Kolp v. United States

• Decision Date: 02 December 1924
• Docket Number: No. 4106.,4106.
• Citation: 2 F.2d 953
• Parties: KOLP v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

2 F.2d 953 (1924)

KOLP v. UNITED STATES.

No. 4106.

Circuit Court of Appeals, Sixth Circuit.

December 2, 1924.

Jere Horne, of Memphis, Tenn. (H. T. Holman, of Memphis, Tenn., on the brief), for plaintiff in error.

W. H. Fisher, Asst. U. S. Atty., of Memphis, Tenn. (S. E. Murray and A. A. Hornsby, Asst. U. S. Attys., both of Memphis, Tenn., on the brief), for the United States.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

PER CURIAM.

The question of guilt or innocence on a charge involving a single sale of one-half pint of moonshine whisky to prohibition officers turned entirely upon the credibility of the witnesses. A delivery of the whisky by a young negro lad, and handling of money in connection therewith by defendant, were established. The conflict was as to whether the lad was in defendant's employ, acted as defendant's agent, went to defendant's house and got whisky belonging to defendant, or whether the lad was employed by a bootlegger who happened to be at defendant's slaughter-house delivering some cattle sold to him, heard the officer ask defendant for whisky, volunteered to get it, got it from the bootlegger, and merely received the price, 75 cents, from defendant; the latter's connection being solely as one who, at the officer's request, changed a $1 bill, giving the lad the 75 cents and the officer the 25 cents. Defendant's version was supported by a number of witnesses, largely his employés or friends. Two of the four officers named in the indictment as purchasers testified for the government. The negro lad was not produced. Defendant and his witnesses testified that they did not know him or his or the bootlegger's name.

While, on cross-examination of the first witness, defendant's counsel stated, in answer to the court's inquiry, that he relied upon the defense of entrapment, in fact the defense was a complete denial of any participation in the sale. In so far as counsel's statement caused the court to admit evidence which would have been admissible only if entrapment were in the case, error cannot be assigned; but such evidence, alleged statements by several people to the government officers that the latter could buy whisky at defendant's place, was admitted over objection in the very beginning of the examination of the first witness. True, the court stated at the time that it was admitted solely to show why the officers went to defendant's place and for no other purpose; but, when this highly prejudicial statement was received, it was entirely immaterial why the officers went there. See Biandi v. U. S., 259 F. 93, 170 C. C. A. 161. In the recited circumstances, this error alone probably would not justify a reversal, even though the court, in charging the jury, failed to repeat this restricted purpose of the admissibility of this testimony,...