Gowling v. United States

• Decision Date: 10 May 1933
• Docket Number: No. 6289.,6289.
• Parties: GOWLING v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

64 F.2d 796 (1933)

GOWLING v. UNITED STATES.

No. 6289.

Circuit Court of Appeals, Sixth Circuit.

March 18, 1933.

Rehearing Denied May 10, 1933.

Ralph Davis, of Memphis, Tenn., for appellant.

Bailey Walsh, of Memphis, Tenn. (Dwayne D. Maddox, of Memphis, Tenn., and H. C. Murchison, of Jackson, Tenn., on the brief), for the United States.

Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.

HICKS, Circuit Judge.

Appellant was convicted on January 27, 1932, under both counts of an indictment, the first of which charged a purchase of unstamped opium in violation of the Harrison Anti-Narcotic Act (section 692, tit. 26, U. S. C. 26 USCA § 692), and the second, the receiving, concealing, buying, and selling at the same time and place, of opium, which appellant knew had been unlawfully imported in violation of the Narcotic Import Statute (section 174, tit. 21, U. S. C. 21 USCA § 174).

The assignments of error challenge (1) the court's action in overruling a demurrer to the indictment; (2) the sufficiency of the proofs to establish the venue; (3) the denial of a directed verdict; (4) the failure of the court to suppress the testimony of the government's witnesses Chatham and Caldwell as to the search for and seizure of twenty-seven and a half grains of opium, forty grains of yenshee, and other articles without a search warrant; (5) the action of the court in permitting the District Attorney to cross-examine appellant (a) as to his former conviction under the Harrison Anti-Narcotic Act, and (b) as to his connection with Charles Frank, who had been arrested in 1930 and convicted in June, 1931, of a violation of the act; and (6) the correctness of the charge.

First. The indictment is sufficient. Howell v. U. S., 17 F.(2d) 89 (C. C. A. 6); Rosenberg v. U. S., 13 F.(2d) 369 (C. C. A. 9). The merits of the demurrer are not discussed in the brief, and need not be further considered.

Second. The venue was sufficiently proved. The record establishes beyond controversy that the offense was committed in Memphis, which, we judicially know, is in the Western District of Tennessee. Moreover, the question of venue was not raised until after conviction, and therefore came too late.

Third. We think there was substantial evidence to support the verdict.

On November 21, 1931, Chatham, a police sergeant of Memphis, led a searching party, consisting of two other police sergeants, Caldwell and Solomon, and a deputy sheriff, Cox, to a combined brick dwelling and storehouse located on the southwest corner of Horn Lake road and Peeples avenue, Memphis. Appellant was found in his shirt sleeves standing in the yard. A Mrs. Bussey occupied the dwelling portion of the building. Chatham and appellant entered the kitchen from the rear, where Chatham found Mrs. Bussey and a little girl. Chatham took appellant, Mrs. Bussey, and the child from the kitchen through a bedroom, where appellant's wife was lying asleep, into a front room, and placed them in charge of Cox. Chatham and Caldwell then searched the house. Chatham found appellant's brief case and a coat and vest lying on the bed in a small room on the east side of the kitchen. He searched the pockets of the coat and vest, and discovered in one of the vest pockets a small unstamped box containing four indigestion tablets and some other tablets which, upon analysis, were found to be twenty-seven grains of opium. Chatham marked the box for identification, showed it to Caldwell, and delivered the vest to appellant, who put it on. This vest contained appellant's watch and chain. Chatham and Caldwell then searched the kitchen, where they found a greasy lamp, a lemon hull cut across the top, and a bottle. Upon analysis this lemon hull was found to contain about one hundred thirty grains of opium. In the bottle were forty grains of yenshee or opium ash.

The evidence as to the finding of twenty-seven grains of opium in the unstamped box in appellant's vest pocket was sufficient to establish a prima facie case against him and to authorize his conviction upon each count of the indictment based upon the statutes, supra, unless he explained the possession of the drug to the satisfaction of the jury. As to the second count see Yee Hem v. U. S., 268 U. S. 178, 45 S. Ct. 470, 69 L. Ed. 904. As to both counts see Copperthwaite v. U. S., 37 F.(2d) 846, 848 (C. C. A. 6).

Fourth. We do not think that it was reversible error to permit the district attorney to cross-examine appellant touching either his former conviction under the Harrison Anti-Narcotic Act or his connection with Charles Frank. Appellant made no contention that Chatham and Caldwell, or either of them, placed the opium in his vest pocket, or that these officers did not find it there, but testified that he could not account for its presence; that it was not there when he left the vest in the room, and that it was not placed there by him nor with his knowledge, and he insisted that the element of criminal intent was therefore lacking. He testified that he was not a drug addict; that he did not smoke opium; that he did not know that Mrs. Bussey smoked opium, and he explained his presence at the Bussey home by saying that he went there with his wife to arrange for the adoption of the little girl; that his brief case, which was found, contained a shaving outfit; and that he had removed his coat and vest for convenience while shaving. His testimony raised the principal issue, that is, of criminal intent.

It is settled that, when a defendant takes the stand in his own behalf, he does so as any other witness, and may be cross-examined as to the facts in issue and for the purpose of impeaching his credibility. Raffel v. U. S., 271 U. S. 494, 497, 46 S. Ct. 566, 70 L. Ed. 1054; Fitzpatrick v. U. S., 178 U. S. 304, 315, 20 S. Ct. 944, 949, 44 L. Ed. 1078. As was said in the Fitzpatrick Case, if he offers himself as a witness, "he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts." The extent to which the government may go in the cross-examination of a defendant in a criminal case for the purpose of impeachment is largely a matter of discretion with the trial judge. Powers v. U. S., 223 U. S. 303, 315, 32 S. Ct. 281, 56 L. Ed. 448; Silverman v. U. S., 59 F.(2d) 636, 639 (C. C. A. 1).

The fact that appellant had been previously convicted of a similar offense was relevant, not as substantive evidence upon which he could be convicted of the offense charged, but because it naturally and logically tended to weaken his claim that no criminal intent was shown. Holt v. U. S., 42 F.(2d) 103, 106 (C. C. A. 6); see also New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591, 598, 6 S. Ct. 877, 29 L. Ed. 997; MacKnight v. U. S., 263 F. 832, 840 (C. C. A. 1); Thompson v. U. S., 144 F. 14, 20, 7 Ann. Cas. 62 (C. C. A. 1).

The cross-examination of appellant touching his relations with Charles Frank was for the same purpose as that touching his own prior conviction, and he was...