Lee Dip v. United States, 8527.

• Decision Date: 09 December 1937
• Docket Number: No. 8527.,8527.
• Parties: LEE DIP v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

92 F.2d 802 (1937)

LEE DIP v. UNITED STATES.

No. 8527.

Circuit Court of Appeals, Ninth Circuit.

November 8, 1937.

Rehearing Denied December 9, 1937.

Clifford A. Russell and A. M. Mull, Jr., both of Sacramento, Cal., for appellant.

H. H. McPike, U. S. Atty., and Val Hammack and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

The appellant was convicted under an indictment found pursuant to 21 U.S.C.A. § 174,¹ charging the felonious concealment of approximately 45 grains of smoking opium.

The opium was found in jars in the bathroom of appellant's living quarters. It is claimed that error was committed in the reception of testimony concerning the finding of other narcotics on the person of another Chinese, and in the admission of these narcotics in evidence.

It was shown that a federal narcotic agent, in company with other officers, searched the premises of the appellant in the town of Walnut Grove. The appellant was not present at the time of the search. His premises consisted of a store in the ground floor and living quarters above occupied by him and his family. Soon after the officers entered the store, one Chin Fook came into the place through a back door. He was carrying a bag. He was seized by the officers, whereupon he dropped the bag and attempted to dispose of some articles which he had in his pockets. These articles proved to be bindles of morphine, cocaine, yenshe, and opium. In the bag were two opium smoking pipes and four opium smoking bowls. After finding these articles on Chin Fook, the officers searched the upstairs living quarters. Here were found on the kitchen table Chinese scales of a type customarily used in weighing narcotics; one cup of the scales containing opium. With the scales were several pieces of green and white cellophane paper which were identical in texture and appearance with the papers in which were wrapped the bindles of narcotics found on Chin Fook. There were other cellophane papers of the same type on the dresser in appellant's bedroom. This paper was of the sort ordinarily used in wrapping narcotics. In addition to the jars containing the 45 grains of smoking opium which were the subject of the indictment, there were also found in the living quarters some jars of she water and a paper cutter. In a cigar box in appellant's desk in the store below were discovered connections for opium pipes.

Testimony concerning the incident with Chin Fook was admitted over appellant's objection. He excepted also to the introduction in evidence of the various articles found on the other Chinese; these being the opium pipes and the bindles of morphine, cocaine, and opium. Reversal is asked on the ground that there was no evidence tending to connect appellant with the narcotics found on Chin Fook, and on the further ground that the admission of this testimony and of these articles tended to show the commission of crimes other than that for which the appellant was on trial.

There was evidence that appellant and Chin Fook were partners, at least in the conduct of a nearby gambling house, and it was shown that Chin Fook had a key to appellant's store. Chin Fook was apprehended in the act of entering the premises of appellant, and had on his person at the time the articles and narcotics introduced. These circumstances, taken in connection with the incriminating facts disclosed in the search of appellant's place, were such as to permit of an inference that there was a concert of action between the two...