Kalos v. United States

• Decision Date: 17 November 1925
• Docket Number: No. 7067.,7067.
• Parties: KALOS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

9 F.2d 268 (1925)

KALOS v. UNITED STATES.

No. 7067.

Circuit Court of Appeals, Eighth Circuit.

November 17, 1925.

F. W. James, of Salt Lake City, Utah (John D. Rice, of Salt Lake City, Utah, on the brief), for plaintiff in error.

Edward M. Morrissey, Asst. U. S. Atty., of Salt Lake City, Utah (Charles M. Morris, U. S. Atty., and J. Kimball Smith, Asst. U. S. Atty., both of Salt Lake City, Utah, on the brief), for the United States.

Before LEWIS and KENYON, Circuit Judges, and MUNGER, District Judge.

LEWIS, Circuit Judge.

Plaintiff in error, herein called defendant, whose true name is D. Pappadakis, was jointly indicted under the name of J. Kalos with one John Leventis, for violation of the Act of February 9, 1909, 35 Stat. 614, as amended by the Act of January 17, 1914, 38 Stat. 275 (Comp. St. § 8801), in that on May 16, 1924, at the City of Bingham Canyon, Salt Lake County, Utah, they did unlawfully receive and conceal a certain narcotic drug, to wit, morphine, which had been unlawfully imported into the United States, they then and there well knowing the same to have been unlawfully imported. Mr. Spencer was the first witness for the prosecution. He testified "that he was an officer in the Customs Department; that the package marked Defendant in Error's Exhibit 1 was received and opened by him, that he notified the Marshal's office and the package was turned over to the Department of Justice." Mr. Barnard, the postmaster at Bingham Canyon, was then called. He testified that he received the package on the 10th day of May, addressed in a penalty envelope, and a letter from Mr. Watts, Federal Narcotic Agent, and delivered the package to the defendant on the 15th of May, that at that time Leventis was with him. Mr. Harms testified that he was State chemist, that he "examined the Defendant in Error's Exhibit 1," analyzed the drug in the package and found it to be morphine. No one stated the quantity of morphine in the package. Mr. Fullmer testified that he was a police officer at Bingham Canyon, that he was at the postoffice and saw the defendant and Leventis go in, he first saw the package in defendant's hand and then he saw him hand it to Leventis, he took the package from Leventis, he arrested both of them and searched them at the police station and found on defendant the letter marked Exhibit 2. Exhibit 2 is a letter written in Greek, dated at Canea, Crete, Greece, on April 8, 1924, signed E. K. Pappadakis. Exhibit 3 is an English translation of that letter, which was read into the record. The prosecution offered in evidence Exhibits 1, 2, 3 and 4, but the record does not disclose what Exhibit 4 was. The postmaster further testified that when the package first came he telephoned to Leventis, who was the proprietor of the Copperfield Hotel, and asked him if this man lived there. After that Charles Kallas came down and asked for the package. He further testified that Leventis was with defendant when he delivered the package, that Leventis did all the talking and told him defendant's name was J. Kalos, that defendant produced a letter at the request of Leventis written in Greek, in the body of which the name J. Kalos appeared. On that subject this is the postmaster's testimony:

"Leventis told me that this man was J. Kalos.

"Q. What was said, just state what he said relative to having two names. A. Leventis said that he had two names, and he had Kalos produce a letter. They produced the letter and the letter had a name in it.

"Q. What was that, if you remember? A. The same, J. Kalos.

"Q. What was the name on the letter he produced, Mr. Barnard? A. Well, it was in the body of the letter. The letter was written in Greek and the name J. Kalos appeared. That is all that was said about his having two names."

To all of this testimony defendant's counsel objected and excepted to the ruling admitting it, on the ground that it was hearsay, and assigns error.

Defendant testified that he resided in Salt Lake City, that he was in the employ of the Liberty Bottling Works there and occasionally delivered soda water in Bingham Canyon, that while in Bingham Canyon on the business of his employer he met George Kalos, who told him there was a box at the postoffice which George thought was his, but he said it was addressed to J. Kalos instead of G. Kalos, and he told the defendant to go to the postoffice and see whether it was for him, that he went to the postoffice in company with Mr. Drossos and was told there was nothing there for him, later he was at the Copperfield Hotel and Leventis told him a package had been brought to the hotel with the name J. Kalos on it and for him to go down and get it. He did not go, and later Leventis phoned him, and in response thereto he went to the postoffice and found Leventis and the postmaster there, he could not speak or understand English, he is a Greek, and Leventis did the talking, he did not understand the conversation between Leventis and the postmaster, he "told Leventis to tell the postmaster to open the package to be sure it was mine," but he did not know what Leventis told the postmaster. He further testified that he thought the package was a book because he had been told it was a book, and did not know it contained morphine, that he does not go by the name J. Kalos but people who want to tease him call him Kalos, that the postmaster handed the package to him and he handed it to Leventis, telling him to put it in the car, he would see him up there. The two were immediately arrested and the package taken from Leventis.

E. K. Pappadakis, who apparently wrote the letter Exhibit 2, lived in Utah at one time and had returned to Greece, but how long ago does not appear. That letter is not directed to any named person, and the address on the envelope in which it came is not in the record. Defendant admitted he received it, that E. K. Pappadakis was his friend. It is written in familiar and friendly terms and contains this:

"* * * The things which you know, it is not easy, but with pull I think I will make it with pull. I will do something. I could not buy any more but only two drams, but later on will have all I want and will send it. It is not worth while about the two, but as soon as it comes will send it. Only write to me if the price is satisfactory, which you know cost 30 drachmas a dram, besides the way I get it. Write me quick as possible soon as you get my letter, so I will know how to fix things up. I can buy M and can buy 5 O K. Nothing new out here."

The letter does not purport to be in response to a letter, and defendant testified that he had not written to E. K. Pappadakis, that he did not go to the postoffice intending to receive morphine.

To make out its case it was necessary that the prosecution establish two facts: First, that the morphine had been unlawfully imported; and, secondly, that defendant received it knowing that it had been unlawfully imported. The first fact could not be found on the record brought here. No witness testified that the morphine had been imported. There is nothing in the testimony tending to show that the package came from Greece, from where it came, or when it came into the United States. We first find it in the hands of an officer in the Customs Department. The record does not show where he received it, when he received it or from whence he received it. It was then turned over to the Department of Justice, when, where and to whom is not stated. It got into the hands of a narcotic agent and he...