Honeycutt v. United States

• Decision Date: 17 November 1921
• Docket Number: 1933.
• Citation: 277 F. 941
• Parties: HONEYCUTT v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

277 F. 941

HONEYCUTT v. UNITED STATES.

No. 1933.

United States Court of Appeals, Fourth Circuit.

November 17, 1921

William B. Jones, of Raleigh, N.C. (Armistead Jones & Son, of Raleigh, N.C., on the brief), for plaintiff in error.

M. B Simpson, Asst. U.S. Atty., of Elizabeth City, N.C. (E. F Aydlett, U.S. atty., of Elizabeth City, N.C., on the brief) for the United States.

Before KNAPP, WOODS, and WADDILL, Circuit Judges.

WOODS Circuit Judge.

The indictment charged that the defendant, on July 19, 1920 did--

'unlawfully, willfully, and feloniously buy, receive, and have in his possession, from Cecil Pearce and Tom Williams, knowing the same to have been stolen, which had been stolen by Cecil Williams and Tom Pearce from a certain interstate shipment at Raleigh, N.C., on said date, from car S.S.W. 13828 in the possession of the N.S. Railroad Co., an interstate carrier, consigned from Liggett & Myers Tobacco Co., at Durham, N.C., to B. Facenheimer, at Baltimore, Md., and other parties in other states, certain goods and chattels, which had been moving, and which were a part of, and which had constituted, an interstate shipment of freight or express, to wit, ten (10) cases of Chesterfield cigarettes.'

Before his trial and conviction the defendant by petition asked for an order directing the return of certain goods and paid checks given by defendant, which had been seized under alleged illegal search warrants. The goods and checks were described in a schedule attached to the petition. On the day of the trial, before it began, the court made an order finding that the goods and checks had been illegally seized and directing the return of goods and checks described in the order. The schedule in the order specifying the goods to be returned did not contain '28 1/2 bolts of overall goods' nor '34 dozen bottles of Vick's salve' mentioned in the petition. As no reason for the omission is suggested in the record or the briefs, we assume it was due to inadvertence. But, even if these articles were not returned, neither the omission of them from the order nor the failure to return them could have influenced the jury, for it does not appear that they were used in evidence.

The main error assigned is in allowing the district attorney to call on the defendant on cross-examination to produce checks, hand them to the defendant, and have him to identify them. As it is hardly possible to condense without misrepresentation, we copy from the record the agreed statement of the facts pertinent to the appeal:

'After the United States had offered evidence to maintain the issues on its part, the defendant, to maintain issues upon his part, called as a witness A. J. Honeycutt, who, being duly sworn, testified, upon cross-examination by the district attorney, as follows:

'Testimony of A. J. Honeycutt.

'On direct examination defendant testified that he bought cigarettes and denim, and other things which were stolen from the cars of the railroad, and paid to the parties, Cecil Pearce and Tom Williams, checks in part for same.

That they took the goods and carried them to his store at night, and he would receive them and pay them for the same.

'It also appeared in evidence that the witnesses Cecil Pearce and Tom Williams had, before the trial entered pleas of guilty to an indictment charging the breaking and entry, and larceny of the property charged in the bill from an interstate train, and that their judgment and sentence upon the plea had been withheld pending the trial of this cause.

'The defendant, A. J. Honeycutt, testified that he had paid several checks to Cecil Pearce, Priestly Pearce, and Tom Williams in part payment for the cigarettes, tobacco, denim, harness, and other things which were carried to his store at night; that his store was in the country, and the goods were carried there around 10 and 11 o'clock at night in automobiles; that Cecil and Priestly Pearce were boys about 17 and 19 years of age and had no means; that Tom Williams was a colored man, who was a jitney driver and had no means; that the defendant marked on the check given Cecil Pearce and Tom Williams the words 'for labor,' but the checks were given for these materials.

'The cross-examination then proceeded.

"Q. You say that, when Cecil and Tom went there with those cigarettes, you marked on the check 'for labor'? A. Yes; they said the officers were watching them; that they were not working anywhere.

"Q. Which one of them did you give the check to? A. Cecil.

"Q. Did you give both of the checks to Cecil? A. I don't think I gave but one check.

"Q. It was dated the 20th of July? A. I don't remember the date.

"Q. Where are the checks? A. You have them.'

'Thereupon, the district attorney handed to the witness an envelope containing the checks which had been seized by the officers of the government from the possession of the defendant, and which had been ordered returned to the defendant by the court, and proceeded as follows:

"Q. Will you look in there and find the check that you gave him?'

'The defendant in apt time objected, which objection was sustained by the court.

'By the Court: On Tuesday afternoon the defendant's counsel filed a notice in writing to the government for the return of certain checks and other property and papers taken from the possession of the defendant by the officer under search warrant. See Record. The court stated that it would sign an order directing the return of the checks, to which no objection was made by the district attorney. Wednesday morning the district attorney handed to counsel for the defendant an envelope containing checks and other papers referred to in the notice, together with receipts requesting the counsel to sign the receipt; they stated that they

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