Opinion
Frank M. Silva, U.S. Atty., and Ben F. Geis, Asst. U.S. Atty., both of San Francisco, Cal.
Ed. F. Jared, of San Francisco, Cal., for appellees.
Before MORROW and HUNT, Circuit Judges.
PER CURIAM.
On the 8th day of January, 1920, one Powers placed a quantity of intoxicating liquor in the home of one Sloan, in the city and county of San Francisco, for safe-keeping. On the following day certain officers of the government, without warrant or authority of law, forcibly invaded the Sloan home and seized and carried away the intoxicating liquor there stored. On the 13th day of January, 1920, an indictment was returned against Powers, Sloan, and others, charging a conspiracy to sell intoxicating liquor for beverage purposes and not for export, in violation of section 37 of the Penal Code (Comp. St. Sec. 10201).
Later the defendant Powers petitioned the court in the conspiracy case for a return of the intoxicating liquor to him, on the ground that the seizure was unlawful, and that the United States attorney proposed to use it as evidence against the accused on the trial of the conspiracy indictment. Upon a hearing had on a show-cause order the court ordered a return of the liquor to Powers, and from that order an appeal as been prosecuted by the United States.
The appellees have moved to dismiss the appeal, on the ground that the order is not final, and therefore no appeal will lie. This
Page 215.
motion must be granted. It is well settled that interlocutory orders such as this are not appealable. Coastwise Lumber & Supply Co. v. U.S., 259 F. 847, 170 C.C.A. 647; U.S. v. Maresca (D.C.) 266 F. 713; Crooker v. Knudsen, 232 F. 857, 147 C.C.A. 51.
The argument on the part of the government that a plenary suit in replevin or claim and delivery might have been instituted for the recovery of the property, and that an appeal or writ of error would lie from the final judgment is beside the question. The court below did not assume jurisdiction for the purpose of trying title or right of possession, but merely to prevent the use of the property wrongfully seized as evidence upon the trial of the criminal charge, and the order directing a return of the property to avoid that result is no more final or appealable than would be any other order excluding testimony on the trial.
Appeal dismissed.