personal conviction of the wrongdoer for the offense charged, the remedy of forfeiture claimed is plainly one of a civil nature as the conviction of the wrongdoer must be obtained, if at all, in another and wholly independent proceeding. The Supreme Court repeated what Judge Story said about forfeitures not attaching at common law in many cases of felony where the proceeding was in rem, until the offender was convicted, and that said rule was never applied to seizures and forfeitures created by statute in rem cognizable on the revenue side of the Exchequer Court for the reason that the thing in such a case is primarily considered as the offender, or rather that the offense is attached primarily to the thing whether the offense be malum prohibitum or malum in se.
It has been held directly by the Supreme Court that: "A forfeiture proceeding under Rev.St. § 3257 or § 3281
is in rem. It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient."
The forfeiture which the government seeks to establish in this matter is not personal. It does not depend on the conviction of Stephen E. Hall or any other person and the proceedings do not abate by reason of the death of Stephen E. Hall.
The evidence offered by the government and uncontradicted by the claimant discloses that on May 18, 1940, agents of the Alcohol Tax Unit, Bureau of Internal Revenue placed themselves in the woods directly behind the rye field on the Eliott Hall Farm and from the place selected they saw activity about the shed attached to the horse barn, and they smelled the odor of mash.
On May 19, 1940, from property to the west of the rye field the agents were able to see men moving about the farm and through an open doorway leading into the shed attached to the horse barn they saw part of a still and they smelled the odor of mash. On May 21, 1940, from the same property they saw a man in the doorway of the shed attached to the horse barn and through the doorway they could see something resembling a fermenter, and they smelled the odor of hot fermenting mash.
The man in the doorway was the first person they had seen in the shed where the law was being violated, and in an attempt to arrest him they entered upon the Eliott Hall Farm from different directions. When the agents arrived at the shed he had disappeared and could not be found. The attempt to arrest said man even though it did not meet with success because he escaped, is sufficient to validate the search. If they had succeeded in arresting him the search could have been made at the time of the arrest and as an incident thereto.
The fact that he eluded arrest should not make the seizure illegal and a violation of the Fourth Amendment to the Constitution of these United States.
The observations which the agents made on May 19 and 21, 1940, and the fact that they saw part of a still, vats and smelled the odor of hot fermenting mash was sufficient to justify reasonably prudent persons in believing that a crime was being committed in and upon the Eliott Hall Farm and to establish probable cause for the action taken.
In ruling on the legality of the search the court recognizes the right in Mr. Hall as owner to question same. While the protection granted by the Fourth Amendment to the Constitution is purely personal and only the person whose constitutional rights have been violated can complain, Mr. Hall, as owner, had a sufficient proprietary interest upon which to question the search and seizure.
According to Mr. Shubert, the manager of Eliott Hall Farm, Mr. Hall was the one who told him to move the machinery out of the shed attached to the horse barn because he had rented it for storage purposes, and later when he saw a hole 40 feet from the west of the cow barn and about 100 feet from the pump house, he reported this to Mr. Hall, who admitted that he knew all about it, and when he smelled an odor which persisted over many days and was more noticeable on rainy days, and commented thereon to Mr. Hall, Mr. Hall replied "I'll bet it don't stink as bad as that old apple used to." This evidence has not been successfully challenged nor discredited and it establishes that Mr. Hall knowingly suffered or permitted the business of a distillery to be carried on upon his property.
The only question which remains is: How much of the Eliott Hall Farm has the government connected with the distillery operation?
The government has established that the private lane from 1,200 to 1,300 feet in length leading from the public road to the barnyard was used for ingress and egress to the shed where the still was located, that said shed and the horse barn to which it was attached and the sheds at the westerly end of said horse barn and running therefrom in a southerly direction housed the still and parts and things used in connection with the still and the pipe line for water ran from said sheds and barn approximately 750 feet to a point in the brook for the purposes of supplying water to the still and the aforesaid lane, sheds, barn and land adjacent thereto, and land over which and through which the pipe line travelled were connected with or related to the distillery operation.
A distillery was being operated on the Eliott Hall Farm on May 21, 1940. Proof that the required bond had been given was not offered during the trial and it is found that Section 2833
was being violated on the date and at the time and place in question.
The private lane (Exhibits C-1, C-2, and C-3), barn (Exhibit C-5), shed attached to the barn (Exhibit C-9), sheds attached to the barn at the westerly end thereof and running southerly therefrom (Exhibit C-6), and land adjacent thereto, and land over which and through which the pipe line for water travelled from the sheds shown in Exhibit C-6 to a point approximately 750 feet therefrom, are forfeited in accordance with the prayer in the amended libel.