CHICCO et al. v. UNITED STATES, 284 F. 434

GRONER, District' Judge. The plaintiffs in error, Joseph M. Chic-co and Willie Hills, together with one W. A. Murphy, were jointly indicted in the District Court of the United States for the Eastern District of South Carolina, at the November term, 1921, for unlawfully possessing and tránsporting intoxicating liquors. After a trial by jury, the defendants Chicco and Hills were found guilty, and the defendant Murphy acquitted, and upon this verdict judgment was duly entered by the District Court. There are two aspects of the case, which we will discuss briefly.

The first relates to the refusal of the court to suppress certain evidence obtained as a result of a search by the prohibition officers immediately prior to the arrests; the second arises out of the defendants’ request for a directed verdict upon the theory that there was not introduced sufficient legal evidence to warrant a conviction. Hills, one of the defendants, occupied a storeroom known as No. 85% Market street in the city of Charleston, S. C., where he conducted a soft drink establishment, having a license and telephone in his own name.

The storeroom thus occupied by him, and the adjoining storerooms, Nos. 83,. 83%, and 85, were the property of Vincent Chicco, the father of the defendant Joseph M. Chicco, and all of the latter were unoccupied at the time of the arrests. On the evening of the raid the officers, with a search warrant, properly issued by the United States. Commissioner, describing the premises to be searched as No. 85% Market street, appeared at that number, and, finding Willie Hills in charge, proceeded to search the premises in an effort to find contraband liquor.

Finding no liquor on these premises, they demanded, and obtained from Hills, the keys to No. 85 Market street, which he surrendered. These keys they used in obtaining entrance into the latter place, and upon searching it they found concealed in the wall separating it from No. 83% a considerable quantity of intoxicating liquors, which Hills immediately claimed as his property. On'the return of the officers to No. 85% they found lying on the desk in the office three papers, one a post card addressed to J. M.

Chicco, the second a receipt book in the name of Chicco, and the third a -bill for lumber furnished to Chicco by the Anderson Lumber Company. Having arrested Hills and taken him to jail, a warrant was procured for Chicco, and he was later arrested at his place of business in another part of the city.

After the indictment had been found, but before the defendants were arraigned, or had pleaded to the same, separate petitions were filed on behalf of Chicco and Hills; as to the former, asking for the return or suppression of the post card, receipt book, and lumber bill found on the premises, and as to the latter, for the return of the keys obtained from him and used by the officers in the search of the adjoining premises. The petition in each case was refused by the presiding judge, to which action the defendants severally excepted, and assign this action of the court as error.

We think it is perfectly clear that the action of the court in both instances was right. The petition in neither case set out any ground for either the return or the suppression of the articles mentioned.

In the petition of Chicco, the grounds relied upon were that the search warrant was not properly issued, in that it failed to specify the property to be searched, and that the papers seized were not, in themselves, unlawful, and were papers in which the government had no interest; in the case of Hills, that the keys were obtained from him, on the demand of the officers, on a search warrant not issued in compliance with the law, in that the warrant failed to specify the property to be searched for, and upon other grounds similar to those set out in the case of Chicco.

There was no allegation in either petition that the property which the court was thus asked to return was the property of either of petitioners, nor was it alleged in what respect its possession by the government affected the interests of the defendants; nor was anything alleged tending to show that its continued possession by the government, or the manner in which it was obtained, violated the constitutional rights of either defendant.

No hearing upon the petition was had, and no evidence introduced by either defendant, and therefore it was, in our opinion, clearly the duty of the court, at this stage of the case, to refuse to grant the petitions, reserving the defendants’ rights, respectively, in the trial of the case, to seasonably object to the introduction of any evidence, prejudicial to their rights, which had been. unlawfully obtained — and this the lower court did, submitting to the jury, on proper instruction, the question of the manner in which the keys to the adjoining building were obtained, which was the only controverted fact raised, either on the petitions or on the motion to reject the evidence.

In the trial no effort was made by the government to use the paper evidence found in Hills’ office, and addressed to Chicco, until the defendant Chicco had gone on the stand as a witness in his own behalf. He was then asked if the papers were his, and he denied their ownership or any interest in them, except as to the receipt book, which he claimed to have had some time before, but to have lost.

He does not claim, nor pretend, that they were taken from his person, or that they were taken from property belonging to him, or occupied by him either as his residence or as his office, or in any other capacity.' On the contrary, he particularly disclaimed any connection with or relationship to the premises from which they were obtained. It is difficult, therefore, to understand upon what possible theory it can be said that their possession and use by the government, under the circumstances, was an invasion of his constitutional rights.

In the case of Hills, the keys which he delivered to the officers, upon their demand, were keys which he, himself, testified he had surreptitiously and unlawfully had made for the purpose of enabling him to occupy premises to which he had no right for the storage of liquor.

Without the keys the officers could have obtained access to the premises, and without complaint on his part, for, conceding that the'designation in the search warrant of the premises to be searched as No. 85% Market street would not have availed the officers in a search of No. 85, and even conceding that a search of the latter premises would have been illegal and violative, as against the owner or occupant thereof, of the constitutional inhibition against unlawful search and seizure, still, as was said in the Silverthorne Case (D. C.) 265 Fed. 857, the prohibition there contained (Fourth and^ Fifth Amends. U. S.

Const.) is for the benefit of the person or individual whose rights have been invaded, and, if that be correct, the only person who could have invoked this protection was'the owner of the propérty, the elder Chicco, and certainly not the person who had unlawfully and clandestinely occupied it as a cache for contraband liquor. We think it is perfectly clear, from what has been already said, that no constitutional right of either defendant was violated in the respects mentioned, and that, therefore, no error prejudicial to them, or either of them, was committed by the lower court.

We come now to discuss the other feature of the case, namely, whether the motion for a directed verdict should have been granted as to either defendant. In the case of Hills, the question should, of course, be answered in the negative, for upon the discovery of the whisky he not only immediately claimed ownership thereof, but, in the trial of the case, repeated this claim, without any attempt to show lawful possession. His conviction, therefore, followed as a matter of course. But in the case of Chicco a different condition exists.

The premises in which the whisky was found did not belong to him, and so far as the evidence shows he had no control of the property. He was in business in another part of the city of Charleston, while his residence was in still another part. The whisky seized by the officers had' on it no mark or sign identifying him in any way with its ownership or control.

He was not on the premises at the time the raid was made, and, except that he had been at No. 83% Market street some time before the raid for the purpose of having the property repaired, at his father’s request, there was no evidence showing his use, occupancy, or control of the premises, nor, indeed, that he had been at them at all within a reasonable time before the finding of the liquor.

The entire case, so far as he is concerned, consisted of the introduction in evidence of the three papers mentioned above, which, as has been heretofore stated, were found, not in the room in which the liquor was found, but in the office of the room occupied by Hills. The papers themselves were thoroughly innocuous.

There was nothing about them to indicate or suggest any connection with the liquor, and their whole effect could have had no greater weight than as tending to prove that he had, at some time shortly prior to the raid, left them where they were found; and this presumption is, at most, but prima facie, and hardly attains that dignity upon which the conviction for a crime may alone depend. But, even assuming that they were left there by him, how can such evidence be said to create an irresistible presumption of guilt, or any presumption of guilt?

Hills, who claims possession of the liquor, was in possession of the premises, by right of his tenancy of No. 85%, and by virtue of his illegally obtained key to No. 85. He claims the liquor as his own, and only the suspicion of the arresting officers that Chicco was his partner in the unlawful enterprise, supported alone by the finding in a separate room of three inconsequential and unimportant papers, developed for submission to the jury.

In the case of Murphy, the other defendant, the jury acquitted him, yet he was seen driving from the place when the officers arrived, and his coat was found hanging in the office. The case against Chicco had neither of these circumstances to- weigh against his presumption of innocence, and in both cases there was altogether lacking that degree of certainty of guilt which would alone justify a conviction.

Indeed, we may go further and say that we think there was no real substantive evidence on which the case of Chicco should properly have been submitted to the jury, or, if submitted to the jury on proper instruction as to the burden of proof imposed upon the government in criminal cases, and the presumption of innocence in the accused, no other result could or ought to have followed than a verdict of acquittal.

We feel therefore constrained to conclude that the motion for a directed verdict as to Chicco should have been granted, or that, in any event, on the verdict as returned, the court should, of its own motion, have set it aside and granted a new trial. Since this was not done, we must affirm as to Hills, and reverse and grant a new trial as to Chicco. Reversed as to Chicco. Affirmed as to Hills.