Leslie v. United States
Decision Date | 15 September 1930 |
Docket Number | No. 141.,141. |
Citation | 43 F.2d 288 |
Parties | LESLIE v. UNITED STATES. |
Court | U.S. Court of Appeals — Tenth Circuit |
George R. Craig, of Albuquerque, N. M., for appellant.
Hugh B. Woodward, U. S. Atty., of Albuquerque, N. M. (Gilberto Espinosa, Asst. U. S. Atty., of Albuquerque, N. M., on the brief), for appellee.
Before LEWIS, COTTERAL, and McDERMOTT, Circuit Judges.
The appellant was charged with a third offense of possessing whisky, on February 19, 1929, in a certain building at Carrizozo, N. M. After trial and conviction he was fined $1,000 and sentenced to imprisonment. He appeals, complaining of seven alleged errors, one of which relates to instructions to the jury.
The government's witnesses were a prohibition agent and two sheriffs. They forcibly entered and searched a building at Carrizozo, finding there a keg bearing defendant's name and containing a gallon of whisky, thirteen half-pints of whisky, corks, bottle caps, labels, a rubber tube, a hat and sheep-lined coat, some furniture, and personal belongings. Later, when they met the defendant and told him of the search, he stated he had recently given up the place, but did not have time to remove his effects, and he declined to name the new tenant of the premises, referring them to the owner. One of the officers had seen the defendant wear a similar hat and coat.
On the other hand, the defendant testified that he had formerly occupied the building and had pleaded guilty at the Roswell term of court, turned the place over to his brother Robert, on February 1st, leaving effects there but no whisky, and then permanently removed to a cattle ranch and had not returned to the place. He said he knew nothing of the whisky and did not leave it in the building. A merchant, conducting a store across the street, testified the brother occupied the place on February 19, and paid him the rent for February and March, and he saw the brother there in February, but did not see defendant there, and the last rent defendant paid was in January. The brother testified he was the occupant since the 1st of February, and on February 19, that he had bought the whisky at Carrizozo, for his own use, and took it to the building about the 10th of February.
The government had no direct proof of defendant's possession of the building on February 19th, or of the whisky at any time. It depended for conviction on circumstances, and, in view of the contrary evidence, they might reasonably be considered as consistent with his innocence. The jury should have been left free to decide the issue, and certainly without argument from the court. Yet we find the charge contained this language:
After objection, the court added that its opinion was not binding and the jury might absolutely disregard it.
Valuable decisions upon the propriety of comment by the court on the facts, and the limitations applicable to it are found in Weare v. United States (C. C. A.) 1 F.(2d) 617, 619; Lewis v. United States (C. C. A.) 8 F.(2d) 849; Cook v. United States (C. C. A.) 14 F.(2d) 833; Barham v. United States (C. C. A.) 14 F.(2d) 835; Buchanan v. United States (C. C. A.) 15 F.(2d) 496; Cook v. United States (C. C. A.) 18 F.(2d) 50; Morris v. United States (C. C. A.) 19 F.(2d) 131; Sacramento Sub. Fruit Lands Co. v. Parker (C. C. A.) 36 F.(2d) 926. It was well said in Weare v. United States, supra, that:
We are of the opinion that the charge in this case falls within the foregoing criticism, and was not cured by the later advice to the jury. It could be regarded by the jury only as an appeal for conviction, by persuasive reasoning in a case where it was dependent on circumstances, and where the jury was not instructed concerning the rule applicable to circumstantial evidence.
For this error, the judgment is reversed, and the cause is remanded to the trial court, with direction to grant the defendant a new trial.
Reversed.
We agree that the case must be reversed. In addition to the part of the charge quoted in the opinion, the trial court told the jury that: "It seems to me, gentlemen, that ...
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