
    UNITED STATES, Plff., v. JESUS HENRIQUEZ RIVERA AND FRANCISCO APONTE LUCHETTI, Dfts.
    San Juan,
    Criminal,
    No. 3195.
    Opinion filed June 6, 1924.
    
      
      Mr. John L. Gay, United States District Attorney, for tbe United States.
    
      Mr. R. Castro Fernandez and Mr. B. F. S'anchez for tbe defendants.
   OdliN, Judge,

delivered tbe following 'opinion:

After tbe defendants, wbo were charged with a double violation of tbe national prohibitory law, for both unlawful possession and unlawful transportation, bad been convicted of unlawful possession only, their counsel filed on May 20, 1924, a motion for an acquittal, notwithstanding tbe verdict. This motion purports to be verified by one'- of tbe defendants, but an inspection of tbe motion shows that neither of tbe defendants signed it, tbe only signatures being those of tbe counsel. Whether this failure to verify tbe motion was intentional or accidental, this court has no knowledge, and this court also does not pretend to say that tbe misstatement in § 3 of tbe motion was intentional, because it may very well be due to a lack of memory on tbe part of counsel wbo prepared tbe motion. At all events, § 3 of this motion does set forth and allege that tbe undersigned judge at tbe close of tbe trial instructed the jury to tbe effect and in substance that there could be no lawful possession of intoxicating liquor in an automobile; and that if tbe jury believed that tbe automobile was not in motion while tbe liquor was placed therein, tbe jury could bring in a verdict of guilty as to possession only. Now, this statement is entirely incorrect. This court told tbe jury that there could be lawful possession of intoxicating liquor in an automobile, but that tbe burden of proof was upon tbe person asserting sucb lawful possession to show a permit. Of course there is no claim of any permit in the present case. The jury were told that if they believed that tbe car was not in motion at any time while tbe liquor was placed therein, tbe defendants could not be found guilty of transportation.

As a matter of fact, tbe evidence was overwhelming to tbe effect that these defendants were guilty of unlawful transportation and unlawful possession both. There was a little evidence tending to show that tbe liquor which was in the automobile was placed there after the automobile had left the public thoroughfare and had entered the yard surrounding the dwelling house of one of the accused. Of course this court does not pretend to exercise any power in the nature of an X-ray to penetrate the minds of jurors, but the outcome of this case makes it very apparent, that, while the jury were not inclined to go so far as to acquit these defendants of both counts, they agreed upon a compromise verdict which would avoid the forfeiture of the automobile, but would subject the defendants to a fine for possession only.

One of the grounds of this motion is that if the court had not given the instructions as alleged by counsel for the defendants, the jury in all probability would have found the defendants not guilty with regard to possession as well as not guilty with regard to transportation. The answer to this is two fold. First, that the court did not charge the jury as stated; and second, that this court cannot deal with probabilities as to what a jury would have done in the matter of finding a verdict, even if the court delivered the charge which the counsel for the defendants say that the court delivered.

One of tbe grounds of tbis motion is that tbe court'erred in its charge to tbe jury because there can be legal possession of liquor in an automobile that is not in motion and that is inside an inclosure surrounding a private residence of tbe person who is in possession of tbe automobile, and of tbe liquor. Tbis statement is what is known as a half truth. There can be legal possession of liquor in an automobile that is standing still, provided the person who places the liquor in said automobile is in lawful possession of tbe liquor and has a permit to move it. As above stated, there is no evidence whatever of any permit. In making tbis statement of the law, of course I am not overlooking tbe fact that one person wishing to do injury to another person may place liquor surreptitiously in tbe automobile of tbe latter. When an act of tbis kind is done, of course tbe party owning tbe automobile, when be finds tbe liquor there, sometimes retains possession of it and sometimes gets rid of it. In tbe former case be becomes guilty tbe moment that be deliberately takes possession of that liquor for bis own use and retains it; in tbe latter case, where be seeks to get rid of it by notifying tbe authorities of tbe law or by destroying it, be of course is not guilty.

Assuming, as we must assume, that tbe jury in the present case found that tbe automobile came down tbe public street empty instead of full of liquor, and that tbe liquor was placed in the automobile after tbe machine entered tbe yard where tbe officers found it, it does not necessarily follow that a search warrant was necessary to make tbe seizure of tbis liquor legal. Counsel for tbe defendants argue that because tbe defendants were acquitted of transportation tbe conclusion must follow that these defendants could not be properly convicted of illegal pos- ■ session, because tbe possession of the liquor and the transportation thereof were parts of the same transaction. In other words,, in § 8 of the motion they virtually admit the act of transportation, in spite of the fact that the jury acquitted their clients of that offense. This court is of the opinion that under the circumstances of this case a search warrant was not necessary, and I base this ruling very largely upon a recent opinion of the Supreme Court of the United States, [265 U. S. 57, 68 L. ed. 898, 44 Sup. Ct. Rep. 445] which was delivered on May 5, 1924, in the case of Hester v. United States. This case was carried to the Supreme Court of the IJnited States upon a writ of error from the United States district court for the western district of South Carolina. It involved the question of the construction and meaning of the 4th Amendment to the Federal Constitution, prohibiting unreasonable search and seizure. The accused man was arrested without any warrant upon the open fields of his farm where he had thrown away a container of liquor in an attempt to escape from the ofiicers of the law. It appears from the newspaper account of this decision, which is the only one available at this time, that the trial court admitted the evidence of the liquor seized when the arrest was made. Counsel for Hester contended that this evidence was inadmissible, and that its introduction in evidence violated the 4th Amendment. The Supreme Court sustained the ruling of .the district judge and stated that the term “houses,” as used in the 4th Amendment, had never been held even at common law to include the open fields surrounding a dwelling house.

Hence it is clear that when the officers of the law in the case now under consideration had reason to believe that this automobile was. engaged in the unlawful transportation of liquor, and were unable to stop its progress and seize the machine before it entered the yard of the .defendants, they had a perfect right to enter and make the seizure of the liquor when they found it in the automobile inside the yard but not in motion.

Hence the present motion of the defendants for an acquittal notwithstanding the verdict must be denied, and it is so ordered.

To this ruling counsel for the defendants except.

Done and Ordered in open court at San Juan, Porto Pico, this 6th day of June, 1924.  