Wilson v. United States, 59 F.2d 390

Wilson v. United States

59 F.2d 390

3rd Cir.

1932

Check Treatment

*1 invalid dealing in Rican coffeeand Puerto' equal clause protection as in violation of the amended Organic (section as Act 737]) Fourteenth USCA § [48 also as Amendment of the Constitution/ impos- contravening commerce clause interstate an undue burden foreign It did not hold commerce. being Organic Act 3 of the violated section imported discriminating against articles a tax foreign countries United States or manufac- produced and similar articles that it Rico, reason tured Puerto inspection an imposed regarded charge clause does The commerce fee not a tax. in view of Rico; and extend to Puerto unnecessary reached it conclusion here 2 of it violated section to consider whether Organic Amend- the Fourteenth Act and ment. Questell, of Gallardo v. While in the ease that Act No. court held predecessor 22 of of the act Organic section 2 did contravene Amendment, did not Act or the Fourteenth sec- No. consider whether Act contravened pertinency Organic tion 3 of Act and the attention, of section 3 not called to argument made in brief filed or as no appellee court favor in whose Puerto Rico United States had held act invalid. . given the order we have For reasons

is; Supreme Court judgment ap- affirmed, with costs Puerto Rico is

pellee. J., result, MORTON, concurs in

n isof question is not act in opinion constitutional “inspection law” (article cl. meaning 1, § words im- invalid as opinion in his 2).. The act is imported mer- posing tax on a substantial 3 of Or- chandise violation of section Aet. ganic STATES. v. UNITED

WILSON

No. Appeals, Third

Circuit Court Circuit. May 20, 1932. Judge, dissenting.

McVIOAR, District *2 States, 26 S. Ct. 50 L. Ed. 686. go,We in directly the consequence, to question legal of propriety the the com- of mitment. from presented This has been to us angles different points view. Objection 1. interposed ques was to the ground tion immateriality. the doWe see, not however, question arises. If that a witness be question asked a which he de clines to answer the for reason he deems that sought fact to be elicited to be immalei i al to the issue court, before the court trial See, also, 394. necessity must of question determine the Wilmington, Del., Wales, Leonard E. materiality ruling. and must enforce its Not C., and Randolph Washington, D. Shaw, of do to so would be to surrender to the wit Y., Wegman, Brooklyn, J. Bertram N. for judge. pro ness a function of the The trial appellant. priety of a ruling commitment by is not determined the merits of evi Wilmington, Southerland, Clarence A. dentiary question witness, ruled. This how Del., for the United States. ever, did refuse ground not to answer on this DAYIS, Judge, Before Circuit wholly but the different one next discussed. Judg- MeVICAR, DICKINSON and The real of his refusal wás es. that by he had been forbidden another de partment government to make the dis Judge. DICKINSON, District question closure for asked, which the because The defendant in case the United the information confidentially had been given League Democratic Del as an aid to crime detection. appellate appropriate sup aware made an motion to question is, raised consequence, in press evidence which.il was been averred had policy of the law the disclosure forbids illegally obtained. In the course of hear for, or at least whether a trial court motion, of this Harold D. compel a should witness to disclose what a called as witness. He testified inter alia co-ordinate government branch of the had premises he that had entered the of the de him commanded to not disclose. so We have by fendant of a means which had been question stated the because of a difference of league. by him furnished a member respecting view the basis of the doctrine. upon cross-examination, He was asked “Who Many of cases, emphatically the decided question he the member?” refused early English own, and our well, ones by answer; was directed trial to to court view the doctrine as poliey founded adjudged answer; contempt to bo that the name of one whom in Prom refusal, and was committed. for given formation has been to officer appeals these this order commitment have law of law divulged. violations should be taken and the raised is the poliey recognizes been solo The that it is the legal everyone propriety one of his to aid in law commitment. enforcement and has proceeding adopted encouragement nature of was such been that expression of no formal the views of information may whom court received. In up has come view, power compel with the record. the other below There such dis however, is, informal resting judicial discussion closures is one which led discre up commitment, the order of but this tion of the trial does court. has in it the ele necessarily comity courtesy. disclose what moved the ment of and official Every court appeal government order from which to make the branch of owes of as will, in consequence, taken. We sistance each of the follow the others. Out o£ this arguments general of counsel grown accepted which have been ad has doctrine pass questions pro to us. We all dressed the courts of the United States not to compel cedure, identity raised; as none here being counsel one who has legal propriety given government in accord without may be determined appeal commitment on the of the latter. When the the consent witness for which here taken cite Gill v. been called United has the trial may (C. A.) modify 262 F. Alexander court doctrine and, being admissi- consequence, admissible, dis- imposing terms consent Upon it. ble, witness not withhold be withdrawn could given or the witness closure be ad- testify was properly refusal he incomplete. his testimony struck out and his *3 of in and order judged' contempt, es- to be is asked as When, however, the disclosure properly commitment trial or is followed. of on sential to the defense one cause, a of the the determination overruled, essential to assignments of error are The doc- the referred to modification of further order affirmed. and the of commitment thus general The doctrine as trine is made. may be follows: modified stated as Judge McVICAR, (dissenting). every cit of 3. It is the League of A member of Democratic the to to communicate izen United of the told Delaware, political corporation, a social government of the executive officers the prohibition admin- Wilson, deputy D. Harold enforcing all charged the with the of Delaware, that the of istrator district of commis which he has the the information liq- possession intoxicating league was in of the against the of offense laws sion of an on its maintaining was nuisance uor and a privi is and such information Wilmington, city property the of located in which leged confidential communication as a in Prohibition Del., violation of National the compel permit be dis the to courts will key for, and gave Act. The member Wilson a government. without consent of the the closed league, building with diagram of, a the protec not for the excluded, is Such evidence liquor the directions as where and how to because, policy of witness, the tion of the pro- Wilson, with several could be found. 311, 4 Vogel U. S. Gruaz, 110 law. v. the fur- agents, by the virtue hibition 158 158; Quarles, 12, 28 L. Ed. In re S. Ct. locked the member, nished the unlocked 1080; L. 959, 39 Ed. 532, 15 S. Ct. U. S. building league, and, the doors in the 12 Scribner, 487, 109 Mass. Worthington v. diagram instructions, found virtue of and (C. Nat. 736; First Bank Rep. Am. v. Steen liquor therein, and seized the bar which 36; A.) Segurola F. v. United States 298 C. basis of without a warrant. On the search A.) F.(2d) (C. 16 563. in evidence, this an information filed was exception is, however, an to There United States District Court for the state of doctrine, rule a modification of 1931, Delaware, January 5, charging the way gives in to another doctrine that it in- league possession with unlawful A conflict. trial court when the two the law toxicating liquor the maintenance of and a what before it. If dispose, must the cause premises on aforesaid. nuisance to vindicate is asked is useful evidence league January 26,1931, presented risk of or lessen the of the accused innocence petition praying that District Court proper to testimony false or is essential prohibi- property seized the federal disposition ease, will be com agents returned, the evi- tion and that State, 452, 105 pelled. v. Centoamore Neb. suppressed dence received be on the 182; Regina Richardson, v. 2 181 N. W. Fost. seizure, search under the cir- that and 693; Dreyfus, Q. F. v. & Marks L. R. 25 B. cumstances, a violation of the was Humphrey D. Archibald, v. Ont. rights under the Fourth Amendment. A 267; Wigmore Evidence, App. p. on 3331. hearing petition February was had on 18, hearing 1931, at which the above facts were question here at issue The was was developed. While Wilson on the by a witness testify- the evidence secured search and seizure government, suppressed. stand for the and after proceeding should be The diagram, key, and instructions ancillary prosecution against a criminal to member, league. received from a he was The witness were Delaware' had testi mem- procured cross-examination, on “Who was the he had access fied that to the rooms attorney objected government’s member, ber?” to on the invitation a ground (page on 69 of supplied a membership who him with had record) clearly against poli- public card, key, plan building. a If “that and a cy part an officer of supplied these of access means had been divulge informa- by member, the source of his unlawfully but had been ob States a regard law, par- violation sup tion to a tained, the evidence secured should be ticularly felony.” Eagles The court overruled pressed. Fraternal Order of v. Unit objection (C. an- A.) To de the- and directed witness ed question, sought this, the not swer the refused termine information could witness stating: do, Honor, “Tour will have to was “essential to I be withheld. The evidence in confi- disposition case,” and, you given tell that me proper privileged communication, it.” honor disclose confidential and I can not with donee prohib- for which of libel or slander will no action appears further par- lie, be com- under and the disclosure which cannot giving such ited government.” pelled Man- without Regulations 4, the assent of the VI, agraph 51 of section Agents in for Officers ual fo Instructions 311, 316, 4 Vogel Gruaz, 110 U. v. court, aft- Field, Bureau of Prohibition. Supreme Ed. S. Ct. L. the effect of his admonishing witness er approved statement contempt, adjudged guilty of action, him Massachusetts, Supreme Judicial Court custody the United him to the committed Scribner, Worthington 109 Mass. of his himself purged until States marshal he duty of Rep. 12 Am. 736: “It this court contempt. The ease is now before every govern citizen to communicate *4 order. appeal aforesaid on Wilson's any of the ment information he has overruling of assigns error the Appellant as against its laws.” of an offense commission objection question government’s duty encourage performing this To him in guilty adjudging him the order aforesaid and consequences, the holds wiikout fear of contempt. among the secrets information to he such duty question far and un state, is and leaves how It is well established that govern of the in names communicate to der what circumstances every citizen communication its knowledge of the violation formers and channel ment his privi known, are to the absolute communications shot! be suffered to be laws, such and that government, to be exercised protected on the of the leged and be discretion will Hardy according Thomas the interests views of policy. In the trial what public Trials, 808 high treason, 199, public 24 require. of the for State Q. 1890, 25 Beyfus, L. R. (1791); v. Marks of the rule, the name member Under this Gruaz., 119 U. 494, Vogel S. 498; v. B. D. communicating alleged vio- In 158; 28 L. Ed. 315, 12, 4 311, 316, S. Ct Act to Wil- lation of the National Prohibition 532, 535, 15 Ct. Quarles al., 158 S. et U. re S. administrator, son, deputy prohibition 1080; United States 959, Goetz v. 39 L. Ed. communication, was privileged a confidential 5) 903; Froelich v. F.(2d) A. 38 (C. C. compelled disclosure of which cannot be with- F.(2d) 680, 8) 33 (C. C. A. United States government. out the assent of 1) (C. A.C. 663; Segurola v. United States recognized Some have ex authorities (affirmed other (2d) 563, 585 on 16 F. ception rule, to, qualification of, the above 77, 48 72 L. 106, 275 S. Ct. grounds, U. S. might name of the informer es where the (C. 186); States C. Mitrovich v. United Ed. tablish, establish, in a crimi or tend to 163; United 9) v. F.(2d) 15 Smith A. innocence of tho accused. Un ease, nal (certiorari denied, F.(2d) 9 386 (C. 9) C. A. 287, (3d Ed.) § Criminal Evidence derhill’s States, 271 U. S. sub nom. Oreb v. United Wigmore Evidence, 5, vol. p. 395; § on 674, 488, 1145); L. Ed. 46 S. Ct. 70 Arn Beyfus, (1890) 25 2374; Marks v. L. R. States, App. 199, 54 296 stein v. United D. C. 494; Regina Richardson, 3 Q. D. v. B. 4) 946, 950; (C. Elrod v. Moss 278 F. C. A. Moses, v. 4 693; Fost. & F. United 123, 127; Criminal Evidence F. Underhill’s 15825; 726, Peo Cas. No. Wash. C. C. Fed. Ed.) Wigmore (3rd p. 395, on Evi 287, § and 569, 362; 18 N. ple Davis, 52 Mich. W. v. dence, 5, Vol. § 457; 135, 102 60 N. People Laird, Mich. W. v. Quarles al., 532, 158 on Re et U. S. (C. 9 States, F.(2d) United 386 Smith v. page 535, 959, 960, 1080, 15 39 S. Ct. L. Ed. 9), Biich, 45 A. and States v. by Supreme is stated Court: “It is the Wyoming). (D. 627 only every right, peace and the is stated in rule Underhill’s Criminal States, every officer of the United citi (3d Ed.) 287, p. 395, § Evidence thus: “But securing prosecuting, zen, to assist question arises in a trial, when the criminal any punishment of, peace breach material information is to determine right, is the United It as well States. innocence, the defendant’s it would seem both every duty, citizen, up when as the called just necessity reasonable and and de- officer, part proper to act sirability upholding laws his posse comitafcusin public whether tho would be bene- interests country. and his Tt is likewise his solely suffer, should be fited or would any officers to communicate executive judicial discretion tho circumstances of which he commission has the ease.” laws; such in of an offense privilege formation, given by citizen, a The rule of based on private public is a is 394 policy. exception qualification or also 383, S. 34 S. 341, Ct. 58 652, L. Ed. L. R. A. public policy based on the that an 834, innocent 1915B, 1915C, Ann. 1177; Cas. Silver- liberty by defendant lose should not his the thorne Lumber Co., States, Inc. v. United 251 withholding of the name informer 385, U. S. 40 S. Ct. 64 L. Ed. 319 [24 where is material to innocence. This 1426]; A. R. States, L. Gouled v. United qualification seemingly apply therefore would U. S. 65 L. S. Ct. Ed. only to individual defendants and not to a Amos S. corporate no defendant, personal which has Ct. 65 L. Ed. 654.” liberty to lose. Our has not been attention When asked, the name informer was qualification called to ease where this the uncontroverted evidence disclosed applied rule has been favor of league’s rights under Fourth Amendment corporation; a violated, had been re- and that the evidence ceived a result of the search and seizure qualification privilege, of the rule suppressed. would have there- requiring the name of the informer to be fore before the immaterial to the issue then only given, applies “the information when diagram, and instruc- key, inno- material to determine the defendant’s stranger a tions were furnished cence.” Was the name of informer ma- member, and, if his name latter, what terial to determine the innocence *5 was. Wilson, when it was “Who was member?” not. I think When Wilson privilege Under the rule of stated already question, appeared asked this above, it was to not Wilson’s hear- evidence at the the uncontroverted taken disclose the name of the informer. The prohibition agents, that Wilsoh and the qualified rule, applicable corporation, if ato league’s property, entered who were apply not did not in-! because name of the league; persons members of the that no former was not material to the determination members were entitled to admission league’s to its of the I therefore innocence. would agents property; did reverse the order of the ad Wilson District Court any not enter invitation of member, or judging guilty contempt. any pretense they granted under were any right privilege league, or or person persons represent or authorized to they league; they knew, by entered -as they'had legal right use of a no use; entry possess trespass; their awas UNITED STATES v. DEMOCRATIC they trespassers they were from the time srnd OF LEAGUE DELAWARE. property entered until No. 4592. same, left the and their acts were a violation fights under Fourth Appeals, Circuit Court Third Circuit. Amendment. May 20, 1932. Eagles In the Fraternal Order of ease of (C. A.) F.(2d) 93, 94, Judge, opinion by Davis-, filed March Circuit

1, 1932, gained property entrance was Eagles by of the Fraternal Order of the use membership entry false cards. rights be violation held to of the or ganization Fourth under the Amendment. opinion of the court seated: “A entry by' as the result of search made an force is not necessary in order physical the Fourth Amendment. That violate amend designed protect ment was the individual authority. of official abuse A entry search and seizure into person suspected of a the house office fraud, stealth, crime means of social ac quaintance, guise or under the a business of. are unreasonable and violate the Clarence A. Southerland, call Fourth of Wilmington, Del., for the Weeks v. United States. Amendment.