Fina v. United States

• Decision Date: 05 January 1931
• Docket Number: No. 284.,284.
• Citation: 46 F.2d 643
• Parties: FINA v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

46 F.2d 643 (1931)

FINA v. UNITED STATES.

No. 284.

Circuit Court of Appeals, Tenth Circuit.

January 5, 1931.

Granby Hillyer, of Denver, Colo., for appellant.

Ralph L. Carr, U. S. Atty., and Ivor O. Wingren, Asst. U. S. Atty., both of Denver, Colo.

Before PHILLIPS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge.

POLLOCK, District Judge.

Appellant was indicted in the District Court for a violation of the Harrison Anti-Narcotic Act (26 USCA § 211, 691-707). The indictment contains nine counts. Counts 1 to 5 were dismissed. He was tried and convicted on counts 6 to 9, inclusive, and appeals.

The sixth count charged an unlawful sale of three grains of morphine not in or from the original stamped package. Count 7 charged the sale of the same morphine not in pursuance of written orders. The eighth count charged an unlawful sale of twenty grains of morphine not in or from the original stamped package, and the ninth count charged the sale of the same morphine not in pursuance of a written order. There are but three assignments of error that are necessary to be considered on this appeal.

The first is the sufficiency of the evidence to uphold the verdict rendered. At the conclusion of all the evidence the defendant moved for an instructed verdict in his behalf. This motion was denied, and defendant excepted.

In regard to this assignment it is sufficient to state the evidence of the witness R. V. Vaughn, an undercover government agent, if believed by the jury, was sufficient to uphold the verdict rendered on the trial, hence there was no error in the overruling the motion for an instructed verdict.

The second error complained of is a remark made by the witness Vaughn as to the present whereabouts of another undercover agent, Callaway, who worked with him in the case. The witness replied he was in Canada, "having been run out of Denver by the Italian Colony." We are informed from the briefs of counsel the defendant is an Italian. While the answer was not called for and may have been intended by the witness to work a prejudice against the defendant, yet no motion to strike the answer out was made, and no exception was saved thereto. Hence, the trial court was not asked to and did not rule on the question, and on this record there is no question for this court.

The remaining error complained of is this: After the jury had been out for some time without a verdict, information came to the court that the jury desired to ask the court a question, and the jury was brought into court and propounded the question to the court. The court answered the question propounded by the jury. At this time neither counsel for the defendant nor defendant, who was in charge of the marshal, were notified of the coming in of the jury, nor was either present. As stated, defendant was at this time in the custody of the United States marshal and could not be present unless brought into court by the marshal having him in charge. This the defendant contends was prejudicial error, because it was denial of his constitutional right to be present at all the stages of the trial. We have no doubt but that it is the constitutional right of one accused of a felony, as in this case, to be present at every stage of the trial, because the trial by jury mentioned in our Constitution means a trial by jury according to the rules of the common law. The government in this case apparently concedes the action of the trial court in giving, in effect, a supplemental charge to the jury after it had been out deliberating for some time, without notice to the defendant or his counsel, and, in their absence, was erroneous, but contends the burden is on defendant to show prejudice. We cannot agree with this contention at all. In fact, the record is silent as to what was said by the court to the jury. Hence to be required to show something as prejudicial on which the record is silent, and defendant had no opportunity to hear, would be requiring of defendant the impossible. Such is not the law. This being a criminal case on a charge of felony, if error is shown to have been committed, prejudice will be presumed, unless the contrary is clearly made to appear. Again, the error here complained of is a denial to defendant of his constitutional right, and the denial to defendant on trial of his rights guaranteed to him by the Constitution is at all times deemed to be prejudicial. To preserve such rights from usurpation the framers of our Constitution deemed them of such solemn importance in the doing of justice as to place their protection under the sheltering ægis of our organic law. Again, it is contended by the government there are cases in which a reversal was refused on similar grounds. However, not so. There are reported cases which hold, where the defendant is at liberty on bond and he voluntarily absents himself from his trial, he waives his constitutional rights to be present. Such were the cases of Hagen v. U. S. (C. C. A.) 268 F. 344; Noble v. United States (C. C. A.) 300 F. 689; Dodge v. U. S. (C. C. A.) 258 F. 300, and other cases. Such is not this case. In this case, as has been stated, the defendant was in custody of the marshal of the court and could only be present in court when the marshal brought him in. In no such case has it been held the defendant waived his constitutional right. See the very interesting and able discussion on the distinction between these...