201 F.2d 715 (8th Cir. 1953), 14654, Walder v. United States

Docket Nº:14654.
Citation:201 F.2d 715
Case Date:February 19, 1953
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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201 F.2d 715 (8th Cir. 1953)




No. 14654.

United States Court of Appeals, Eighth Circuit.

February 19, 1953

Sam Walder, pro se.

Sam Wear, U.S. Atty., Kansas City, Mo., and William Aull, III, Asst. U.S. Atty., Lexington, Mo., for appellee.

Before SANBORN, WOODROUGH and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

The appellant was indicted, tried, convicted and sentenced to a term of years in prison, and he appeals. At the close of the evidence he moved for a judgment of acquittal and after judgment was rendered he moved for a new trial. Both motions were overruled. In his brief he asks that the judgment be reversed and that he 'be granted such other and further relief as may seem proper.'

The indictment is in four counts. Each count charges a violation of the Anti-Narcotic Act, 26 U.S.C. § 2554(a). The statute reads:

'It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs mentioned in section 2550(a) except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary.'

Section 2550(a) mentions opium and any compound, salt, derivative or preparation thereof.

Count I of the indictment charged a sale and transfer of 5 grains of heroin, a derivative of opium, on January 10, 1951; count II charged a sale of 10 capsules containing 12 grains of heroin on April 11, 1951; count III charged a sale of 10 capsules containing 11 1/2 grains of heroin on April 12, 1951; and count IV charged the sale of 8 capsules containing 10 grains of heroin on May 8, 1951, all within the jurisdiction of the court, and all in violation of the Act.

Appellant pleaded not guilty and was tried to a jury. He was represented at the trial by able counsel, but he appears in this court pro se. He seeks reversal upon two grounds: 1. That the court erred in admitting certain evidence, and 2. That the United States Attorney's argument to the

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jury was improper and was calculated to mislead the jury.

The contentions of the appellant do not challenge the sufficiency of the evidence to support the verdict of the jury. The Government introduced evidence, not criticized on this appeal, which abundantly supports the verdict of conviction on each of the four counts of the indictment. The first contention on this appeal relates to evidence introduced by the government in rebuttal for the purpose of impeaching the credibility of the appellant. When the government rested the appellant testified in his own behalf. In answer to questions propounded to him by his attorney, he testified that he had 'never sold any narcotics to anyone in my life'; that he had never had any narcotics in his possession, other than what had been given to him by a physician for an ailment; that he had never handled or given any narcotics to anyone as a gift or in any other manner; and that he had never acted as a conduit for the purpose of handling what he knew to be a narcotic from one person to another.

On cross-examination in answer to questions by the district attorney the appellant repeated these denials. He then testified that in the month of February, 1950, he was living in Apartment 3 in an apartment house in Kansas City, and that he had seen Mr. Witt and Mr. Follmer, agents of the Bureau of Narcotics of Kansas City. He was then asked and over the objection of his counsel answered the following questions:

'Q. Do you recall going to your apartment with them on the evening of February 19th or early in the morning of February 20, 1950? A. Yes.

'Q. Now, when you arrived at that apartment * * *, I will ask you, Mr. Walder, whether or not you turned over to them 1 grain of heroin? A. I did not.

'Q. Now I ask you if on that occasion prior to arriving you stated to these officers that should they find any narcotic drugs in this apartment, that they were your property and your wife, Freda, was in no way responsible for any drugs which might be found? A. I don't recall any such conversation.

'Q. Do you deny that? A. I deny.'

These questions were objected to by counsel for the appellant; and in a discussion of the question thus raised, not in the presence of the jury, it developed that on the occasion referred to in February, 1950, the appellant was arrested by the two officers who accompanied him to his apartment for the purpose of searching his premises for narcotics and that after their arrival at the apartment the appellant 'to avoid tearing things up' voluntarily delivered to the officers one capsule containing 1.1 grains of heroin.

Subject to the same objection and to the same ruling, the appellant then denied that on that same evening he told the officers on the way to his apartment 'that should they find any narcotic drugs there that the same were his property and that his wife was in no way responsible for any drugs which might be found there.'

The court then said to counsel for the appellant: 'if you...

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