Henry Woo v. United States, 3723.

• Citation: 73 F.2d 897
• Decision Date: 23 November 1934
• Docket Number: No. 3723.,3723.
• Parties: HENRY WOO v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

73 F.2d 897 (1934)

HENRY WOO v. UNITED STATES.

No. 3723.

Circuit Court of Appeals, Fourth Circuit.

November 23, 1934.

Lon G. Marks and D. L. Salisbury, both of Charleston, W. Va. (Salisbury, Hackney & Lopinsky, of Charleston, W. Va., on the brief), for appellant.

L. R. Via, Asst. U. S. Atty., of Huntington, W. Va. (George I. Neal, U. S. Atty., of Huntington, W. Va., on the brief), for the United States.

Before PARKER and NORTHCOTT, Circuit Judges, and MYERS, District Judge.

MYERS, District Judge.

Appellant was convicted under an indictment containing three counts, the first of which charged conspiracy to violate section 174 of title 21 of the United States Code (21 USCA § 174), and the second and third of which charged violation of that section; and he was sentenced to a term of two years in the penitentiary. His principal contention in this court is that verdict should have been directed in his behalf because of the insufficiency of the evidence to sustain the charges contained in the bill of indictment. A careful examination of the testimony convinces us, however, that the motion to direct a verdict in his behalf was properly denied.

There can be no question as to the sufficiency of the evidence to sustain the verdict on the second and third counts of the indictment. These counts charged him with receiving and concealing narcotic drugs in violation of the act on February 9, 1934, and February 17, 1934, respectively; and he admitted having had in his possession on these dates packages which were shown to have contained the drugs as charged. His defense was that he was not aware that drugs were contained in them; but this was a question for the jury. The section creating the crime provides: "Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury." As there was unquestionably evidence to take the case to the jury, therefore, on the second and third counts of the indictment, the motion to direct a verdict was properly denied. Even if there were not sufficient evidence to sustain the charge of conspiracy contained in the first count, the appellant would have no ground to complain, as the punishment imposed upon him was less than might have been imposed under either of the other counts. Barton v. U. S. (C. C. A. 4th) 25 F.(2d) 967; Orth v. U. S. (C. C. A. 4th) 252 F. 569; Kennedy v. U. S. (C. C. A. 4th) 275 F. 182.

But we think that there was ample evidence to take the case to the jury on the first count as well as the others. There was unquestionably a conspiracy to transport narcotic drugs by Kun Woo and others. The evidence showed that appellant aided in carrying out the purposes of this conspiracy by transporting narcotic drugs on a number of occasions. And there was proof of circumstances justifying the inference that appellant had knowledge of the unlawful conspiracy when he thus aided in the unlawful transportation. At the instance of Kun Woo he went to the office of a bus line by which the drugs were transported on a number of occasions and received packages of drugs. He stated that Kun Woo did not tell him the packages contained opium, but told him it was some kind of foodstuff or Chinese drug or medicine. He invariably went late at night. He gave receipts for the packages in a fictitious name. And when the premises of Kun Woo were searched, implements for smoking opium were found in a room which could be entered only through a room occupied by appellant.

Assignment No. 1 is directed to the court's refusal to permit appellant's counsel to ask on direct examination whether a character witness offered by him had ever heard appellant's reputation attacked in any manner before this trouble. The sequence of the examination of the witness is not very clearly disclosed by the record. It does show that the witness qualified by stating that he knew the defendant and his general reputation, and that he stated that defendant's general reputation was good. It further appears that witness had never heard defendant's reputation discussed before this charge was brought against him, but did hear it discussed after his arrest. The exception seems to be based on the court's disagreement with defense counsel's statement that negative evidence was the best as to character. The record shows that appellant had the benefit of both positive and negative testimony on this point, and its value was for the jury, as they were properly charged.

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