Banks v. United States, 10804.
| Decision Date | 20 February 1945 |
| Docket Number | No. 10804.,10804. |
| Citation | 147 F.2d 628 |
| Parties | BANKS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jeffrey Heiman, of Seattle, Wash., for appellant.
J. Charles Dennis, U. S. Atty., and Allan Pomeroy and Herbert O'Hare, Asst. U. S. Attys., all of Seattle, Wash., for appellee.
Before GARRECHT, HEALY, and BONE, Circuit Judges.
The appellant was indicted on three counts: Counts 1 and 2 charged appellant with transferring on September 25, 1943, and October 10, 1943, one and two marihuana cigarettes, respectively, without a written order of the person to whom transferred and without a form issued in blank for that purpose by the Secretary of the Treasury. Count 3 charged appellant with possession of two marihuana cigarettes without a written order form and without having registered and paid the special tax as required by law. The jury found appellant guilty on all three counts. A motion for a new trial was denied, and judgment was entered. Appellant was sentenced to the penitentiary for two years on count 1 and two years on count 2, the two sentences to run concurrently. The imposition of a sentence on count 3 was suspended for a year after the expiration of the other sentences, during which year the appellant was to be on probation. From this judgment and sentence, the present appeal is taken.
The first assignment of error was that the witness Townsend Davidson was permitted to testify over the appellant's objection with reference to the fact that the cigarette was marihuana.
The qualification of the witness Davidson to express an opinion that it was marihuana was gained from his use of marihuana over a period of ten or twelve years. Davidson testified that he, the appellant, and another person smoked marihuana together in Davidson's automobile. At the time of testifying Davidson was charged with having marihuana in his possession and had decided to plead guilty, he said. The testimony, we feel, was rightly submitted for the jury's consideration.
The appellant contends in the third assignment of error that the court should have granted the motion to strike the testimony of the witness Love as there was nothing in the record to show him to be a competent witness to testify that the cigarettes were marihuana. It is apparent that the lower court considered Love's testimony corroborative. The lower court also said that the fact that Love had pleaded guilty to possession of marihuana was a substantiating...
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