Schutte v. United States , 21 F.2d 830 ( 1927 )

21 F.2d 830 (1927)

SCHUTTE
v.
UNITED STATES.

No. 4916.

Circuit Court of Appeals. Sixth Circuit.

October 15, 1927.

F. Roland Allaben, of Grand Rapids, Mich. (Dunham & Cholette, of Grand Rapids, Mich., on the brief), for plaintiff in error.

Edward J. Bowman, U. S. Atty., of Grand Rapids, Mich. (Louis H. Grettenberger, Asst. U. S. Atty., of Grand Rapids, Mich., on the brief), for the United States.

Before DENISON and MOORMAN, Circuit Judges, and HICKENLOOPER, District Judge.

PER CURIAM.

Affirmed. In the search of a dwelling made by consent, no search warrant is necessary. Gatterdam v. U. S., C. C. A. 6, 5 F.(2d) 673, 674. As to whether such consent was freely given, there was a question of fact. The court found as a fact that consent was given and without any duress; this conclusion was amply supported by the evidence; no question of law thereon remains for review.

We cannot think that the statute of 1921 (U. S. Code, tit. 18, § 53 [18 USCA § 53]) intended to penalize a search to which the householder voluntarily agreed, much less, to make inadmissible evidence thus found. See U. S. v. Lindsly (D. C.) 7 F.(2d) 247.

Such possession as was here shown may constitute an offense separate from manufacture or sale (Albrecht v. U. S., 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. 505); and by the terms of the act (section 33, National Prohibition Act [27 USCA § 50; Comp. St. § 10138½t]), possession of liquor is prima facie evidence that it was kept for the purposes of sale, and hence that a nuisance was being maintained.

Regardless of the confession to which objection was made, the evidence made guilt practically indisputable.