KAHN v. UNITED STATES, 61 F.2d 910

PEE CURIAM. Appellant Kahn, with three others, -was convicted of violation of the National Prohibition Act (27 USCA). Kahn alone appeals. Careful search of the record fails to disclose substantial evidence whereon to rest the judgment against him. Practically the only item of evidence tending to connect him with the transaction is afforded by one of a number of keys taken from him by the police at the time of his arrest — a key which, it was testified, fitted the lock of an apartment building located on a different street from that where Kahn’s places of business were.

It was testified by the officers that search of Kahn’s places failed to reveal any evidence of law violation, but that with this key the door of the apartment was unlocked and in the apartment was found a considerable quantity of intoxicating liquors. Kahn testified that the keys taken from him were only his automobile key and those of his places of business, and he had no ownership interest in or knowledge of this apartment or of the liquor therein, and there was no contradictory testimony.

The key was not offered in evidence, and, for aught appearing to the contrary, it may have been just an ordinary key such as frequently fits a multiplicity of locks. The officer who kept possession of the keys made no attempt to ascertain whether this one fitted the lock of Kahn’s place, as he testified. This could readily have been done even after Kahn had testified. In this state of the record, we are of opinion that the judgment must be, and accordingly it is, reversed, and the cause remanded to the District Court.