United States v. Lot of Wine At 1914 Daly Ave.

S.D. New York

United States v. Lot of Wine At 1914 Daly Ave.

31 F.2d 495, 1928 U.S. Dist. LEXIS 1719

CourtDistrict Court, S.D. New York

DecidedApril 3, 1928

StatusPublished

Cited by5 cases

This text of 31 F.2d 495 (United States v. Lot of Wine At 1914 Daly Ave.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Lot of Wine At 1914 Daly Ave., 31 F.2d 495, 1928 U.S. Dist. LEXIS 1719 (S.D.N.Y. 1928).

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Opinion

THACHER, District Judge.

It being stipulated that the search was unlawful, seizure of the res necessarily falls, and this entire proceeding, together with the right to hold the res, falls with it. U. S. v. Specified Quantities of Intoxicating Liquors [496]*496(C. C. A.) 7 F.(2d) 835. That part of section 33 of title 2 of the National Prohibition Act (27 USCA § 50), which imposes upon one who possesses liquor in his home the burden of proving “in any action concerning the same” the legality of his possession, can have no application here, because in legal effect and within the meaning of the statute there is no action pending. U. S. v. A Quantity of Intoxicating Liquors (D. C.) 289 F. 278. Consequently, no burden is imposed upon the claimant, from whom the res was unlawfully taken, to prove the legality of his possession.

Motion granted.

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THACHER, District Judge.

It being stipulated that the search was unlawful, seizure of the res necessarily falls, and this entire proceeding, together with the right to hold the res, falls with it. U. S. v. Specified Quantities of Intoxicating Liquors [496]*496(C. C. A.) 7 F.(2d) 835. That part of section 33 of title 2 of the National Prohibition Act (27 USCA § 50), which imposes upon one who possesses liquor in his home the burden of proving “in any action concerning the same” the legality of his possession, can have no application here, because in legal effect and within the meaning of the statute there is no action pending. U. S. v. A Quantity of Intoxicating Liquors (D. C.) 289 F. 278. Consequently, no burden is imposed upon the claimant, from whom the res was unlawfully taken, to prove the legality of his possession.

Motion granted.

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31 F.2d 495, 1928 U.S. Dist. LEXIS 1719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lot-of-wine-at-1914-daly-ave-nysd-1928.

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