Brown v. United States, 14184.

• Decision Date: 11 March 1953
• Docket Number: No. 14184.,14184.
• Citation: Brown v. United States, 202 F.2d 474 (5th Cir. 1953)
• Parties: BROWN v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

202 F.2d 474 (1953)

BROWN v. UNITED STATES.

No. 14184.

United States Court of Appeals Fifth Circuit.

March 11, 1953.

James H. Martin, Dallas, Tex., for appellant.

Lester L. May, Asst. U. S. Atty., and Frank B. Potter, U. S. Atty., Dallas, Tex., for appellee.

Before HOLMES, BORAH, and RUSSELL, Circuit Judges.

HOLMES, Circuit Judge.

The appellant and his wife were indicted jointly in one count, charged with knowingly and unlawfully acquiring approximately 1841 grains of marihuana without having paid the special transfer tax thereon. The case was tried to a jury. At the close of the testimony, the wife withdrew her plea of not guilty and entered a plea of guilty; the appellant was convicted, and sentenced to three years imprisonment. Notice of appeal was timely made, and he is here seeking a reversal of the judgment. The pertinent facts are as follows:

On the 18th of April, 1952, about 4:30 p. m., two police officers, having previously obtained a search warrant, entered appellant's residence and served the warrant upon his wife, who was alone in the house. They found two marihuana cigarettes in the wife's shirt pocket, some bulk marihuana on the dining room table, and some marihuana in a shoe-box top in a cedar chest, along with some marihuana seed; all of which was introduced in evidence. It was agreed in open court by the attorneys for the government and the defendants that the exhibits in evidence contained approximately 1841 grains of marihuana, that it was marihuana, and that the government's chemist, if he were present, would testify that he had tested it and it was marihuana. It was further stipulated that the Deputy Collector of Internal Revenue, if he were present, would testify that he made a demand on both of the defendants to produce the order form as required by the Act, 26 U.S.C.A. §§ 2591, 2595, and that they failed to do so.

We think the evidence is sufficient to sustain a verdict against the appellant, but the record must be free from prejudicial error. The appellant assigns as error the admission of the officers' testimony that they had information that the defendants were dealers in marihuana. This was objected to as hearsay and prejudicial. The trial court admitted it as evidence of reasonable grounds for the issuance of a search warrant, but instructed the jury not to consider it as evidence against the defendant. This evidence, in our opinion, was pure hearsay and wholly incompetent on the trial below, however proper it may have been on the hearing of the application for a search warrant. The search warrant was prima facie valid, and the propriety of its issuance was not being questioned. To allow the officers to give hearsay evidence that the defendants were dealers in marihuana cannot be justified upon the ground that the testimony showed the basis for the issuance of the search warrant. Such incompetent evidence is reversible error in a close case like this one.

The crucial part of the proof of appellant's guilt rested upon circumstancial evidence. He was not present when the officers entered his house, arrested his wife, searched her and the...