Lusco v. United States, 117.

• Decision Date: 02 January 1923
• Docket Number: 117.
• Citation: 287 F. 69
• Parties: LUSCO v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

287 F. 69

LUSCO v. UNITED STATES.

No. 117.

United States Court of Appeals, Second Circuit.

January 2, 1923

Alfred M. Bailey, of New York City (Solon Weit, of New York City, of counsel), for plaintiff in error.

William Hayward, U.S. Atty., of New York City (Moses Polakoff, Asst U.S. Atty., of New York City, of counsel), for the United States.

Before ROGERS, HOUGH, and MAYER, Circuit Judges.

MAYER Circuit Judge.

The essential facts which led to the conviction of Lusco may be found in the opinion of Ganci v. United States (C.C.A.) 287 F. 60, filed contemporaneously herewith. In addition there were further details which served to emphasize the testimony of Smith and the officers. The verdict of guilty was amply supported by the evidence, and we need notice only two assignments of error:

(1) When Exhibits 4 to 9, inclusive, were offered and received in evidence against both defendants neither objection nor motion of any kind was made on behalf of Lusco. It is now urged that the admission of these exhibits as against Lusco was error.

On this record and in view of the testimony, it is too late to raise this question now; but, even if raised, it would be of no service to defendant. The protection of the Fourth Amendment safeguarded Ganci, but the illegal search and seizure as against Ganci cannot be availed of by Lusco. Haywood v United States (C.C.A.) 268 F. 795, 803, 804.

(2) Defendant called his wife as a witness. Smith had testified as to paying Lusco $64 of marked money for the narcotics, and manning and Pacetta had testified that, after they had arrested Lusco, they visited his premises. In view of defendant's objection, the officers were not permitted to testify as to what they did or what, if anything, they found upon this visit. Mrs. Lusco testified that she had never seen Smith. The prosecuting attorney did not ask any questions on cross-examination, but the court asked questions and received answers, as follows:

'Q. Do you remember the officers coming to your house? A. Yes I remember.

'Q. Did they go in the house? A. Yes.

'Q. Did you give them any permission to go into the house? A. There wasn't nobody in the house; I had gone out.

'Q. Well, did you come back and find any officers there? A. Yes; I found the door broken down.

'Q. What sort of a chiffonier have you in your house, a bureau or dresser--what kind of wood? A. It was a light color; I don't know the kind of wood.

'Q. Light spots in it? A. With a looking glass and bureau underneath.

'Q. It was light-colored wood; did it have light spots in it? A. No.

'Q. Where did you keep your pocketbook? A. In the bureau.

'Q. What drawer of the bureau? A. The upper drawer on the right-hand side.

'Q. How much money was in that pocketbook that day? A. $114, because my husband was to buy a business.

'Q. Your husband had to buy a business-- had there been $114 in it all day? A. Yes.

'Q. Since when? A. It was nearly three days, because my husband was looking to buy a business.

'Q. Was any of that money taken away by the officers?

'Mr. Leckhart: I object to that as immaterial, irrelevant, and incompetent.

'The Court: Overruled.

'A. Yes.

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