JOHNSTONE v. UNITED STATES, 1 F.2d 928

RUDKIN, Circuit Judge. This is a writ of error to review a judgment of conviction under the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.). The court below denied a motion to suppress certain testimony, admitted testimony over objection, and refused a request for a directed verdict of not guilty. Upon these several rulings, error is assigned.

The testimony on the part of the government tended to show that a sale of intoxicating liquor was made to a federal prohibition agent in room 3 of the Ottawa Hotel, in the city of Seattle, at about 3:30 in the afternoon of December 30, 1922, and 'that payment for the liquor was made to the plaintiff in error; that a second sale was made to the same agent by the plaintiff in error, in person, about 6 o’clock of the same day, in the same room; and a third sale about half an hour later.

At the time of the last sale the officer placed the plaintiff in error under arrest and seized the bottle of liquor and the glasses in which the liquor was served. The motion to suppress described the property as certain intoxicating liquors, certain serving glasses, and certain books of account. The only liquors or glasses received in evidence were the liquor and glasses seized at the time of the arrest, and so far as the record discloses no books of account were offered or received. It is manifest from this that there was no error in denying the motion to suppress.

The officer simply seized the instruments with which the crime was committed at the time of its commission, and for this no search warrant or other process was necessary. • The testimony objected to consisted of certain statements made to the officers by the plaintiff in error after her arrest. Inasmuch as these statements were made to public officers while the plaintiff in error was under arrest and in custody, it was incumbent on the government to prove that the statements were freely and voluntarily made.

Ordinarily this showing should precede the offer of proof, but inasmuch as the showing was made later the testimony became competent. The motion for a directed verdict was based in part upon the refusal to suppress testimony, and in part upon the claim that the plaintiff in error was entrapped by officers of the government. We have already considered the first question, and the second is wholly without merit. The testimony on the part of the government simply tended to show three sales of intoxicating liquor, and this testimony was controverted by the defense.

Certainly there was no evidence of entrapment in this. The judgment is affirmed.