Walder v. United States

Decision Date19 February 1953
Docket NumberNo. 14654.,14654.
Citation201 F.2d 715
PartiesWALDER v. UNITED STATES.
CourtU.S. Court of Appeals — Eighth Circuit

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 11½ 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 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 criticised 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 I 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 hadn't * * * asked him whether or not he had ever had anything to do with narcotics or any connection with them, then the court would have been compelled under the law to sustain the objection * * * But you opened it up by asking whether or not he had ever had anything to do with narcotics and as a result of that answer `No', then * * * it becomes competent to show that he did have something to do, that he did possess narcotics. I think you could show a prior sale of narcotics in order to impeach him as to that particular statement. It goes to his credibility * * *. The court will say to the jury that this testimony is not admitted for the purpose of showing the guilt of the defendant with respect to these particular sales * * * it is simply by way of impeachment as to the credibility of the witness." The court so instructed the jury at the time the evidence was admitted and again in his final instructions.

The court explained, not in the presence of the jury, that the appellant was indicted for the offense which he committed in 1950, and that when that case came on for trial the evidence discovered by the narcotic agents by their going to appellant's apartment to make a search for narcotics without a search warrant was rejected by the court on the ground that it was obtained by an illegal search, and the indictment was dismissed and the appellant was discharged.

Counsel for the appellant then explained his position in the present case as follows: "* * * if that evidence was incompetent and inadmissible at that time to prove this man's guilt * * *, then that evidence is now at this time totally incompetent * * *, and it is again in violation of this man's constitutional rights to attempt to use evidence of that transaction for the purpose of impeachment in this case * * *"

In rebuttal officer Witt testified without further objection that on February 19th or the early morning of February 20, 1950, the appellant accompanied him and officer Follmer and two deputy sheriffs to appellant's residence and that on the way appellant told them that should they find any narcotic drugs they were his property and not his wife's, and that after they arrived at the residence appellant delivered to...

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4 cases
  • U.S. v. Hooks
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 2, 1986
    ...at it? A. Yes. Record, vol. 3, at 128-29. A prosecutor may properly argue facts brought out on cross-examination, Walder v. United States, 201 F.2d 715, 717-18 (8th Cir.1953), affirmed on other grounds, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), and a......
  • Cannito v. Sigler
    • United States
    • U.S. District Court — District of Nebraska
    • January 8, 1971
    ...had been received solely for the purpose of impeaching the defendant's credibility. The Court of Appeals for the Eighth Circuit affirmed. 201 F.2d 715. The Supreme Court of the United States, speaking through Mr. Justice Frankfurter, also affirmed, saying: "It is one thing to say that the G......
  • United States v. Rojas
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 27, 2016
    ...this instruction, we find that the court did not abuse its discretion by admitting the challenged evidence. See Walder v. United States , 201 F.2d 715, 717 (8th Cir. 1953), aff'd , 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (holding that evidence obtained in an illegal search was admiss......
  • Walder v. United States
    • United States
    • U.S. Supreme Court
    • February 1, 1954
    ...the defendant's credibility. The defendant was convicted and the Court of Appeals for the Eighth Circuit affirmed, one judge dissenting. 201 F.2d 715. The question which divided that court, and the sole issue here, is whether the defendant's assertion on direct examination that he had never......

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