Koth v. United States , 16 F.2d 59 ( 1926 )

16 F.2d 59 (1926)

KOTH
v.
UNITED STATES.

No. 4923.

Circuit Court of Appeals, Ninth Circuit.

November 29, 1926.

Robertson & Paine, of Spokane, Wash., for plaintiff in error.

H. E. Ray, U. S. Atty., and Sam S. Griffin and William H. Langroise, Asst. U. S. Attys., all of Boise, Idaho.

Before GILBERT and RUDKIN, Circuit Judges, and NETERER, District Judge.

NETERER, District Judge (after stating the facts as above).

It was not error to receive this evidence. The most that can be said is that the officers were trespassers. Raine v. United States (C. C. A.) 299 F. 407. The court did not err in denying the motion to elect. Congress has power to define offenses and what act shall constitute an offense, and from the pleadings it appears that neither is necessarily or at all included in any of the others. Raine v. United States, supra; Earl v. United States (C. C. A.) 4 F.(2d) 532; Singer v. United States (C. C. A.) 288 F. 695; Bell v. United States (C. C. A.) 285 F. 145; Foster v. United States, 256 F. 207, 167 C. C. A. 423. Nor did the court err in the imposition of sentence under the several counts. The sentence imposed upon counts 1, 2, and 4 did not exceed that which might have been imposed on count 4. There was but one sentence. It was a permissible sentence on count 4.

While count 2, charging possession of property designed for the manufacture of intoxicating liquor at a certain time and place, is merged with count 3, unlawfully manufacturing intoxicating liquor at the same time and place, and count 1, charging possession of intoxicating liquor from the same liquor manufactured in count 3, or transported in count 4, and merged in either one or both (Reynolds v. United States [C. C. A.] 280 F. 1; Morgan v. United States [C. C. A.] 294 F. 82; Tritico v. United States, 4 F.[2d] 664; Patrilo v. United States [C. C. A.] 7 F.[2d] 804; Rouda v. United States [C. C. A.] 10 F.[2d] 917; Dexter v. United States [C. C. A.] 12 F. [2d] 777), no sentence is resting on either count 1 or 2. "Where conviction is had upon more than one count, the sentence, if it does not exceed that which might be imposed on one count, is good if that count is sufficient." Kuehn v. United States (C. C. A.) 8 F.(2d) 265; Wetzel v. United States, 233 F. 984, 147 C. C. A. 658.

The search was not unreasonable. It was upon open premises. "The special protection accorded by the Fourth Amendment to the people in their ``persons, houses, papers, and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law." Hester v. United States, 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898; Raine v. United States, supra. The officers were more than a quarter of a mile from the premises, smelled fermenting mash and fumes of distilling then in progress, and saw a drunken man approach from the direction of the still. Vaught v. United States (C. C. A.) 7 F.(2d) 370; United States v. Borkowski (D. C.) 268 F. 408; United States v. McBride (D. C.) 287 F. 214. The fact that the officers may have been trespassers does not exclude the evidence, after what they saw, heard and smelled. Raine v. United States, supra; Vaught v. United States, supra; Hester v. United States, supra; United States v. McBride, supra; Schulte v. United States (C. C. A.) 11 F.(2d) 105.

Whether the court erred in defining a nuisance depends upon section 21, title 2, of the National Prohibition Act (Comp. St. § 10138½jj). In "any room, house, building, boat, vehicle, structure or place," the word "place" expresses simply locality and not kind. It is an expansive term. It may be synonymous with house, city or town. Inhabitants of Palmer v. Wakefield, 102 Mass. 214. "``Place,' as used in a city ordinance fixing penalty for disorderly conduct in any street, house, or place," implies a definite locality of the some kind or nature or character. Barton v. City of La Grande, 17 Or. 577, 22 P. 111. Qualifying words and terms are necessary to indicate the place. "The word ``place' is a very indefinite term. * * * It may be used to designate a country, state, county, town, or a very small portion of a town. The extent of the locality designated by it must, generally, be determined by the connection in which it is used." Law v. Fairfield, 46 Vt. 432, 453.

It is clear that the word "place" does not refer to a city, town, or township, and must be determined in the connection of its use, and, under the rule of ejusdem generis, the word "place" in this section, following the special words, "room, house, building, boat, vehicle, structure," is limited to the things of the same kind, something with walls or defined tangible limits, as described by the special words. Hills v. Joseph, 229 F. 865, 144 C. C. A. 147; First Nat. Bank of Anamoose v. United States, 205 F. 374, 124 C. C. A. 256, 46 L. R. A. (N. S.) 1139. See, also, In re Crook (D. C.) 219 F. 979, at page 986; U. S. v. 1,150½ Lbs. Celluloid, 82 F. 627, 27 C. C. A. 231; Crowther v. Fidelity Ins. Trust & Savings Deposit Co., 85 F. 41, 29 C. C. A. 1; Ex parte Carson, 243 P. 260. It is not continuity of conduct, but the place in which it is done.

The judgment is affirmed, except as to count 6, and as to that is reversed and remanded for further proceedings.