
    No. 326
    MacDANIEL v. UNITED STATES
    U. S. Circuit Court of Appeals, 6th Circut
    Decided Jan. 8, 1924
    333. CRIMINAL LAW — Admission of incompetent evidence, though erroneous, held harmless when fact otherwise proved — Objection to admission of lottery ticket obtained through unlawful search limited to person whose premises were searched — Right to object to admission of unlawfully seized documents in evidence waived by delay in objecting.
   WESTENHAVER, J.

Epitomized Opinion

The plaintiff MacDaniel was indicted along with one MacNabb and one Mulholland for conspiring in violation of Criminal Code Section 213, in that they conspired to use the mails in conducting a baseball lottery. Mac-Nabb and Mulholland entered pleas of guilty and were not tried. MacDaniel was found guilty and sentenced and prosecutes error.

The facts were that Harry Hopf, testifying on behalf of the government, identified certain lottery tickets set forth in the indictment as having been delivered through the mails to one Jansen and also testified that MacNabb had admitted to him that he had mailed the tickets to Jansen. The testimony as to this admission was objected to. Jansen’s testimony, introduced later, showed clearly that these lottery tickets' were in fact mailed or caused to. be mailed by MacNabb and this testimony was not denied.

The witness Hopf also identified other similar tickets which he had obtained by search of Mac.Nabb’s place of business, the search being made pursuant to a search warrant issued without sufficient supporting affidavit.

Hopf also produced and identified documents obtained by searching MacDaniel’s printing office, which documents were admitted in evidence over objection and exception. They were material evidence tending to show that MacDaniel, Mulholland and others were engaged in the criminal conspiracy charged. At the time of the search, MacDaniel was present and when informed what documents were wanted, he aided and assisted in finding them, and at a preliminary hearing before the United States Commissioners, MacDaniel was represented by counsel, at which time the documents were introduced in evidence without objection and the first objection to the use ,of the documents as evidence appears to have been made at the trial.

Attorneys — Robert R. Nevin and Earl H. Turner, Dayton, O., for MacDaniel; James R. Clark, for the United States.

It was contended that Hopf’s testimony as to MacNabb’s admission was not competent against MacDaniel; that the lottery tickets obtained by the illegal search of MacNabb’s place of business was not admissible in evidence against MacDaniel; that the warrant to search MacDaniel’s place of business was void and that the search and seizure was illegal because neither the affidavit nor the preliminary examination of Hopf conformed to statutory requirements and therefore, the documents seized in MacDaniel’s place of business were not admissible.

The Circuit of Appeals held:

That it was immaterial whether the admission of MacNabb, which was admitted in evidence was improper, inasmuch as the error was later cured when the fact which it intended to prove was later proved by Jansen’s testimony which was admitted without objection.

The objection as to the admissibility of documents obtained by search of MacNabb’s place of business, on the ground that it was an illegal search and seizure is not available to MacDaniel but available only to the person whose premises have been illegally searched.

The objection to the introduction in evidence of the documents seized in MacDaniel’s printing office on the ground that the search warrant was illegally obtained was not well taken, inasmuch as MacDaniel had waived it by failing- to object to its introduction before the trial was in progress and voluntarily aiding in conducting the search.

The judgment of conviction was affirmed.  