Harbour v. United States

• Decision Date: 19 January 1932
• Docket Number: No. 6311.,6311.
• Citation: 54 F.2d 1
• Parties: HARBOUR v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

54 F.2d 1 (1931)

HARBOUR v. UNITED STATES.

No. 6311.

Circuit Court of Appeals, Fifth Circuit.

December 11, 1931.

Rehearing Denied January 19, 1932.

G. de Graffenried, of Dallas, Tex., for appellant.

Sarah Cory Menezes, Asst. U. S. Atty., of Dallas, Tex., and Norman A. Dodge, U. S. Atty., of Fort Worth, Tex., for the United States.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

The appellant, Stix Harbour, was convicted of conspiring with Beulah Cates to violate the Harrison Narcotic Act (26 USCA ? 211, and ? 691 et seq.) by unlawfully purchasing and selling morphine. He assigns as error the refusal of the court to instruct a verdict of not guilty at the close of the prosecutor's case, the refusal to give certain requests to charge, and the admission of certain evidence over objection. The appellant introduced evidence after the refusal to instruct the verdict, and did not, at the close of all the evidence, renew his motion. He thereby waived the error, if any, in the refusal. But we are satisfied that the evidence warranted the verdict of guilty. It was to the effect that Beulah Cates took money from the government witness, who had no order form, and, after telephoning, said she was going to meet Harbour at a nearby corner, was seen to meet some one there in a Buick roadster, and soon returned with an unstamped package of morphine. The following day, after again telephoning, she was given $60 of marked money, and again, saying that Harbour would meet her at the same place, did meet him near the corner, he being in a Buick roadster, and started off with him when they were both overtaken and arrested, Harbour having $55 of the money in his possession, and the other $5 being later found at Beulah Cates' home. When arrested, Harbour said the $55 was his; that he got it from Beulah Cates; that they were on the way to get an ounce of morphine, but had not yet gotten it. Later he said he was not selling the morphine, but just getting it for her. He admitted getting the ounce for her the day before also, but claimed he did not sell it or get any money out of it. No morphine was found on his person. His own admissions, though later denied by him, if credited by the jury, amply warranted conviction of criminal co-operation by agreement with Beulah Cates in the illegal purchase and sale by her of morphine; or the circumstances taken together justify a belief that she was for a commission helping him to sell it.

The error assigned on the refusal to give in charge written requests cannot be considered for lack of proper exception. The bills of exception signed three weeks after the trial state that the requests were presented to the court at the close of the evidence, but do not state that before the jury retired any exception had been taken to the failure or refusal to charge them. In certifying the bills, the judge expressly states that no exception was taken. The salutary rule of federal procedure is, that rulings made during a trial must be openly and definitely excepted to before the jury leaves the bar, that the court and the opposing party may be positively and clearly informed that the ruling is not acquiesced in, but is to be made the basis of an appeal. This is but fair to the court and to the opposing party, gives an opportunity for reconsideration, and tends greatly to limit error and save new trials. Walton v. United States, 9 Wheat. 651, 6 L. Ed. 182; Newport News & Mississippi Valley Co. v. Pace, 158 U. S. 36, 15 S. Ct. 743, 39 L. Ed. 887; United States v. U. S. Fidelity & Guaranty Co., 236 U. S. 512, 529, 35 S. Ct. 298, 59 L. Ed. 696. We are aware that by statute in Texas, in which state the trial occurred, it is unnecessary in the state courts to except to a refusal to give a written request to charge in order to assign error upon it; but the statute has no application to appellate procedure in the federal courts. The Conformity Statute (28 USCA ? 724), is limited to civil cases at law, and, even in those, the matter of taking exception is not controlled by the state practice, but by federal statutes and the common law. 28 USCA ? 776, note 4. The precise point here involved was settled upon a similar statute of California in St. Clair v. United States, 154 U. S. 134, 153, 14 S. Ct. 1002, 38 L. Ed. 936. See, also, Southern Transportation Co. v. Ashford (C. C. A.) 48 F.(2d) 191. The Circuit Courts of Appeal...