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Advocates
  • P.H. McEachin, of Florence, S.C. (P.H. Arrowsmith, of Florence, S.C., on the brief), for plaintiff in error. Louis M. Shimel, Asst. U.S. Atty., of Charleston, S.C. (J.D.E. Meyer, U.S. Atty., of Charleston, S.C., on the brief), for the United States.
Judges
  • Edmund Waddill
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Citation Codes
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Docket Number
Advocates
  • P.H. McEachin, of Florence, S.C. (P.H. Arrowsmith, of Florence, S.C., on the brief), for plaintiff in error. Louis M. Shimel, Asst. U.S. Atty., of Charleston, S.C. (J.D.E. Meyer, U.S. Atty., of Charleston, S.C., on the brief), for the United States.
Judges
  • Edmund Waddill
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Smart Summary

Case Summary: Brown v. United States, No. 2335 (4th Cir. June 15, 1925)

Factual and Procedural Background

Sam Brown was charged by information in the United States District Court for the Eastern District of South Carolina at Charleston with unlawfully, knowingly, and willfully maintaining a place known as the Gate City Filling Station where intoxicating liquor was sold, kept, and bartered, in violation of title II of the National Prohibition Act and constituting a common nuisance. The defendant pleaded not guilty. Before the jury was impaneled, defense counsel moved to suppress evidence of whisky allegedly secured on November 29, 1923, from a safe in the defendant's office by national prohibition agents on the ground of unreasonable search and seizure and lack of a lawful warrant. The district court declined to rule on that motion at that stage and postponed action until trial; the government ultimately relied on other testimony. A jury found Brown guilty, and judgment was entered directing imprisonment for ten months. Brown appealed by writ of error, assigning several trial rulings and the sufficiency of the evidence as error. The Fourth Circuit considered four assignments of error and affirmed the district court's judgment.

Legal Issues Presented

  1. Whether the district court erred in its preliminary handling (postponement) of the defendant's pretrial motion to suppress evidence of whisky allegedly seized November 29, 1923.
  2. Whether the district court erred in permitting cross-examination of the defendant concerning the finding and seizure of the whisky.
  3. Whether the evidence presented at trial was sufficient to warrant the jury's verdict of guilty and the entry of judgment for maintaining a liquor nuisance.
  4. Whether the trial court erred in denying the defendant's motion in arrest of judgment on the ground that the defendant had severed his connection with the premises about ten weeks before the filing of the information and therefore could not be prosecuted for the prior nuisance.

Arguments of the Parties

Plaintiff in Error (Defendant Sam Brown)

  • Moved to suppress and exclude evidence of whisky seized November 29, 1923, arguing the evidence was the fruit of an unreasonable search and seizure and obtained without a lawful search warrant.
  • Contended it was error to permit cross-examination about the finding and seizure of the whisky.
  • Moved in arrest of judgment, asserting that because he had severed his connection with the premises some ten weeks before the filing of the information, the prosecution could not be maintained for a previously committed nuisance.
  • Testified in his own defense, denying the charges generally but admitting certain convictions and substantially conceding facts concerning the November 29 occurrence.

United States (Prosecution)

  • Relied upon the sufficiency of other testimony to sustain the prosecution, rather than pressing immediate ruling on the suppression motion.
  • Introduced numerous witnesses, including the town chief of police, who testified that the defendant had been proprietor of the Gate City Filling Station for a considerable time and that intoxicating liquors were frequently sold on the premises by different employees; the defendant had prior convictions.
  • Presented testimony (Officer Stacy) indicating a search warrant was in hand and describing how the whisky was produced from the safe.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Windsor v. United States (C.C.A.) 286 F. 51, certiorari denied, 262 U.S. 748, 43 S. Ct. 527, 67 L. Ed. 1212 Referenced in connection with the court's handling of a pretrial motion to suppress and the propriety of postponing a ruling where the government relies on other testimony. The court cited Windsor to support the view that postponing a definitive ruling on the suppression motion at the preliminary stage was not error when the government relied on other testimony to sustain the prosecution.
United States v. Williams (D.C.) 295 F. 219 Referenced alongside Windsor regarding the postponement of ruling on a suppression motion. Used to show that the district court's postponement of ruling on the suppression motion was permissible under the circumstances.
Honeycutt v. United States [4th C.C.A.] 277 F. 945 Example of a case where permitting cross-examination of an accused about evidence rejected on a preliminary motion would be improper. The court acknowledged Honeycutt as authority for the general principle but distinguished it because, in this case, the search and seizure had not been adjudged illegal and the defendant had testified.
Chicco v. United States [C.C.A.] 284 F. 434 Another example of limitation on cross-examination where preliminary motions have excluded evidence. Similarly distinguished on the ground that the contested evidence here had not been excluded by judicial determination when the defendant testified.
Fields v. United States, 221 F. 242, 137 C.C.A. 98 Support for admitting evidence of sales of liquors other than those specified in the information. Relied upon to sustain admission of evidence showing sales of other liquors as relevant to proving the nuisance.
Tierney v. United States (C.C.A.) 280 F. 322 Support for admitting evidence of sales of liquors other than those specified in the information. Applied to justify admitting evidence of other liquor sales in proving the alleged nuisance.
Nutter v. United States (C.C.A.) 289 F. 484 Support for admitting evidence of sales of liquors other than those specified in the information. Used to show the court's precedent allowing proof of other liquor sales relevant to the nuisance charge.
Jones v. United States (C.C.A.) 296 F. 632 Support for admitting evidence of sales of liquors other than those specified in the information. Relied upon to permit broad proof of activities on the premises relevant to the nuisance allegation.
Carpenter v. United States (C.C.A.) 280 F. 598, 600 Principle that much latitude is permitted in proving an alleged nuisance with relation to what was done upon the premises. Applied to justify examining the defendant about the general course of conduct at his premises and incidents like the November 29 occurrence as part of proving the nuisance.

Court's Reasoning and Analysis

The court addressed each of the defendant's assignments of error in turn:

  1. First assignment (pretrial suppression motion): The court held the assignment was without merit because the district court expressly declined to rule at the preliminary stage and postponed ruling until evidence was offered at trial. The government ultimately did not rely on the seized whisky, instead proceeding with other testimony; the opinion also notes the record indicated a search warrant was in the officers' possession and that no forcible seizure was described in the officer's testimony.
  2. Second assignment (cross-examination about the seizure): The court recognized authority that in some cases it is improper to cross-examine an accused about evidence that had been judicially rejected on a preliminary motion (citing Honeycutt and Chicco). It distinguished those authorities because here the search and seizure had not been adjudged illegal and the contested testimony had not been excluded. Moreover, the defendant testified fully about occurrences on his premises and the November 29 incident, thereby opening himself to thorough cross-examination on those matters which the court found relevant to the existence of the alleged nuisance.
  3. Third assignment (sufficiency of the evidence): Considering the entirety of the testimony, including numerous government witnesses and the chief of police's account that liquors were frequently sold on the premises and the defendant's own admissions, the court concluded the facts fully sustained possession and sale of intoxicating liquors on the premises and that the conduct constituted a common nuisance as charged.
  4. Fourth assignment (motion in arrest of judgment based on severance of connection): The court rejected the defendant's contention that having severed his connection with the premises some ten weeks before the information barred prosecution, explaining that an accused may be tried for an offense committed at any time within the statutory period prescribed by law.

Holding and Implications

Holding: The judgment of the district court was AFFIRMED.

Implications: The direct effect is that Sam Brown's conviction for maintaining a liquor nuisance and the sentence of ten months' imprisonment were sustained. The opinion affirms the district court's handling of the suppression motion (postponement), the permissibility of cross-examining the defendant about the November 29 incident after the defendant testified, the sufficiency of the evidence to support the nuisance conviction, and the rejection of the motion in arrest of judgment based on the defendant's prior severance from the premises. The opinion does not announce or discuss any broader new legal rule beyond resolving the issues presented in this appeal.

Show full summary ...

BROWN v. UNITED STATES

WADDILL, Circuit Judge.

Plaintiff in error was proceeded against by information filed in the United States District Court for the Eastern District of South Carolina at Charleston, charging that within the jurisdiction of said court, and without having a permit therefor from the Commissioner of Internal Revenue, be unlawfully, knowingly, and willfully maintained a room, house, building, vehicle, structure, and place known as the Gate City Filling Station where intoxicating liquor was then and there sold, kept, and bartered, in violation of title II of the National Prohibition Act, said room, house, building, vehicle, structure, and place constituting a common nuisance under the laws of the United States. To this information the defendant pleaded not guilty. A jury was impaneled and a verdict of guilty rendered, and judgment entered directing his imprisonment in jail for the term of ten months. This judgment, as well as certain rulings of the court during the trial, duly excepted to, forms the basis of this writ of error.

Upon the calling of the case, and before the jury was impaneled, the defendant through his counsel moved to suppress and exclude all evidence of whisky secured on the 29th of November, 1923, from the defendant's safe in his office at the Gate City Filling Station by national prohibition agents, because such evidence was obtained as the result of an unreasonable search and seizure, and without lawful search warrant.

The action of the court on this motion forms the basis of the first assignment of error, and the same is clearly without merit, as the court expressly declined at that stage of the case to rule upon the propriety of admitting the testimony, and postponed action thereon until the evidence was offered during the trial. This, however, was not done, the government relying upon the sufficiency of other testimony to sustain the prosecution. Windsor v. United States (C.C.A.) 286 F. 51, certiorari denied, 262 U.S. 748, 43 S. Ct. 527, 67 L. Ed. 1212; United States v. Williams (D.C.) 295 F. 219.

It should perhaps be stated in connection with that ruling that, so far as this court can judge, there was a lawful search warrant in the hands of the government's officers, and that, as a matter of fact, no actual seizure was made; the officer, Stacy, testifying as follows: "I had a search warrant at the time. I found five pints of whisky in the safe. Sam Brown opened the safe. We did not make any threat. We were in the filling station. The other officers went round one way. I stepped out. Sam [defendant] went inside and called me in. He said, `I have it.' I told the chief of police. Meantime Sam opened the safe, and I got the liquor out."

The second assignment of error relates to the same matter as that covered by the first, save that it is claimed that the court erred in permitting the defendant on cross-examination to be interrogated in reference to the finding and seizure of the whisky. While cases may arise in which it would be improper to permit cross-examination of an accused, as to evidence rejected upon a preliminary motion made expressly for the purpose (Honeycutt v. United States [4th C.C.A.] 277 F. 945; Chicco v. United States [C.C.A.] 284 F. 434), still, that would not avail a defendant in the circumstances here, where the search and seizure had not been adjudged to be illegal, and the testimony objected to had not been offered in evidence. Here, the government, in order to establish its case, introduced a large number of witnesses, including the chief of police of the town, who testified that for a considerable length of time prior to the filing of the information the defendant had been and was the proprietor of the Gate City Filling Station, where intoxicating liquors were frequently sold on the premises by different employés, and the defendant had been personally convicted on several occasions, one upon his plea of guilty. The defendant offered himself as a witness, and testified generally in denial of the charges sought to be proved against him, going into much detail in respect to what occurred upon his premises, and his knowledge and opportunity of knowledge of the sale of liquor thereon. He also admitted his personal conviction and plea of guilty, and substantially conceded the facts to be true as stated, respecting the occurrences incident to the finding of the whisky on the 29th of November, 1923.

Evidence of sale of other liquors than specified in the information is fully sustained by decisions of this court. Fields v. United States, 221 F. 242, 137 C.C.A. 98; Tierney v. United States (C.C.A.) 280 F. 322; Nutter v. United States (C.C.A.) 289 F. 484; Jones v. United States (C.C.A.) 296 F. 632. Undoubtedly much latitude is permitted in proving an alleged nuisance, as the same has relation to what was done upon the premises involved. Carpenter v. United States (C.C.A.) 280 F. 598, 600.

Plaintiff in error chose to offer himself as a witness in his own behalf respecting all of these matters, and the right of cross-examination was most important, as his evidence gave his version of what took place on his premises, and the incident of the 29th of November was but part and parcel of the same. There was no error in having him interrogated thoroughly as to that, and generally his connection with what occurred at his place of business, as the manner and method of his transactions largely determined the existence or nonexistence of the nuisance alleged to have been committed and maintained.

The third assignment of error presents substantially the question of whether there was evidence to warrant the verdict of the jury and entry of judgment thereon. As to this, considering the entire testimony, we have no doubt, as in our view the only conclusion that could have been reached was that the facts fully sustained the possession and sale of intoxicating liquors on the premises, and that the same constituted a common nuisance, as charged.

The fourth and last assignment of error relates to the action of the trial court upon the motion of the defendant in arrest of judgment, predicated upon the fact that, because the defendant had severed his connection with the premises some ten weeks before the filing of the information, the prosecution could not be maintained for a nuisance theretofore committed. This position seems to us clearly untenable, as under the law an accused can be tried for an offense committed at any time within the statutory period prescribed by law.

The decision of the district court will in all respects be affirmed.

Affirmed.

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BROWN v. UNITED STATES
(Jun 15, 1925)