Libera v. United States

299 F. 300, 1924 U.S. App. LEXIS 2575

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 5, 1924
• Docket: No. 4168
• Status: Published

Opinion

RUDKIN, Circuit Judge.

The amended information in this case contains four counts — the first; charging the unlawful possession of a still designed for the manufacture of intoxicating liquor; the second, charging the maintaining'of a comiqon nuisance; the third, charging the unlawful possession; and the fourth, the unlawful sale of intoxicating liquor. A judgment of conviction on the first three counts is now before us on writ of error.

Before the trial the plaintiff in error petitioned the court for the return of property seized under a search warrant, on the ground that the search was unauthorized and illegal. The search warrant was of doubtful validity, because of a mistake in the name of the street and in the name of the owner or occupant of the premises; but the plaintiff in error took the witness stand in his own behalf, and admitted the possession of the still and the possession of the intoxicating liquor, as charged. In short, he admitted every material fact testified to by the raiding officers, and is now in no position to claim that incompetent testimony was admitted to establish facts testified to by himself.

A plea of guilty was first interposed, but later that plea was withdrawn, by leave of court, and a plea of not guilty 'substituted. The plaintiff in error contends that the court below erred in permitting the attorney for the government to comment upon the change of pleas; but here again he is met with the answer that the fact that a plea of guilty had been entered was first called to the attention of the jury by his own counsel. . <>

The objections to the charge of the court are without merit, and, finding no prejudicial error in the record, the judgment is affirmed.