Grantello v. United States

• Decision Date: 12 November 1924
• Docket Number: No. 6555.,6555.
• Citation: 3 F.2d 117
• Parties: GRANTELLO v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

3 F.2d 117 (1924)

GRANTELLO v. UNITED STATES.

No. 6555.

Circuit Court of Appeals, Eighth Circuit.

November 12, 1924.

Harry L. Jacobs, of Kansas City, Mo. (Julius C. Shapiro, Frank Benanto, and Rader & Rader, all of Kansas City, Mo., on the brief), for plaintiff in error.

Samuel M. Carmean, Sp. Asst. U. S. Atty., of Kansas City, Mo. (Charles C. Madison, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before SANBORN and LEWIS, Circuit Judges, and KENNEDY, District Judge.

SANBORN, Circuit Judge.

The writ of error in this case presents for review rulings of the district court below in the proceedings which resulted in the conviction of the defendant, Frank Grantello, of violations of the Harrison Anti-Narcotic Act (U. S. Comp. St. §§ 6287g, 6287h), under three counts of an indictment against him and his wife, Laura Grantello. The first count of that indictment charged that on or about March 27, 1923, they had in their possession for sale in violation of that act about 40 ounces of morphine; the second, that in violation of that act, on or about March 29, 1923, Laura Grantello sold to Mary Shreves about two grains of morphine, and Frank Grantello aided and abetted her in making that sale; and the third, that in violation of that act Frank Grantello and Laura Grantello, on or about the 29th day of March, 1923, bought about 40 ounces of morphine. The defendant Frank Grantello was tried under this indictment, and Laura Grantello pleaded guilty to it. All the evidence at the trial is presented in the record, and an examination of it and of the objections, the rulings, exceptions, and charge have left no doubt that the decisive issue of fact in this case was whether or not the defendant Frank Grantello was in possession of the 40 ounces of morphine on or about March 29, 1923.

Among the errors of law assigned is the refusal of the court to instruct the jury, as requested by counsel for the defendant, to return a verdict in his favor at the close of all the evidence on the ground that "evidence of facts that are as consistent with innocence as with guilt is insufficient to sustain a conviction. Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial court to instruct the jury to return a verdict for the accused; and where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a judgment of conviction." Vernon v. United States, 146 F. 121, 123, 76 C. C. A. 547, 549; Union Pacific Coal Co. v. United States, 173 F. 737, 740, 97 C. C. A. 578; Sullivan v. United States (C. C. A.) 283 F. 865, 868; Wright v. United States, 227 F. 855, 857, 142 C. C. A. 379; Willsman v. United States (C. C. A.) 286 F. 852, 856.

The government sought to convict the defendant on the ground that he was in possession of the 40 ounces of morphine on or about March 27, 1923, and thereafter when, on March 29, 1923, the sale was made by Laura Grantello and the 40 ounces of morphine were discovered and seized by the officers. No witness, however, came to testify nor was there any direct evidence that the defendant was ever in possession or control of this morphine and at the close of the trial the direct evidence was that the 40 ounces of morphine were discovered by the officers of the government in the house at 3117 East Tenth street, Kansas City, Mo., on March 29, 1923, where the defendant and his wife had lived together prior to September, 1922, but where she was, and had been since August, 1922, living apart from her husband with her children and a boarder. There had been no direct evidence or testimony that the defendant ever saw or knew of this 40 ounces of morphine, of its presence in that house, or that he had at any time any joint or other possession or control thereof. His conviction rests on the possession of his wife, circumstantial evidence, and presumptions.

But the possession of the instruments or fruits of crime by a wife in the house occupied by her while she is living there separate and apart from her husband is insufficient to raise any incriminating presumption of possession or control thereof or of guilt by her husband. State v. Owsley, 111 Mo. 450, 455, 20 S. W. 194; State v. Drew, 179 Mo. 315, 323, 78 S. W. 594, 101 Am. St. Rep. 474; State v. Castor, 93 Mo. 242, 250, 5 S. W. 906. Possession of the instruments or fruits of crime by a defendant in order to be incriminating must have been known to him, actual, dominant, with plenary power of disposition. 3 Greenleaf on Evidence, § 32; Sorenson v. United States, 168 F. 785, 798, 94 C. C. A. 181; Underhill on Criminal Evidence, § 469; Jackson v. State, 28 Tex. App. 143, 12 S. W. 701; State v. Belcher, 136 Mo. 137, 37 S. W. 800; State v. Warford, 106 Mo. 55, 63, 64, 16 S. W. 886, 27 Am. St. Rep. 322; State v. Scott, 109 Mo. 226, 19 S. W. 89; People v. Hurley, 60 Cal. 74, 76, 77, 78, 44 Am. Rep. 55.

At the trial these facts were admitted or conclusively established by the evidence: Prior to about September, 1922, the defendant and his wife had been living together with their children at the house numbered 3117 East Tenth street in Kansas City, Mo. That number was his post office and telephone address; there his mail was delivered. He had an automobile. His automobile license bore that number, and he kept it in one of the four garages at that place. On or about March 29, 1923, acting for the government to enforce the Anti-Narcotic Act (Comp. St. §§ 6287g-6287q), officers entered the room of Mary Shreves, an addict, and her husband, when they were in bed, made her get up and dress, gave her $9, took her to 3117 East Tenth street, sent her into the house with instructions to buy morphine, and if she did so to stop at the door when she came out and signal them. She went into the house and bought 60 grains of morphine from Mrs. Grantello, came out, and signaled them. Thereupon, without any search warrant, they went into that house, searched it, and in a room on the second story found in a suit case and took the morphine.

In addition to these conceded facts the government, over proper objections and exceptions, introduced the testimony of John Gunderson, an addict, to the effect that about April 5, 1923, he bought of defendant morphine which was delivered to him three or four blocks from the Grantello house; that prior to March 27, 1923, he had bought morphine three or four times at the Grantello house, but that he never bought any of the defendant; that he was an addict and needed about two grains of morphine a day; that when he was short the government officers furnished him with morphine; that he came to testify under a subpœna, and when he came he did not know which way he was going to testify. Mr. Prewitt, another witness for the government, over proper objections and exceptions, testified that about May, 1922, he met the defendant at Fifteenth and Grand avenues in Kansas City and bought a small quantity of morphine of him, and that prior to the year 1922 he also bought a small quantity of morphine from him. With the exception of the testimony which will be treated later, relative to the question whether or not the defendant was living with his wife at 3117 East Tenth street when the morphine was seized and Mrs. Grantello made the sale to Mrs. Shreves, the foregoing was all the evidence presented by the government in support of its charge that the defendant was in possession of the morphine when the officers took it, or of its charge that he aided or abetted Mrs. Grantello in making the sale to Mrs. Shreves, or of the charge that he, jointly with his wife, purchased, on or about the 29th day of March, 1923, 40 ounces of morphine.

The defendant had demurred to each count of the indictment on the ground that it was insufficient, and did not set out the facts and circumstances of the offense, so as to apprise him with what he was charged, or to enable him to prepare his defense, and those demurrers were overruled. He presented to the court below a petition for a bill of particulars under each count of the indictment on the same ground, and that petition was denied. He was not charged in the indictment with any of the sales, possessions, or offenses about which Gunderson and Prewitt testified, nor was he on trial for any thereof. They were in no way connected with any of the offenses charged in the indictment, and no question of the intent of the defendant was material or in issue in this case. It is neither competent, fair, nor just to a defendant to receive evidence against him of like offenses to those charged in the indictment under which he is on trial, where no question of his intent is in issue, and no connection between such offenses and those charged is proved. Marshall v. United States, 197 F. 511, 513, 515, 117 C. C. A. 65; Scheinberg v. United States, 213 F. 757, 760, 130 C. C. A. 271, Ann. Cas. 1914D, 1258; Fish v. United States, 215 F. 544, 551, 552, 132 C. C. A. 56, L. R. A. 1915A, 809. If there had been substantial evidence of the defendant's dominant possession of the 40 ounces of morphine when it was seized, it may be that the testimony of Gunderson and Prewitt would have been admissible to show that he was a dealer; but there was no such substantial evidence, and in the absence of it the testimony of Gunderson and Prewitt was immaterial and negligible.

We turn to the remaining question: Was there substantial evidence that the defendant was living with his wife at No. 3117 East Tenth street on March 29, 1923, when the morphine was found and seized? The claim of the defendant was that he separated from his wife in August, 1922, and did not live with her in the Grantello house, or take any meals there between August, 1922, and some time subsequent to March 29, 1923, when the discovery and seizure were made. This was the substance of the evidence on that subject for the government: Officer...