Hargett v. United States

• Decision Date: 05 August 1950
• Docket Number: No. 13028.,13028.
• Parties: HARGETT et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

183 F.2d 859 (1950)

HARGETT et al. v. UNITED STATES.

No. 13028.

United States Court of Appeals Fifth Circuit.

August 5, 1950.

Roy L. Smith, Phenix City, Ala., J. A. Walker, Jacob Walker, Jr., Opelika, Ala., A. L. Patterson, Phenix City, Ala., for appellants.

Hartwell Davis, Asst. U. S. Atty., Montgomery, Ala., for appellee.

Before HOLMES, WALLER, and BORAH, Circuit Judges.

WALLER, Circuit Judge.

The sequence of events that occurred in and around that home of Pete Hargett in Phenix City, Alabama, on the afternoon of March 3, 1949, demonstrates that the oft-repeated statement that one is presumed to have intended the natural and normal consequences of his act cannot be universal in its application.

Although Grady Cook, an Alcohol Tax Unit Investigator from Columbus, Georgia, was a stranger to Pete Hargett, the latter's penchant for handling illegal liquor and his other activities in contrariety to law were not unknown attributes to Cook who, with two state revenue officers, on the occasion in question, in returning from a mission for the purpose of identifying an inmate in jail at Opelika, concluded that while in the vicinity of Phenix City the time was propitious to ride by the Hargett home to see whether or not they could locate, in and around his premises, certain automobiles that the officers thought had been involved in the running of illegal liquor. On account of the fact that several cars were parked in the yard of, and in the streets adjacent to, the Hargett home, the investigation was prolonged, so while Cook drove the car several times around the square and by the house, one of the revenue agents undertook to write down the license tag numbers, while the other took note of the make and model of the various cars. The agents in thus circling the house aroused either the curiosity, apprehension, or ire of Pete, his brother, Guy, and another alleged to be the appellant, Beck, with the result that when the agents, in making their fourth trip around the place, approached the intersection of the narrow street on the west side of the Hargett house, a black Ford, driven by some person then unknown to the officers, turned into that street, followed by Cook's car. When the black Ford had gotten opposite the Hargett place, it stopped and backed diagonally across the street, thus blocking passage by the officers. In order that the blockade would be more effective, the driver of the Ford thereupon alighted, pulled an automatic pistol from his belt, and, with same drawn, — but not pointed at the officers — stood beside his car. At or about this juncture reinforcements in the persons of Pete Hargett and his brother, Guy, — according to the testimony of Officer Cook — appeared in the front yard. The yard was raised two or more feet above the street level, but the officer testified that by bending over and looking up he could see that Pete had a revolver in his hand, while Guy had a pistol in a holster hung on his left hip. When Pete called out, "What the hell do you want?" Cook replied, "This is G. C. Cook, Federal officer. I am just riding around. Get that car out of the street." Upon the announcement that the circling car contained a Federal officer, the driver of the black Ford put his pistol back in his belt, got in the Ford and sped rapidly away. The officers pursued, but failed to overtake him.

The evidence is undisputed that the Hargett brothers thereupon went back into the house. The armed man standing beside the Ford was later identified as Beck, one of the appellants. Although the testimony of the officer is that all three of the men were armed, and that Beck and Pete Hargett each had a pistol in his hand, there is no testimony that either of them ever pointed it at the officers or threatened to shoot them, and no hostile act, word, or gesture was ever made by either of the three men after learning that a Federal officer was an occupant of the car.

It should now be stated that at the time the Federal officer and his assistants were circling the Hargett premises, a lottery, contrary to the laws of Alabama, was being conducted within. In that home, revealed by the photographs to be roofed with tin and of exceedingly humble type and proportions, there was a sum in excess of $30,000 in cash, according to the uncontradicted testimony of the defendant, Hargett. Investigator Cook admitted that there was a stack of money "this high" on the table. The evidence establishes without contradiction that several witnesses had noticed a car in which three men were continuing to circle and to display an odd interest in the premises and that these witnesses had called Pete Hargett's attention to that phenomenon.

Pete testified that he became apprehensive that someone was preparing to rob him.¹ Since the evidence is undisputed that he had no knowledge that any officer was in the circling car, and since at that time there were large sums of money in the house — later taken into possession by the Sheriff's officers — this apprehension would appear to be quite reasonable.

The evidence shows without dispute that when these men learned that a Federal officer was in the automobile no resistance or hindrance was thereafter made — on the contrary one of the appellants left the scene in great haste and clearly demonstrated that he wanted no traffic at all with Federal officers. Upon this evidence Pete Hargett and Beck were convicted of forcibly assaulting, resisting, opposing, impeding, intimidating, and interfering with "Grady Cook, an investigator of the Alcohol Tax Unit, of the Treasury Department of the United States, while engaged in the performance of his official duties, and in the commission of such act the defendants did use deadly and dangerous weapons" as denounced by Section 111, Title 18, U.S.C.A.²

In view of the undisputed evidence that neither of the defendants knew, or had any reason to suspect, that there was a Federal officer in the car which had persistently circled the house; that the inquisitiveness displayed by the occupants of the circling car was such as was calculated to arouse an apprehension of an attempted robbery; plus the uncontroverted fact that the men ceased all resistance when the official identity of one of the occupants of the car was made known; we have been impelled to scan the record critically in order to see if there is any substantial basis for a finding of guilty. Our study of the record convinces us that the case was, in no inconsiderable part, tried upon Pete Hargett's extensive criminal record, in the presentation of a portion of which the prosecuting attorney seemed to display more zeal for a conviction than for the application of the appropriate rules of evidence.

Hargett, on cross examination, readily admitted to the prosecuting attorney: that in 1933 he was convicted of a conspiracy to violate the National Prohibition Act and sentenced to two years in the penitentiary; that in 1937 he was convicted of robbery at Columbus, Georgia, and sentenced to an imprisonment of five to ten years; that in Raleigh, North Carolina, he was convicted of burglary with explosives and received a sentence of seven to ten years; that in 1945 in Opelika, Alabama, he was convicted of violating internal revenue laws and sentenced to serve two years; and that he was also convicted of assault and battery in Columbus, Georgia, and received a sentence of one year and a fine of $500, which, in the words of the prosecuting attorney, was "for the same type of offense you are charged with here"; and that he, at that time, had two cases the type of which is not specified pending against him. Notwithstanding the fact that these admissions must have hopelessly damned Hargett's credibility in the minds of the jury, the prosecuting attorney was not content thus to let the admitted convictions of felonies serve their fulfilled and only purpose of impeaching his credibility, but he, over objection, went into the lurid details of the instance in Columbus, Georgia, in 1947, when Guy and Pete Hargett, with pistols in hand, stood off two city policemen who sought to arrest them and for which act Pete had previously testified that he had been convicted and had received a sentence of two years. One of these two policemen was put on the stand in order to present the thrilling details that led to the conviction that Pete had already freely admitted. It, therefore, seems that the policeman's testimony was injected into the case solely for the purpose of prejudicing the jury. Indeed, the prosecuting attorney, when objections were interposed and disregarded, stated: "I just wanted to show his violent, turbulent, blood-thirsty nature and disposition in regard to officers, if Your Honor please. It is just the same type of thing he is charged with here." This, notwithstanding the fact that Hargett had not put his character in issue.

Not content with having gone into the stirring details of this offense in Columbus, the prosecuting attorney then was allowed to show by the defendant that when some officer came out in Hargett's neighborhood to serve subpoenas, Hargett undertook to make the officer a present of a sum of money for the purpose of getting the officer to "do what he could in Opelika" for him, although the defendant was in no wise charged with attempting to obstruct justice by bribery.

Thus it was that Hargett, who frankly admitted numerous convictions of felonies, and which convictions were admissible solely for the purpose of impeaching his credibility,³ when put on trial for forcibly resisting, impeding, etc., Grady Cook, an investigator of the Alcohol Tax Unit, in Phenix City, Alabama, on March 3, 1949, was, to all intents and purposes, also put on retrial for resisting the policemen in Columbus, Georgia, on October 18, 1947, in order to show the jury his "violent, turbulent, blood-thirsty nature and disposition in regard to officers."

Even though there are cases involving fraud and the use of the mails...