Mays v. United States, 16004.

• Decision Date: 16 December 1958
• Docket Number: No. 16004.,16004.
• Citation: 261 F.2d 662
• Parties: Dave MAYS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

261 F.2d 662 (1958)

Dave MAYS, Appellant, v. UNITED STATES of America, Appellee.

No. 16004.

United States Court of Appeals Eighth Circuit.

December 16, 1958.

James J. Rankin, St. Louis, Mo., for appellant.

Harry Richards, U. S. Atty., and John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendant Dave Mays appeals from judgment and sentence based upon verdicts of a jury finding him guilty on both counts of an indictment charging violation of the narcotic laws. The first count charged Mays, Vernita D. Overton, and Andrew J. Berry with unlawful sale of heroin in violation of 26 U.S.C.A. § 4705 (a). The second count charged the same defendants with violation of 21 U.S.C.A. § 174, proscribing receipt and concealment of narcotics. The same heroin is involved in both counts of the indictment. Defendants Mays and Berry were found guilty on both counts of the indictment. Vernita D. Overton was acquitted. This appeal is by the defendant Mays alone.

Defendant Mays, as grounds for reversal, states: (1) the evidence was insufficient to sustain a conviction, and (2) the court committed prejudicial error in unduly limiting defendant's cross examination of Government's witness McNealy.

Defendant Mays at the close of the Government's evidence and again at the close of all the evidence moved for judgment of acquittal. The motions were properly overruled by the court.

It is the Government's position that there is at least substantial evidence to support a finding of Mays' guilt as an aider and abettor in the commission of the crimes charged in the indictment. The issue of Mays' guilt was alternately submitted to the jury under instructions authorizing Mays' conviction as a principal if he aided and abetted the commission of the offenses charged. Such instructions were not objected to. The court instructed in part:

"The statute 18 U.S.C.A. § 2, in effect, provides that there is no distinction between the guilt of a principal and the guilt of an accessory and that one may be charged and prosecuted as a principal and if it turns out that he is only an accessory, he may, nevertheless, be convicted."

The foregoing instruction correctly states the law. Pereira v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 98 L.Ed. 435; Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919; Alexander v. United States, 8 Cir., 241 F.2d 351, 355.

The test to be applied in determining whether defendant is an aider and abettor is thus stated by the Supreme Court in Nye & Nissen, supra (336 U.S. at page 619, 69 S.Ct. at page 769):

"* * * In order to aid and abet another to commit a crime it is necessary that a defendant `in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.\' L. Hand, J., in United States v. Peoni, 2 Cir., 100 F.2d 401, 402."

And, at page 620 of 336 U.S., at page 770 of 69 S.Ct., the Supreme Court states:

"* * * Aiding and abetting has a broader application. It makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy. * * *"

The court in our present case properly instructed the jury in accordance with the rule stated in Nye & Nissen, supra. There is ample evidence to support an inference that Mays associated himself with the sale of heroin and that he sought to bring about the sale. There is the usual conflict between the Government's evidence and the defendant's evidence. In passing upon the defendant's motions for acquittal, we must view the evidence in the light most favorable to the Government. So viewed, the jury could find that McNealy, the Government's undercover agent, secured an introduction to the defendant Mays under favorable circumstances; that thereafter, on March 9, 1957, at McElwee's Bar he entered into a discussion with Mays about the purchase of heroin; and that Mays told him he could sell him 100 capsules for $1.75 each. McNealy showed an interest in such offer and arranged to meet Mays at the bar that evening. McNealy reported at the bar at the scheduled time and after waiting a while was approached by Vernita Overton, who told him that Mays had sent a message that the deal was off for the night but to meet Mays the next night at the Riviera Club. This testimony is corroborated in substance by Miss Overton. On the next night, March 10, McNealy met Mays at the Riviera Club, and was told by Mays that he would receive a telephone call from Mays later that evening. After returning home McNealy received a telephone call from Mays at about 1:15 A.M. on March 11, and was told to go to the Turf Grill to pick up his "stuff". McNealy went to the Turf Grill and from there to Berry's room at the Grand Central Hotel. McNealy told Berry that he had seen Mays at the Riviera Club. Berry then told McNealy that he had 110 capsules of...