Aultman v. United States

• Decision Date: 04 May 1923
• Docket Number: 4048.
• Citation: 289 F. 251
• Parties: AULTMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

289 F. 251

AULTMAN et al. v. UNITED STATES.

No. 4048.

United States Court of Appeals, Fifth Circuit.

May 4, 1923

Breedlove Smith, of El Paso, Tex., for plaintiffs in error.

H. R Gamble, Sp. Asst. Atty. Gen. (John D. Hartman, U.S. Atty., of San Antonio, Tex., N. J. Morrisson, Asst. U.S. Atty., of El Paso, Tex., and H. R. Gamble, Sp. Asst. Atty. Gen., on the brief), for the United States.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

The plaintiffs in error, H. O. Aultman and C. W. Warden (herein called defendants), were joined in an indictment with three other persons, Noble, Hughes, and Castro. Castro obtained a severance, and Noble and Hughes pleaded guilty and were witnesses for the government in the trial. Defendants were tried and convicted on the third, fifth, ninth, and tenth counts of the indictment, which, respectively, charged unlawful importation of cocaine into the United States from Mexico, unlawful possession of cocaine, unlawful sale of morphine, and unlawful sale of cocaine. In behalf of defendants it was contended that the court's refusal to give a requested charge to the jury to find in their favor was erroneous, because the evidence adduced showed that they were enticed or entrapped by an agent or agents of the government into committing the offenses for which they were tried. In its charge to the jury the court gave instructions which were not excepted to, on the subjects of instigation inducement, and entrapment, which included instructions to find in favor of the defendants, if the jury found in accordance with some of the evidence in those regards which was adduced.

Evidence adduced tended to prove the following: A government narcotic agent at El Paso, upon learning through an informer that Noble and Hughes, who lived in Oklahoma, were in El Paso for the purpose of making an unlawful purchase of narcotics, and suspecting, and having good reason to suspect, that Warden was engaged in illegal traffic in narcotics, by means of persons employed by the government brought about a meeting between Noble and Hughes and Warden, whereupon Warden, on learning from Noble and Hughes that they desired to buy narcotics illegally, agreed to aid them in doing so, procured the co-operation of Aultman and Castro, and assisted in bringing about the importation from Mexico of cocaine and morphine and the unlawful sale of it to Noble and Hughes.

There was evidence...