Cain v. United States

• Decision Date: 22 March 1926
• Docket Number: No. 6691.,6691.
• Citation: 12 F.2d 580
• Parties: CAIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

12 F.2d 580 (1926)

CAIN v. UNITED STATES.

No. 6691.

Circuit Court of Appeals, Eighth Circuit.

March 22, 1926.

Donald G. Hughes, of Minneapolis, Minn. (Neil Hughes, of Minneapolis, Minn., with him on the brief), for plaintiff in error.

Lafayette French, Jr., U. S. Atty., and William Anderson, Asst. U. S. Atty., both of St. Paul, Minn.

Before STONE, KENYON, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

Plaintiff in error, hereafter called defendant, was tried and convicted on an indictment charging him with having unlawfully purchased certain derivatives and preparations of opium and coca leaves on the 23d day of August, 1922, in the city of Minneapolis, county of Hennepin, state of Minnesota, the same not being in the original stamped package or from the original stamped package. The assignments of error raise two main questions:

1. Whether defendant's challenge to the entire panel of petit jurors serving at the October, 1923, term, when he was tried, should have been sustained, because they were selected by Joel M. Dickey, clerk of the United States District Court, a member of the Republican party, and John R. Donahue, jury commissioner, a member of the Democratic party, and not a member of the Farmer-Labor party, which was "the principal political party in the district in which the trial court" was held, opposing the party to which the clerk belonged, as required by section 276 of the Judicial Code. This question has been decided adversely to defendant's contention by this court in Brookman v. United States, 8 F.(2d) 803, opinion filed October 12, 1925.

2. Whether there was substantial evidence to sustain the verdict of the jury. The evidence tended to show that about 4 o'clock in the afternoon of the 23d of August, 1922, three detectives of the Minneapolis police force went to the rooms of defendant in the Waldorf Hotel at Minneapolis. In response to their rapping, defendant, clad in his nightclothes, came to the door of the living room and let them in. They entered and passed through the living room into the bedroom, where there were two beds. In one of these they found William Harris asleep. Beside the bed on a chair was found a hypodermic needle and a small pasteboard box containing cocaine (introduced in evidence as Exhibit B). On the dresser they found a small tin box containing morphine (introduced in evidence as Exhibit A). Defendant objected to a search of the premises unless the officers produced a warrant. They had none. While the officers were in the bedroom making a further search, defendant went to his bed and pulled out a gun from under the pillow. The officers took this from him. One of the officers shook Harris and waked him up. When he saw the officer seizing the drugs, he said, "For Christ's sake, don't take it, I want some of it." Both defendant and Harris were arrested and taken to jail. Another search, several hours later, while defendant and Harris were in jail, revealed a bottle containing cocaine, concealed in a davenport in the living room (introduced in evidence as Exhibit C).

The officers testified that defendant at the time denied any knowledge of the drugs found; that he admitted that he was living in the rooms with his wife, but said she was on a visit to her mother. Defendant was not under the influence of the drug at the time when the officers found him, according to their testimony, and there was no direct proof that he was the owner of the drugs, or had any control over them. Defendant took the stand and testified that he at one time had been a user of opium for a disease which he had, but that he had taken "the cure" and was no longer a user; that he had never used morphine or cocaine; that he had pleaded guilty to the possession of narcotics several years prior to the present charge. He denied that he owned or had any control over the drugs found. He denied any knowledge of Exhibit C, but testified that he knew that Exhibits A and B were in his room, and that they belonged to Harris, who had been engaged in repairing defendant's automobile, and had come to his room late on the preceding night, and had spent the night there. At the close...