Maccieno v. United States

PER CURIAM.

This proceeding in error challenges the validity of the evidence on which defendant was convicted on each of four counts of a criminal information. The evidence was procured under a search made April 24, 1924, by officers who had in their possession two warrants, one of which was issued April 23 d and the other April 24th. A copy of neither was given to defendant, though the arresting officer testified that he offered defendant “a search warrant, and he said he didn’t care for it.” Upon each of the warrants a return was made, showing that it was executed and the search made thereunder. Both were introduced in evidence by the defendant on his motion to suppress the evidence. The second warrant was defective, but the first complied with the requirements of the applicable statutes, and in view of the return thereon it will be presumed that the officers were acting under it when the search was made.

The affidavit for the warrant stated that the property described was being used for “the unlawful possession and sale of liquor, to wit, whisky, spirits, etc., containing one-half of 1 per cent, or more of alcohol by volume for beverage purposes.” -This was an allegation of fact, unlike the affidavit in Staker v. U. S. (C. C. A.) 5 F.(2d) 312, which alleged “that the affiant had reasonable ground to believe and did believe that intoxicating liquors were being sold, manufactured, disposed of, or illegally possessed in the house of the defendant.” A majority of the court think the affidavit was sufficient to justify the issuance of the warrant, which, being valid, rendered the evidence procured thereunder admissible.

The fine assessed under count 2, however should not have been imposed, because the' conviction on that count was included in the offense charged in count 3, upon which sentence was imposed. Reynolds v. U. S. (6 C. C. A.) 280 F. 1.

The judgment is affirmed as to the first, third, and fourth counts, but the fine imposed under- count 2 will be set aside.