Harris v. United States, 15573.
| Decision Date | 02 October 1957 |
| Docket Number | No. 15573.,15573. |
| Citation | 248 F.2d 196 |
| Parties | Nathaniel HARRIS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Sidney M. Glazer, Berkeley, Mo. (Morris A. Shenker and Bernard J. Mellman, St. Louis, Mo., were with him on the brief), for appellant.
Robert C. Tucker, Asst. U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., and Robert E. Brauer, Asst. U. S. Atty., St. Louis, Mo., were with him on the brief), for appellee.
Before SANBORN, WOODROUGH, and VAN OOSTERHOUT, Circuit Judges.
The appellant Nathaniel Harris was indicted together with Gladys Stamps and Clarence Robinson in two counts for (1) purchasing 224 grains of the narcotic drug heroin other than in or from the original stamped package in violation of Sec. 4704(a), Title 26 United States Code1 and (2) for receiving and concealing the heroin knowing that it had been imported contrary to law, in violation of Sec. 174, Title 21 U.S.C.A.2
The evidence on the jury trial tended to show that two St. Louis policemen, Nathaniel Robinson Jr. and Robert Foxworth, on duty as beat policemen at about two o'clock of the morning of February 8, 1956, went to the intersection of Page Boulevard and Taylor Avenue in St. Louis where they had a meeting with someone to get information, then went to a certain four room apartment house at 4567 McMillan. They approached the house through the alley towards a lighted room on the ground floor. The house had two windows facing south. Officer Robinson stood on a can and looked into the room through a gap an inch and a half wide between the shade and the sill of one of the windows. Foxworth stood on a grating and looked into the room through a similar view space in the other window. Officer Foxworth saw appellant Harris in the room, was close enough to him to reach him, and was positive of his identification. According to Foxworth, Harris was looking at something he was holding in his left hand and over which he made a motion with his right hand. Officer Robinson did not see Harris but he saw defendant Gladys Stamps in the room standing alongside Robinson, who was seated next to a bed on which there was some powder piled on a mirror. Robinson had his hand in the white powder on the bed. After short observation through the windows the officers entered the room together, but the inmates became aware of their approach and got out of the windows and ran away before the entry of the officers, leaving behind the powder on the mirror, some filled capsules, a box of empty capsules, some eye droppers with needles attached and a flour sifter. There were also capsules in a coat in the room. It was shown that the powder on the mirror was 42 grains of heroin and that there were 169 capsules filled with heroin. The heroin and paraphernalia were identified and put in evidence before the jury.
Bernard A. Theisen Jr., a narcotic agent employed in the St. Louis office, testified for the government that he had talked to the defendants Robinson and Stamps in the jail about two months after the occurrence at 4567 McMillan and each of them told him that the three defendants had been in the room (as claimed by the government) and that the heroin belonged to appellant Harris.
The defendant Robinson did not take the stand, but on the trial Harris and Stamps testified that Harris was not present in the room at 4567 McMillan on the night of the raid. Stamps testified that the third person in the room at the time in question was one Gola Mason. Gola Mason was called as a witness and corroborated Stamps' testimony. He swore positively that he was present, saw the powder and paraphernalia and that Harris was not there. He said he ran away with the others on the approach of the officers.
Grace Draper, a witness for Harris, testified that on the night in question she had just returned to her home at 1259 Aubert street from the hospital where she had had a baby. Harris was the father of her baby and had not seen it. He came to her house between 11:00 and 11:30 on that night and left early in the morning at about six o'clock. She said that Gola Mason, who was a cousin of Harris, also came to the house and made statements in her hearing indicating that he had been at the scene of the police raid. All of the defendants were convicted on both counts and Harris was sentenced to an aggregate term of 10 years imprisonment and a fine of one dollar.
Harris appeals and contends for reversal:
(1) that the evidence was insufficient to support the verdict; (2) that hearsay evidence which was very prejudicial to him was erroneously received; (3) that the court erred in instructing the jury and (4) that the court erred in imposing cumulative sentences against him.
1. Examination of the evidence convinces that there was competent and material evidence that Harris was present with the other defendants in the room at 4567 McMillan where unstamped heroin was being handled, that Harris was "shown to have had possession of it," and to be a "person in whose possession it was found" within the meaning of the sections of the statute on which the indictment was rested. It is fairly inferable from the picture presented by the evidence and the jury could well have concluded that defendants, gathered in the room about their pile of heroin with the filled and unfilled capsules and paraphernalia for filling capsules and taking heroin, were engaged, as the government claimed, "in what is called in the vernacular of the business, `capping up' heroin." The jury was not obliged to credit the evidence offered by Harris to establish an alibi.
2. Appellant contends the court erred in permitting the government witness Theisen to testify to hearsay statements made to him by the codefendants Gladys Stamps and Clarence Robinson. Theisen's testimony was that both Gladys Stamps and Clarence Robinson told him at the jail, nearly two months after the occurrence in question, that Harris was the owner of the heroin that was seized and was present in the room when and where the defendants had it. It is not seriously disputed that viewed from certain angles that testimony was hearsay. As to defendants Gladys Stamps and Clarence Robinson it was not hearsay but constituted a confession of guilt on their part and a description of their crime that was plainly admissible against each of them. The position of Gladys Stamps was different from that of Robinson because Gladys Stamps became a witness for Harris on the trial and gave testimony in support of his alibi. She swore that Harris was not in the room with her and Robinson or in possession of the heroin. Her contradictory statements to Theisen that Harris was in the room with her and Robinson, that the heroin belonged to Harris, and that he was the person from whom she (a confirmed narcotic addict) "copped" were also plainly admissible against her. Robinson did not take the witness stand.
Appellant Harris did not raise the objection on the trial that the statements Gladys Stamps and Robinson had made to Theisen were hearsay against Harris. But he was represented by counsel of his choosing, whose competency is not questioned, and may well have purposely determined to waive hearsay objection and let the statements be received in order to get the benefit of Stamps' testimony supporting his claimed alibi. In view of the apparent waiver of the hearsay objection it must be held that the court did not commit reversible error in receiving the testimony of Theisen in evidence or in not giving to the jury an explanation that was not requested, of the legalistic aspects in which the testimony should be disregarded as hearsay.
Discussion of such rulings or instructions for one in a position like that in which Harris stood on the trial of this case is found in the dissenting opinion of four members of the Supreme Court in Delli Paoli v. United States, 352 U.S. 232, 246, 77 S.Ct. 294, 1 L.Ed.2d 278. Citing Nash v. United States, 2 Cir., 54 F.2d 1006, 1007.
3. The instructions given by the court are attacked here on the ground that they permitted the jury to convict Harris if they found that he had the described heroin in his possession without requiring them to find as a fact as to the first count that he purchased the heroin and as to the second count that he did receive and conceal it knowing that it had been imported into the United States contrary to law....
To continue reading
Request your trial
-
Anthony v. United States
...it." (359 U.S. p. 20, 79 S. Ct. p. 562, 3 L.Ed.2d 597) But a review of the facts disclosed in the opinion of the court of appeals (8 Cir. 1957, 248 F. 2d 196) reveals no "actual, physical" possession of the heroin in defendant Harris, but merely that he was identified by one of two police o......
-
Orser v. United States, 22919
...is obvious, therefore, that the defendant conceded this point, Carpenter v. United States, 8 Cir., 1940, 113 F.2d 692; Harris v. United States, 8 Cir., 1957, 248 F.2d 196; affirmed 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597; rehearing denied 359 U.S. 976, 79 S.Ct. 873, 3 L.Ed.2d 843; Smith v.......
-
Goodman v. United States
...may not here for the first time predicate error on a matter to which the trial court's attention was not directed. Harris v. United States, 8 Cir., 1957, 248 F.2d 196, affirmed 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597; Canton v. United States, 8 Cir., 1955, 226 F.2d 313, certiorari denied 3......
-
Vincent v. United States
...even though arising from one common transaction. Gargano v. United States, 140 F.2d 118 (9th Cir. 1944); Harris v. United States, 248 F.2d 196, 201 (8th Cir. 1957), aff'd 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959), reh. denied 359 U.S. 976, 79 S.Ct. 873, 3 L.Ed.2d 843 The trial court d......