Souza v. United States, 5 F.2d 9 (9th Cir. 1925)

*10 Gilman & Harnden, of Oakland, Cal., for plaintiff in error.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge (after stating the facts as above).

Nearly two years elapsed between the time defendant entered his plea of not guilty and the date of the trial; yet not until the trial was progressing did defendant question the validity of the warrant, or search, or move to suppress, or object to, the use in evidence of the things that had been seized. In view of the fact that the search was made under the authority of a warrant issued by a commissioner, defendant's objections to the validity of the search came too late to avail him.

There was no error in cross-examination of the defendant as to his ownership of the still and other property that was found in the dugout. His testimony on direct examination lacked frankness and reads as though he meant to convey the impression that others might have owned the still. It was proper to rebut any such inference by asking him the direct questions propounded by the court.

It was improper for counsel for the government to ask defendant if he had not been arrested in 1921. Coyne v. United *11 States, 246 F. 120, 158 C. C. A. 346; Glover v. United States, 147 F. 426, 77 C. C. A. 450, 8 Ann. Cas. 1184; Forni v. United States (C. C. A.) 3 F.(2d) 354; Jones on Evidence, § 838. The better rule is that the fact that an unproven charge has been made against one does not tend logically to prove guilt of an offense or to affect the credibility of his testimony. But, as the defendant took the stand in his own behalf and admitted ownership of the still, and the use of the mash in making liquor, and possession of the brandy, he is not in a position to argue that he was prejudiced by the incompetent testimony.

The court sentenced the defendant to pay a fine on the first and second counts and to be imprisoned for one year under the third count. Counsel for the government concede that the sentence under the third count, which was for manufacturing, was in excess of the maximum imprisonment authorized by section 29, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½p), which provides that any person who manufactures in violation of title 2 shall, for a first offense, be fined not more than $1,000 or imprisoned not exceeding six months.

For this error the judgment under the third count must be reversed, and the cause is remanded to the District Court, with directions to enter judgment as authorized by the acts of Congress. As to counts 1 and 2 the judgment is affirmed.