Gart v. United States
| Decision Date | 29 October 1923 |
| Docket Number | 6303. |
| Citation | 294 F. 66 |
| Parties | GART v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Philip Hornbein, of Denver, Colo., for plaintiff in error.
Clarence L. Ireland, Asst. U.S. Atty., of Denver, Colo. (Granby Hillyer, U.S. atty., of Denver, Colo., on the brief), for the United States.
Before STONE and LEWIS, Circuit Judges, and KENNEDY, District Judge.
The plaintiff in error, as defendant in the court below, was convicted under an indictment charging him with the violation of the Harrison Narcotic Act (Comp. St. Secs. 6287g-6287q). While the indictment contained five counts, the conviction was upon two only, one of unlawful possession and the other of unlawful sale.
The prayer for the reversal of the judgment in the court below is based upon three contentions. The first relates to an erroneous instruction of the trial court, the second to the refusal of the trial court to dismiss upon the ground that the evidence in the case showed that the defendant was entrapped, and the third upon the erroneous admission of evidence. In the view which this court takes of the case, it will only be necessary to consider the last mentioned.
The evidence in support of the count in the indictment which charged the unlawful sale of narcotics tends to show that a delivery of the drug was made upon the streets of Denver. Evidence was introduced by the government which tended to show that, at a different time and place upon a street in Denver, the defendant delivered a package to another party. Objection was made on behalf of the defendant at the time upon the ground that it involved a transaction not charged in the indictment, which objection was overruled. The testimony thereupon proceeded, in which it was testified that the delivery was made as hereinbefore described. The government, however failed to prove by any testimony what the package so delivered contained. Defendant's counsel then moved to strike out the entire testimony as to the delivery of a package by the defendant to another person not charged in the indictment, upon the ground that such testimony was immaterial, and was vague and uncertain. The motion was denied by the trial court, and proper exception taken.
It must be apparent that such a line of testimony if not properly admissible would be highly prejudicial. Standing as evidence before the jury, it might easily lead them to the conclusion that the defendant was in the habit of making sales of narcotics on the streets by delivering packages containing the drug to persons indiscriminately, and yet there was no proof that the package so testified as having been delivered by the defendant at a time and place not charged in the indictment contained narcotic drugs. This left the matter in the nature of a mere suspicious circumstance, which not having been taken from the jury by the trial court left it with them for consideration.
The scope and purpose of testimony concerning similar offenses is limited, as has been laid down in the Supreme Court of the United States in the cases of Boyd v. United States, 142 U.S. 454, 12 Sup.Ct. 292, 35 L.Ed. 1077, and Hall v United States, 150 U.S. 76, 14 Sup.Ct. 22, 37 L.Ed 1003. Only in exceptional cases is the proof of such transactions admissible. Where a case falls within the exception, the proof must be clear and...
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State v. Kelley
...confuses him in his defense, and raises a variety of false issues. Kempe v. United States, 8th Cir., 151 F.2d 680; Gart v. United States, 8th Cir., 294 F. 66; Paris v. United States, 8th Cir., 260 F. 529, 531; Fish v. United States, 1 Cir., 215 F. 544; 20 Am.Jur., § 309, p. There are severa......
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Morris v. United States, 9092.
...Counsel for the appellants relied largely upon the authorities of Holt v. United States, 10 Cir., 94 F.2d 90, 94, and Gart v. United States, 8 Cir., 294 F. 66. The Holt case has no application and the Gart case recognized the principle we have herein announced, but announced the correct pri......
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Kempe v. United States
...the attention of the jury is diverted from the charge contained in the indictment or information. 20 Am. Jur. § 309, p. 287; Gart v. United States, 8 Cir., 294 F. 66; Paris v. United States, 8 Cir., 260 F. 529, In the Paris case, supra, the court speaking through Judge Walter H. Sanborn, sa......
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U.S. v. Clemons
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