Harrison v. United States

Decision Date06 April 1925
Docket NumberNo. 274.,274.
Citation7 F.2d 259
CourtU.S. Court of Appeals — Second Circuit

John B. Johnston, of New York City (Anthony J. Ernest, of New York City, of counsel), for plaintiffs in error.

Emory R. Buckner, U. S. Atty., of New York City (William Berg, Asst. U. S. Atty., of New York City, of counsel), for defendant in error.

Before ROGERS, HOUGH, and HAND, Circuit Judges.

HAND, Circuit Judge.

Six defendants were indicted. All pleaded not guilty but eventually two changed these pleas, Turner and De Meglio, and pleaded guilty. A nolle prosequi was entered against another, Smith. The other three, Rush, Harrison, and Murphy, were brought to trial and convicted under all three counts. Rush took no writ of error, and the case comes up upon that of Harrison and Murphy alone.

The evidence allowed the jury to find the following facts: Smith was in possession of large quantities of cocaine, which he wished to dispose of unlawfully. He called up Turner, an iron worker, whom he had known for some years, and asked him to visit him at his place of business. Turner went and received 3,000 vials of cocaine for sale, which he later gave to De Meglio to keep for him. Shortly thereafter Turner met Murphy and asked him if he could sell any of the vials, telling him that he thought they were cocaine. Murphy answered that he believed that he had a man to sell them. Later Murphy and Turner went to Harrison with two samples which Murphy gave to him. Turner gave other samples to Murphy, on which Murphy tried to make a sale, but the samples were turned back to him as unsatisfactory. Turner told De Meglio to bring 500 vials to Harrison's office and to meet him there. When De Meglio arrived, Turner was not there, and he left the vials in Harrison's office, telling him that he had a package for Turner which he was to leave, to which Harrison assented. The sale of these 500 vials was made by Rush to Percetta, a government agent, through the intermediation of Velke, an informer. Rush was arrested, and later Turner, Harrison, Murphy, and De Meglio.

The complicity of all the defendants in a conspiracy to sell cocaine unlawfully is so abundantly shown that it seems to us idle to go over the evidence in detail. What weight the jury attached to the testimony is of course beyond our review. Since the defendants were sentenced cumulatively to four years on each of the sale counts and to two years on the conspiracy counts, it is, however, of great importance to them to inquire whether they were also implicated in the sale of Rush to Percetta.

The proof as to Harrison was clear enough. He indeed admitted that he had allowed his office to be used for the sale, which alone would make him an accessory. But the proof went much further than that, since it was to him that Murphy gave the sample which Rush must have used in the sale of Percetta. Turner knew Rush but had not seen him in this connection; nor had Murphy so far as appeared. Again Rush swore that he got the samples from Harrison, that Harrison, agreed to the terms of the sale, and that he got the vials for him. It does not appear how he could have got them at all except through him, unless it was by direct communication with Turner, which Turner denied, as we have said. His declaration to Velke that Harrison was not concerned with the sale was no doubt proof to the contrary, but that was for the jury. It may have been to cheat Harrison or to protect him. In any case Harrison knew of the proposal, and sought to get the money in his hands.

As to Murphy, the case is not so clear, but we think it is clear enough. He was the one who told Turner that he could get him a man to sell the cocaine, and who went with him to Harrison's, where he gave the samples to Harrison which Rush later used in his negotiations with Velke. This, if true, certainly made him an accessory to the resulting sale. Again, Murphy appeared at Harrison's soon after the sale, and, apparently in ignorance of the arrest, inquired of a government agent whether "they" had come back. The circumstances allowed the jury to infer that he meant Velke and Rush and was privy to this especial sale. While his privity with the general plans of the others was not of itself enough, it made a setting that required very little more to connect him with any particular transaction which Harrison might direct. Without saying how far the evidence might have convinced us, we believe that it justified the jury in concluding that Murphy was an accessory.

The other points concern the general conduct of the trial. The verdict as recorded was against the two defendants on all counts, though the bill of exception shows that the jury merely returned a general verdict. The clerk's minutes probably control in any event, but aside from this, as the defendants were charged jointly, a general verdict was good on all counts. Brimie v. U. S., 200 F. 727, 119 C. C. A. 170 (C. C. A. 7). Besides, no objection was taken to the entry of the verdict as recorded, and the objection is purely technical.

The nolle prosequi against Smith did not affect the result. As to the sale, the crime charged remained the same; as to the conspiracy, it is enough that more than one were convicted. It is no variance to allege a conspiracy of six and prove one of five. Our decision in Feder v. United States, 257 F. 694, 168 C. C. A. 644, 5 A. L. R. 370, touched a conspiracy between only two, and held that, if the judgment was reversed as to one, it must be reversed as to the other. It has no application to the case at bar.

The court charged that the jury should convict if they believed the government's witnesses. The charge was too broad, since there were inferences of fact for the jury to draw from the testimony, even though it were true. However, no objection was taken at the time, and it is now too late after the time had passed when the error could have been corrected. It was of minor consequence anyway, since the defendant's guilt was in substance established if the government's witnesses did speak the truth. The same considerations dispose of the error in the charge...

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