Hamilton v. United States, 15203.
Decision Date | 26 April 1955 |
Docket Number | No. 15203.,15203. |
Citation | 221 F.2d 611 |
Parties | Charles Eugene HAMILTON, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.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.
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of all the questions asked witnesses by either the court or the district attorney, but the objectionable ones were withdrawn, did no appreciable harm, and are not likely to be repeated on another trial.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:
Instead, the court gave its own instruction, pp. 128-129 of transcript, as follows:
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