Appeal from the District Court of the United States for the District of New Jersey; John Boyd Avis, Judge.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
This is an appeal from the District Court for the District of New Jersey. The jury returned verdicts of guilty on the first, fourth, and fifth counts of the indictment. The court, on motions in arrest of judgment, dismissed the fifth count and imposed sentence upon each defendant on the first and fourth counts. The first count charged the defendants with manufacturing intoxicating liquor in violation of the National Prohibition Act, tit. 2, § 3 (27 USCA § 12). The fourth count charged them with making and fermenting mash fit for and intended for distillation in violation of the internal revenue laws (26 USCA § 307).
The defendants urge that, under the provisions of the Willis-Campbell Act, § 5 (27 USCA § 3), a conviction on either count precludes a conviction upon the other. That act provides: "All laws in regard to the manufacture and taxation of and traffic in intoxicating liquor, and all penalties for violations of such laws that were in force on October 28, 1919, shall be and continue in force, as to both beverage and non-beverage liquor, except such provisions of such laws as are directly in conflict with any provision of this title; but if any act is a violation of any of such laws and also of this title, a conviction for such act or offense under one shall be a bar to prosecution therefor under the other."
Two separate and distinct offenses were charged in the counts under review: The manufacture of intoxicating liquor in violation of the National Prohibition Act, and the making and fermenting of mash in violation of the internal revenue laws. The two offenses are not one and the same, nor are they in conflict with each other. Convictions on both counts are therefore not in violation of the provisions of the Willis-Campbell Act.
The next contention is that the evidence relied upon by the government to sustain the convictions was obtained by means of an unlawful search. The prosecution was based upon testimony of prohibition agents and investigators that they detected the odor of fermenting mash emanating from the premises in which the defendants were later arrested, and that they heard the sound of machinery and the hiss of steam. They thereupon entered the premises without a search warrant and found a still in operation, 2,000 gallons of alcohol, and 45,000 gallons of mash in the process of fermentation.
The defendants assign as error the refusal of the trial court to suppress the introduction of any evidence discovered during the raid. They contend that the search and seizure were illegal because made without a search warrant. We do not deem it necessary to determine whether the search and seizure, made under the circumstances which existed in the instant case, would have been legal if any one shown to be an owner or tenant of the premises searched had raised the question. It was part of the defendants' case that they were employees and not owners or tenants of the premises entered and searched.They, therefore, are not in a position to avail themselves of the protection afforded by the Fourth Amendment to the Constitution.
It has been consistently held in the various circuits that the guaranty of the Fourth Amendment against unreasonable search and seizure is a personal right or privilege, available only to one who claims ownership or possession of the property which has been subjected to the alleged unreasonable search or seizure. This court so held in Chepo v. United States, 46 F.2d 70. The question was determined in the same way by the Second Circuit in Connolly v. Medalie, 58 F.2d 629; by the Fifth Circuit in Cantrell v. United States, 15 F.2d 953, certiorari denied 273 U.S. 768, 47 S. Ct. 572, 71 L. Ed. 882; by the Sixth Circuit in Remus v. United States, 291 F. 501; by the Eighth Circuit in O'Fallon v. United States, 15 F.2d 740, certiorari denied 274 U.S. 743, 47 S. Ct. 587, 71 L. Ed. 1321; and by the Ninth Circuit in Bilodeau v. United States, 14 F.2d 582, certiorari denied 273 U.S. 737, 47 S. Ct. 245, 71 L. Ed. 866.
Since no constitutional right of the defendants has been invaded, they are not in a position to attack the legality of the search and seizure. With this question disposed of adversely to the contention of the defendants, the record discloses that there was ample evidence to justify the jury in returning the verdicts of guilty.
Some emphasis is placed by the defendants upon an alleged illegal exploratory search of their clothing made by prohibition agents. The authorities submitted, however, are inapplicable in view of the fact thatthe testimony upon which the defendants rely does not sustain their contention that the prohibition agents searched their clothing.
We find no substantial error in the charge of the court.
The judgments are affirmed.
BUFFINGTON, Circuit Judge ...