet that he had the flat under observation and would proceed criminally as soon as he could secure evidence.
Latham’s testimony was received in rebuttal, and error is predicated thereon. The testimony controverted Gorham’s statement that he was unable to secure admission to the flat. It was therefore proper rebuttal. It is also to be said that the order of proof is in the discretion of the trial court, and it is not ordinarily error to receive in rebuttal testimony which ought to have been offered as a part of the case in chief. Goldsby v. ü. S.,
Kissane was the policeman on the beat during the years 1923 and 1924. Kissane testified that he suspected that the flat in question was being used for bootlegging purposes while Hawkins was in charge. March 3, 1924, Kissane’s attention was called by his superiors to a report that liquor was being sold on the premises. Under date of March 30 he reported that he liad been through all of the rooms and found no evidenee of liquor there. In a subsequent report and also on the witness stand he stated that he visited the premises about twice a week and never saw any evidence of bootlegging. The jury must have concluded from the testimony of other witnesses that the flat was fitted up with all the facilities for the sale of liquor. Kissane testified that Mahoney told him he was working there, and, when asked what he was doing, Ma- *258 honey replied, “Bartender.” Kissane admitted on cross-examination that he saw a dozen whisky glasses, a number of empty-wine bottles, and an empty gin bottle. He made no report of any of these facts. The jury was warranted in drawing an unfavorable inference from the shifty and contradictory testimony of the defendant Kissane.
The court did not err in holding that there was prima’ faeie evidence that Gorham and Kissane were parties to the conspiracy. The entries made by Marrón in the gray ledger were admissible as evidence against them.
At the conclusion of the case in chief Gorham and Kissane moved the court for a directed verdict. By offering evidence thereafter, these defendants waived this motion. Simkins on Federal Practice, 109; Younblood v. U. S. (C. C. A.)
The motion was renewed at the conclusion of the testimony and in our opinion it was properly denied.
“A preconcerted plan to do an unlawful aet must from the nature of the case be usually established by inferences drawn from the relation of the parties from the acts done and from the results achieved.” Thomas v. U. S.,
“If the evidence shows a detail of facts and. circumstances in which the alleged conspirators are ..involved, separately or collectively, and which are clearly referable to a preconcert of the actors and there is a moral probability that they would not have occurred as they did without such preconcert, that is sufficient, if it satisfies the jury of the conspiracy beyond a reasonable doubt.” Davis v. U. S.,
The evidence against Gorham and Kissane was sufficient to take the case to the jury, and it was for the jury to say whether it satisfied them beyond a reasonable doubt.
The defendants Gorham and Kissane moved in arrest of judgment on the ground that the facts stated in the indictment do not charge a crime as against those defendants. After alleging in great particularity a conspiracy of the defendants to violate a number of the provisions of the prohibition statute, the indictment sets up eleyen overt acts alleged to have taken place in furtherance of the conspiracy. The seventh of these acts is the receipt by Kissane of $5 and the eighth the receipt by Gorham of $90. The indictment charges that these moneys were paid by Birdsall to these defendants as police officers. It is argued that there is no statute forbidding the receipt of money by a police officer and that the seventh and eighth overt acts are therefore innocent.
“There is no rule of law which requires an overt aet to be an unlawful act.” Rumely v. U. S. (C. C. A.)
The defendant Kissane requested instructions defining the limitations upon his power to arrest for crime. These instructions were properly refused. Kissane was not charged with failure to arrest criminals, and the jury was clearly instructed that he and Gorham could not be convicted on proof merely that they had been derelict in their duty as peace officers. There is no error as against the defendants Gorham and Kissane.
On the 26th of August, 1924, Robert A. Coulter, captain of police, and Officer Hicks, entered the premises located at 3047 California street, San Francisco, ostensibly for the purpose of making a sanitary inspection. Coulter admitted on the stand that the sanitary inspection was a mere subterfuge to secure an entrance to the premises. They found in the garage a large quantity of liquor belonging to the defendant Marrón. They summoned the federal prohibition officers, who seized the liquor and testified at the trial to the circumstances under which it was secured. No one had a warrant for this seizure, nor was any one arrested at the time the liquor was taken. Prior to the *259 trial, Marrón petitioned the court to suppress this evidence, and he reserved his objection and exception to the evidence when it was received at the trial.
On the 3d of September, 1924, under identical circumstances, liquor belonging to Marrón was seized at 2922 Sacramento street, San Francisco. Police Officer Hicks secured admission to the premises for tho purpose of making a sanitary inspection. He admitted on cross-examination that this was a subterfuge. He fouud liquor and notified the federal prohibition officers. They seized the liquor, and offered testimony at the trial as to the circumstances of the seizure and tho alcoholic content of the liquor. Marrón petitioned prior to the trial for the suppression of tho evidence and reserved his objection and exception when the evidence was received. There was no warrant for the search of 2922 Sacramento street, and no one was arrested when the liquor was seized.
The Fourth Amendment to the federal Constitution is no limitation on tho authority of state officers. If the police had seized the liquor at 3047 California street and 2922 Sacramento street and the federal officers had had no part in tho transaction the testimony with reference to the raid would have been admissible. Weeks v. U. S.,
Tho record shows that the District Court in admitting the evidence was influenced by the decision of this court in Forni v. U. S. (C. C. A.)
In Carroll v. U. S., decided by the Supreme Court March 2, 1925,
On the authority of Gouled v. U. S.
Some question is made about the seizure of liquor on April 24, 1925, at Marron’s home, 2031 Steiner street. This liquor was seized under a warrant properly issued, and the only question raised was the relevancy of the evidence to this conspiracy. It was the contention of the government that, shortly after the date of this seizure, Marrón made arrangements with the defendant Brand to co-operate with him in running the establishment at 1249 Polk street. The fact that Marrón was well stocked with liquor at this time was a circumstance which the jury had a right to consider.
There are numerous additional assignments of error on behalf of the defendants Marrón and Birdsall, but they are not mentioned in their briefs. Tho instructions given were fair to the defendants.
The judgment is affirmed as to Birdsall, Gorham, and Kissane.It is reversed as to Marrón, with directions to grant him a new trial.