Hamilton v. United States, 15203.

Decision Date26 April 1955
Docket NumberNo. 15203.,15203.
Citation221 F.2d 611
PartiesCharles Eugene HAMILTON, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Frank W. Oliver, Chicago, Ill., for appellant.

William O. Braecklein, Asst. U. S. Atty., Dallas, Tex., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.

Before HOLMES and RIVES, Circuit Judges, and WRIGHT, District Judge.

HOLMES, Circuit Judge.

The appellant was convicted on counts 2, 3, and 4, of a four-count indictment, of three violations of the Marijuana Tax Act of 1937, as amended, 26 U.S.C. A. § 2590 et seq. Count 2 charged the transfer of 60 grains, count 3 charged the transfer of 75 grains, and count 4 charged the transfer of 70 grains, of marijuana, not in pursuance to a written order on a form issued in blank for that purpose as required and provided by said act. The trial court sentenced him to two years imprisonment on each count, to run consecutively, making a total sentence of six years.

The errors relied on for reversal are alleged to arise out of the failure of the court to grant the defendant a fair trial, consisting of erroneous and misleading instructions, prejudicial comments by the trial judge in the presence of the jury, misbehavior of the government's attorney, illegal evidence introduced over the objections of the defendant, and the complete failure of the government to present any evidence disproving the defendant's plea of entrapment. In our opinion, none of these assignments of error is sufficiently substantial and meritorious to warrant reversal except the one with reference to instructions to the jury on the subject of the defendant's plea of entrapment.

We do not approve of all the questions asked witnesses by either the court or the district attorney, but the objectionable ones were withdrawn, did no appreciable harm, and are not likely to be repeated on another trial. The assignment with reference to "the complete failure of the government to present any evidence disproving the defendant's plea of entrapment" seems to us to be wholly without merit. The proof of entrapment is weak, and the proof to the contrary is strong; but that question was not for the court below, and is not for this court. The matter of entrapment was an issue for the jury, and should have been correctly submitted to the jury, regardless of what either the lower court or this court may think about appellant's guilt.

The defendant requested the following instruction, Tr. 134, which we think should have been given:

"The Court instructs the jury that the defendant Hamilton has plead the defense of entrapment.
"The defense of entrapment is a good one in law and arises under certain circumstances. Where a defendant charged with the unlawful sale of marijuana was not and had never been a dealer in marijuana, had never sold any before, nor conceived an intention to do so, but was induced by the Government agent to sell to him, the whole transaction being a device of the narcotic agent who furnished the money to entrap, arrest and prosecute him, then the jury is instructed to find the defendant `not guilty\'."

Instead, the court gave its own instruction, pp. 128-129 of transcript, as follows:

"The defendant, in addition to the ordinary plea of not guilty, requiring the government to prove him guilty, has interposed the defense known as entrapment.
"Entrapment arises from a situation, as you will know from the charge I give you on the subject, that is based upon falsehood or fraudulent representations made by a government agent that induces a man to commit a crime which he would not have otherwise committed.
"The Court instructs you that it is permissible for the government agent and official, through detectives and decoys, to ferret out crime, or to present an opportunity for those having an intent or a willingness to commit crime. In order to ascertain, or to determine if crime is present there it is not proper for the government agent or detective or decoy, however, to incite or create crime for the purpose of prosecuting or punishing.
"Where the government agent in his zeal, or for any other cause, counsels or otherwise leads the defendant to believe, or arouses his
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29 cases
  • U.S. v. Johnson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 25 Febrero 1983
    ...1949, 338 U.S. 84, 89, 69 S.Ct. 1447 [1450, 93 L.Ed. 1826]; Brooks v. United States, 5 Cir., 1957, 240 F.2d 905; Hamilton v. United States, 5 Cir., 1955, 221 F.2d 611, 615; Schwachter v. United States, 6 Cir., 1956, 237 F.2d 640, 644; United States v. Gollin, 3 Cir., 1947, 166 F.2d 123, 126......
  • Roe v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 Mayo 1961
    ...States, 1949, 338 U.S. 84, 89, 69 S.Ct. 1447, 93 L.Ed. 1826; Brooks v. United States, 5 Cir., 1957, 240 F.2d 905; Hamilton v. United States, 5 Cir., 1955, 221 F.2d 611, 615; Schwachter v. United States, 6 Cir., 1956, 237 F.2d 640, 644; United States v. Gollin, 3 Cir., 1947, 166 F.2d 123, 12......
  • Henderson v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 Octubre 1956
    ...was entrapped into committing that offense. The district court may well have relied upon the language of this Court in Hamilton v. United States, 5 Cir., 221 F.2d 611, 614: "Entrapment is a valid, positive defense, in certain circumstances, the invocation of which necessarily assumes that t......
  • U.S. v. Garrett
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 19 Septiembre 1983
    ...States, 343 F.2d 139, 143 (5th Cir.1965); Henderson v. United States, 237 F.2d 169, 173 (5th Cir.1956). See also Hamilton v. United States, 221 F.2d 611, 614 (5th Cir.1955) (defendant permitted to deny charge and assert entrapment; the court noted, however, that the defense of entrapment "a......
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