Boehm v. United States

ALSCHULER, Circuit Judge

(after stating the facts as above). The indictment is attacked on the ground that in it the search warrant itself is not set forth, and that in stating its substance it is not charged that it was “duly” issued, or that in substance. Such an indictment does not need to set out in full the search warrant. Blake v. United States, 71 F. 286 , 18 C. C. A. 117 ; Dovel v. United States (7 C. C. A. June *498 18, 1924) 299 F. 948 . But it should be pleaded sufficiently to inform the defendant of the nature of the charge, and protect him from being again put in jeopardy upon it. We believe the case falls fairly within the purview of section 1025, Rev. Stats. (Comp. St. § 1691):

“No indictment found and presented by a grand jury in any District or Circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.”

While the inclusion of the word “duly” in this connection would not have subjected the draftsman to the criticism of undue prolixity, we do not regard its omission as fatal to the pleading.

It is contended that the affidavit on which the search warrant was issued, as it is recited in the search warrant itself which was offered in evidence, does not make such showing as authorized the issuance of the warrant, and that the ease in this respect falls under the rule as stated by this court in Veeder v. United States, 252 F. 414 , 164 C. C. A. 338 . It was there held that, where affidavits do not describe the offenses in the commission of which the property to be seized 'was employed, nor show the relation of the property to any offense with sufficient particularity to enable an issuing magistrate to draw therefrom the necessary legal conclusion which would authorize the issuance of the warrant, the warrant issued thereon is void.

Here the warrant recites an affidavit which states positively that there is located, on the premises used for a soft drink parlor and grocery store, illicit distilling apparatus, coils, unions, condensers, mash, vessels, and utensils in which intoxicating liquor is kept and stored. These are positive statements, which we deem sufficiently definite and circumstantial to authorize the commissioner to issue the warrant, and avoid the infirmity which more recently we pointed out in Jozwich v. United States, 288 F. 831 .

It is urged that Vursell, the prohibition officer, and his deputies to whom the warrant was directed, were not by law authorized to serve such process. This contention has recently had considerable attention at the hands of various federal courts. In the Dovel Case, supra, we had the question before us in just such a ease as the one at bar, and reached the conclusion that federal prohibition agents were “officers” authorized to serve such warrants.

No reversible error appearing to us, the judgment of the District Court is affirmed.