Graham v. United States

Decision Date30 October 1926
Docket NumberNo. 7339,7276-7279.,7339
Citation15 F.2d 740
PartiesGRAHAM v. UNITED STATES. LEWIS v. SAME (two cases). O'FALLON v. SAME (two cases).
CourtU.S. Court of Appeals — Eighth Circuit

Neal E. McNeill, of Tulsa, Okl. (John W. Tillman, Fred A. Tillman, and Welcome D. Pierson, all of Pawhuska, Okl., on the brief), for plaintiffs in error.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl. (W. L. Coffey, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before STONE and LEWIS, Circuit Judges, and SYMES, District Judge.

SYMES, District Judge.

The first count of the indictment in this case charges that the plaintiffs in error, defendants below, Jimmie Graham, Seth M. Lewis, Daman Lewis, John O'Fallon, and Roy O'Fallon, together with one Jesse Merritt and Audine Merritt, unlawfully conspired and combined to violate the Harrison Narcotic Act (Comp. St. ?? 6287g-6287q), in Osage county, Okl. Three overt acts are alleged, to wit: First, the purchase of 100 ounces of morphine from unknown parties in Kansas City, Mo., and the unlawful transportation of the same into said Osage county, and its unlawful possession therein; second, the purchase in Kansas City, Mo., of 75 ounces of morphine, and its transportation into, and unlawful possession in, said Osage county; third, the unlawful possession of a considerable quantity of morphine and cocaine in said Osage county. The second count charges the same defendants individually with the unlawful possession of the aforesaid drugs without having registered and paid the special tax provided by law. The third charges the same defendants with the unlawful purchase from unknown parties of the above mentioned drugs. They were tried jointly, and convicted on all three counts. Jesse Merritt and Audine Merritt had previously pleaded guilty to another indictment. The separate appeals have been consolidated for argument and decision in this court.

Briefly, the evidence discloses that during 1923-1924, the defendant John O'Fallon was the owner of a drug store at the small town of De Noya, in Osage county, Okl., and the defendant Daman Lewis for part of the time was interested with him. The town site of De Noya had been owned and platted by the defendant Seth Lewis. He later erected and operated the "Lewis Hotel," where he resided. The defendant Daman Lewis had been acquainted with both the O'Fallons in Montana, from whence all came to Oklahoma. Roy O'Fallon for some time was employed in the drug store. The witnesses Audine and Jesse Merritt, together with the witness Myrtle Neal, confirmed addicts, made their headquarters at the Lewis Hotel. Government agents, in the course of an investigation, made purchases of morphine and cocaine from them, which they testified had been procured from some of the defendants. The defendant Graham lived and worked at his father's dairy, located a short distance out of the town. The government says he kept the drugs there, bringing them into town in small quantities from time to time as needed, when delivering milk. We will discuss seriatim the questions necessary to a decision.

In No. 7339, Jimmie Graham plaintiff in error, the only point seriously pressed, as stated by counsel, is the validity of a search warrant. In the course of the investigation, the government officers obtained a warrant from a justice of the peace, and searched the Graham ranch. A quantity of morphine and cocaine was found, and young Graham arrested. Thereafter a motion was filed to quash the indictment, and exclude the testimony of these officers, on the ground that the warrant was void. The motion was separately heard, testimony taken, and the motion denied.

If Graham was in a position to urge the objections made to this search warrant, we might be compelled to sustain them. They cannot, however, be availed of by this defendant. The buildings searched belonged to, and were under the control of, his father. The narcotics seized were not in young Graham's possession, and at no time has he made any claim thereto. They were hidden in a shack occupied by the father, separate and apart from that occupied by the son. The guaranty of the Fourth Amendment to the Constitution against unreasonable search and seizure is a personal right or privilege, that can only be availed of by the owner or claimant of the property subjected to unreasonable search and seizure. See Rosenberg v. U. S. (C. C. A. 8th Cir.) 15 F.(2d) 179; Goldberg Case (C. C. A.) 297 F. 98; Chicco v. U. S. (C. C. A.) 284 F. 434.

At the end of the trial the question of the sufficiency of the evidence on the conspiracy count was properly raised. The proof discloses a series of isolated transactions, and is circumstantial as to all the defendants tried. Conspiracy is a distinct offense from the crime which may be the object of the conspiracy. U. S. v. Rabinowich, 238 U. S. 78, 85, 35 S. Ct. 682, 59 L. Ed. 1211. There must be shown to be a combination or understanding, tacit or otherwise, to violate a federal statute. U. S. v. Kissel, 218 U. S. 601, 607, 608, 31 S. Ct. 124, 54 L. Ed. 1168. There is some proof here that one or more of the defendants were guilty of what might be termed overt acts, but none that any two or more of them conspired or combined to commit these isolated acts, or that they were committed in furtherance of any criminal scheme.

The government, to support this count, admittedly relied in a great measure upon the written confessions of the defendants Jimmie Graham and Roy O'Fallon, made at the time of their arrest. Eliminating these, for the reasons hereafter stated, the conspiracy count fails for lack of proof.

The confessions referred to were made by Jimmie Graham and Roy O'Fallon on the day following their arrest, after they had been in jail all night, and not in the presence of the other defendants. So they cannot be said to have acquiesced therein. The court did not at any stage of the proceedings instruct the jury that they constituted evidence only against the defendants making them. In this we think it erred. In Morrow v. U. S., 11 F.(2d) 259, this court said:

"It is also true, as claimed by the government that the act of one conspirator in the prosecution of the enterprise and carrying out the purpose thereof is evidence against all of the conspirators and is considered the act of all, and is admissible against the other conspirators; yet such act must be, as the Supreme Court says in Brown v. United States, 150 U. S. 93, 98, 14 S. Ct. 37, 39 (37 L. Ed. 1010), `done and made while the conspiracy is pending, and in furtherance of its object.' Admissions or acts of a conspirator after the conspiracy has terminated are not admissible against a former conspirator, nor are acts of a person committed prior to the formation of a conspiracy admissible against his subsequent co-conspirator. The rule as to declarations or acts of one conspirator is that they are admissible as against a co-conspirator, if occurring during the pendency of the conspiracy and in furtherance of...

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