Braden v. United States

• Citation: 270 F. 441
• Decision Date: 14 December 1920
• Docket Number: 5500.
• Parties: BRADEN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

270 F. 441

BRADEN v. UNITED STATES.

No. 5500.

United States Court of Appeals, Eighth Circuit.

December 14, 1920

George Nordlin, of St. Paul, Minn., for plaintiff in error.

William Anderson, Asst. U.S. Atty., of St. Paul, Minn. (Alfred Jaques, U.S. Atty., of Duluth, Minn., on the brief), for the United States.

Before SANBORN, CARLAND, and STONE, Circuit Judges.

CARLAND Circuit Judge.

Plaintiff in error, hereafter called defendant, was indicted on an indictment containing nine counts which charged him with violations of section 8, Act Dec. 17, 1914. 38 Stat. 789 (Comp. St. Sec. 6287n). Counts 1, 2, 3, 4, and 5 were eliminated on demurrer. Defendant was found guilty on counts 6, 7, 8, and 9, and sentenced to the penitentiary as follows Sixth count, five years; seventh count, three years; eighth count, one year; ninth count, one year--said terms to be served 'serially and not concurrently.' The overruling of the demurrer to counts 6, 7, 8, and 9 is assigned as error, but the question is not argued by counsel for defendant. Counsel for the United States rightly assumed that the question was waived, and therefore presented no argument. We must act on the same assumption. The finding that the affidavit of prejudice was insufficient was not excepted to, specified as error, or argued. The assignment of error in regard to the admission of evidence does not quote the full substance of the evidence admitted or at all, and the alleged error is not argued, and, under rule 11 of this court (188 F. ix, 109 C.C.A. ix), must be disregarded. Assignments of error No. 7, 8, and 11 are not argued. The sufficiency of the evidence to justify the verdict was not raised at the trial, but in the exercise of our discretion we will consider alleged defects therein. It is claimed that the evidence is insufficient to show that the defendant was a person required to register under section 1 of the act. United States v. Jin Fuey Moy, 241 U.S. 394, 36 Sup.Ct. 658, 60 L.Ed. 1061, Ann. Cas. 1917D, 854. Section 1 (Comp. St. Sec. 6287g) provides that 'every person who * * * deals in, dispenses, sells, distributes, or gives away' opium or coca leaves or their derivatives shall register, etc. The law does not say 'carry on the business of,' etc. The evidence shows that on November 13, 1918, Paddy McSheffrey introduced to the defendant Internal Revenue Agents Feimster and Anson, who represented themselves to be automobile thieves who wished to dispose of automobiles which had theretofore been stolen. Defendant wished to know what they wanted for them, cash or dope. Anson agreed to take dope for his share. Anson and McSheffrey then accompanied the defendant to his flat, No. 490 Rice street St. Paul, Minn. On arriving at the flat defendant sold Anson morphine and cocaine, and also sold McSheffrey morphine for which Anson paid. Anson saw the defendant again on the morning of November 14, at which time the defendant delivered to one Clayton Foster a toy of smoking opium for which Anson paid. Anson met the defendant again on November 15 at defendant's apartment, and then and there Anson arranged to buy 25 ounces of morphine from defendant at $35 an ounce. Defendant on the evening of November 15 arranged with Anson to purchase for him, the defendant, 100 pounds of gum opium at $40 a pound. The same evening Anson purchased from defendant one dram of heroin. Anson and Feimster met defendant again at his apartment on November 16, at which time defendant sold Anson a 25-ounce box of morphine for which Anson paid the defendant $875. After this sale was made Anson and Feimster disclosed their identity, and, together with a number of men who were stationed outside of the flat, placed the defendant under arrest and searched his flat. The search disclosed a large quantity of morphine, smoking opium, heroin, and cocaine hydrochloride, as set out in the indictment. Patrick Callahan testified that he had purchased morphine and cocaine from defendant on various occasions. Edmund G. McCarthy also testified that eight or ten times a month he purchased narcotics from the defendant.

In view of this evidence it is idle to contend that defendant was not shown to be a person required to register under section 1 of the act. There is no merit in the contention that defendant was procured to commit the crime with which he was charged or that evidence of other crimes was erroneously admitted. It was necessary to show that defendant was one of the classes of persons mentioned in section 1 who were obliged to register and hence to show that he sold or dealt in the prohibited drugs although he was only charged with having them in his possession. Complaint is made of an excerpt taken from the charge of the court wherein the court instructed the jury as to the testimony of any witness whom the jury might believe had testified falsely. It is objected that the excerpt does not contain an instruction that the testimony must be willfully or intentionally false.

No exception was taken to this portion of the charge at the trial, and there is about as many decisions in support of the language given by the court as there is of the language contended for by counsel for defendant. We do not think the omission of the words mentioned affected the substantial rights of the defendant. Section 269, Judicial Code, as amended by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, Sec 1246). It is further contended that the sentence imposed by the trial court is excessive. This contention is based on the fact that, although defendant was convicted on four counts the...