273 F2d 412 Chapman v. United States

273 F.2d 412

Elmer Samuel CHAPMAN, Appellant,
UNITED STATES of America, Appellee.

No. 17811.

United States Court of Appeals Fifth Circuit.

Jan. 7, 1960.

J. Sewell Elliott, Macon, Ga., for appellant.

John C. Bracy, Floyd M. Buford, Asst. U.S. Attys., Macon, Ga., for appellee.

Before RIVES, Chief Judge, and TUTTLE and JONES, Circuit Judges.


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The motion for rehearing is denied. The motion contains the following ground:


'3. The Court is most respectfully requested to reconsider its conclusion from the evidence that 'At Bridgeman's Request (Italics) they entered the house * * *' (O.2). Bridgeman testified (R. 164) that he gave his permission conditioned upon 'if it's what I think it is, what it smells like' and only then after the officers asked him for his permission.'


In view of the emphasis which we placed on the fact that the entry was at Bridgeman's request, we think it appropriate to answer this ground of the motion by pointing out that the testimony of the State Officer contained the following passage:


'Q. And did the owner, Mr. Bridgeman, tell you to go in there and see about it and see what was in his house? A. That's right.'


Based on this evidence the trial court found that Bridgeman 'not only consented but asked the officers to go in and see about it.' We think that our conclusion that the officers entered the house 'at Bridgeman's request' is a proper conclusion on this state of the record.