West v. United States

Ninth Circuit

West v. United States

12 F.2d 776, 1926 U.S. App. LEXIS 3373

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 24, 1926

DocketNo. 4745

StatusPublished

Cited by2 cases

This text of 12 F.2d 776 (West v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

West v. United States, 12 F.2d 776, 1926 U.S. App. LEXIS 3373 (9th Cir. 1926).

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Opinion

HUNT, Circuit Judge.

Writ of error to review a judgment against West, plaintiff in error, who was convicted of unlawful possession of liquor. In usual formal language the indictment charged that at Phoenix, Maricopa county, Ariz., on September 30, 1925, West unlawfully possessed about half a pint of .intoxicating liquor, whisky, contrary to the form of the statute, etc. Three prior convictions were also charged.

The principal assignment relied upon is that the court erred in denying a motion, made just before the jury was impaneled, to suppress “all evidence” obtained under the authority of the search warrant, upon the ground that the search and seizure were unlawful. An affidavit of defendant was filed with the motion. The record contains an affidavit for a search warrant and a warrant issued by a United States commissioner. But the question of the sufficiency of the affidavit and warrant need not be considered, for the record fails to include the testimony that was introduced at the trial, and in no way advises the court whether the evidence sought to be suppressed was admitted. We therefore cannot hold that defendant was prejudiced by the ruling upon the motion.

Defendant moved for a bill-of particulars. The motion was denied, and exception was saved. A motion for a bill of particulars is a matter addressed to the discretion of the court (Dunlop v. United States, 165 U. S. 487,17 S. Ct. 375, 41 L. Ed. 799), and ruling thereon will not be reviewed, unless there has been clear abuse of discretion. As the indictment sufficiently informed defendant of the nature and cause of the action against him, it does not appear that the court abused its discretion in denying the motion. Horowitz v. United States (C. C. A.) 262 F. 48; Kettenbach v. United States, 202 F. 377, 120 C. C. A. 505.

The judgment is affirmed.

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HUNT, Circuit Judge.

Writ of error to review a judgment against West, plaintiff in error, who was convicted of unlawful possession of liquor. In usual formal language the indictment charged that at Phoenix, Maricopa county, Ariz., on September 30, 1925, West unlawfully possessed about half a pint of .intoxicating liquor, whisky, contrary to the form of the statute, etc. Three prior convictions were also charged.

The principal assignment relied upon is that the court erred in denying a motion, made just before the jury was impaneled, to suppress “all evidence” obtained under the authority of the search warrant, upon the ground that the search and seizure were unlawful. An affidavit of defendant was filed with the motion. The record contains an affidavit for a search warrant and a warrant issued by a United States commissioner. But the question of the sufficiency of the affidavit and warrant need not be considered, for the record fails to include the testimony that was introduced at the trial, and in no way advises the court whether the evidence sought to be suppressed was admitted. We therefore cannot hold that defendant was prejudiced by the ruling upon the motion.

Defendant moved for a bill-of particulars. The motion was denied, and exception was saved. A motion for a bill of particulars is a matter addressed to the discretion of the court (Dunlop v. United States, 165 U. S. 487,17 S. Ct. 375, 41 L. Ed. 799), and ruling thereon will not be reviewed, unless there has been clear abuse of discretion. As the indictment sufficiently informed defendant of the nature and cause of the action against him, it does not appear that the court abused its discretion in denying the motion. Horowitz v. United States (C. C. A.) 262 F. 48; Kettenbach v. United States, 202 F. 377, 120 C. C. A. 505.

The judgment is affirmed.

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12 F.2d 776, 1926 U.S. App. LEXIS 3373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-v-united-states-ca9-1926.

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