Reisgo v. United States

285 F. 740 | 5th Cir. | 1923

WALKER, Circuit Judge.

The plaintiff in error (herein called the defendant) was convicted, under an information charging that he did unlawfully and knowingly have in his possession described intoxicating liquor, and brings the case here by writ of error.

In connection with testimony as to the searching of the defendant’s premises, a search warrant was offered in evidence. The defendant objected to the introduction of that instrument in evidence, “because the same does not show a proper return on the back, it not having been sworn to.” The overruling of that objection was not error. The admissibility of the warrant was not dependent on the return being sworn to. The objection as made was not based on the ground that there was a failure to comply with the provision of the statute (Comp. St. 1918, § 104961/4m), as to the delivery to the official who issued such warrant of a sworn written inventory of property taken in executing it. It seems that, if the objection had been made on that ground, it would not have been well taken, as the making and delivery of the inventory called for is a ministerial act, the omission of which does not affect the validity of a search made in pursuance of the warrant. Rose v. United States (C. C. A.) 274 Fed. 245.

The judgment is not subject to be reversed because of the action of the court in overruling an objection to a witness for the prosecution testifying in rebuttal, on the ground that the witnesses were put under the rule, and that said witness remained in the courtroom while evidence was being taken on behalf of the defendant. The bill of exceptions does not show that the facts were as stated in the ground upon which the objection was based. Furthermore there is nothing to indi-' cate that the ruling in question involved an abuse of the discretion which a court may exercise in dealing with such a matter. 38 Cyc. 1871.

No other ruling is properly presented for review.

The judgment is affirmed.