Borgfeldt v. United States, 7138.

• Decision Date: 07 December 1933
• Docket Number: No. 7138.,7138.
• Citation: 67 F.2d 967
• Parties: BORGFELDT v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

67 F.2d 967 (1933)

BORGFELDT v. UNITED STATES.

No. 7138.

Circuit Court of Appeals, Ninth Circuit.

December 7, 1933.

Edward A. O'Brien, of San Francisco, Cal., for appellant.

H. H. McPike, U. S. Atty., and Robert L. McWilliams and S. P. Murman, Asst. U. S. Attys., all of San Francisco, Cal.

Before WILBUR and GARRECHT, Circuit Judges, and NORCROSS, District Judge.

GARRECHT, Circuit Judge.

Appellant and one Richard H. Moore were jointly indicted, it being charged that they "fraudulently and knowingly did conceal, and facilitate the concealment of a lot of morphine." Moore pleaded guilty. Appellant was tried, convicted, and sentenced.

At the close of the government's case appellant moved for a directed verdict, which motion was renewed at the close of all the evidence. Appellant also requested certain instructions. Failure to grant the motions or give the requested instructions is assigned as error.

Section 174 of title 21 USCA, commonly known as the Jones-Miller Act, provides: "If any person fraudulently or knowingly imports or brings any narcotic drug into the United States, * * * contrary to law, or assists in so doing or * * * conceals, * * * or in any manner facilitates the * * * concealment * * * of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, such person shall upon conviction be fined not more than $5,000 and imprisoned for not more than ten years. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."

The facts taken from the record are as follows: A police officer observed the appellant and his codefendant sitting in an automobile in the vicinity of Turk street and Van Ness avenue in San Francisco. The officer approached the automobile, stopped at a position on the sidewalk on the side of the car on which the defendant Moore was sitting, and ordered both men to get out. In response to this order both got out of the car, Moore slightly ahead of the appellant, each alighting from their respective sides. The witness testified that as appellant got out on his side of the car, the one farthest from the officer, he noticed that the appellant dropped something red from his pocket onto the street. He then came around to the sidewalk where the officer was standing. About this time Moore went to the back of the car and dropped two small paper bindles to the street at the rear of the car. The officer picked these up and later went around the car and recovered the small red box let fall by appellant, which contained four paper bindles. A chemist called as a witness on behalf of the government at the trial testified that each of these bindles contained morphine.

Appellant's codefendant, Moore, pleaded guilty and upon the trial was a witness for appellant. In contradiction of the testimony of the arresting officer, Moore testified that all of these packages of morphine belonged to him and that he himself had thrown them into the street. Upon rebuttal the government put on another witness who testified that in a conversation had with defendant Moore in the...