Mehan v. United States, 11526.

• Decision Date: 17 June 1940
• Docket Number: No. 11526.,11526.
• Citation: 112 F.2d 561
• Parties: MEHAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

112 F.2d 561 (1940)

MEHAN v. UNITED STATES.

No. 11526.

Circuit Court of Appeals, Eighth Circuit.

June 17, 1940.

Frank Rader, of Kansas City, Mo. (R. A. Gorsuch, of Independence, Mo., on the brief), for appellant.

Richard K. Phelps, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

WOODROUGH, Circuit Judge.

William Mehan was indicted and tried with one Angelo Nigro on the charge of having sold to Laverne Wallace 20 grains of morphine hydrochloride, a derivative of opium, in violation of 26 U.S.C.A.Int.Rev. Code, § 2553. Both were convicted, and William Mehan prosecutes this appeal. He refused offers of the court to appoint counsel for him and elected to try his own case. He took the position that his best defense was to tell the truth, and said "I thought I could do it as well as talking to a lawyer and he telling it second hand". When he took the stand as a witness in his own behalf, the court again suggested the appointment of an attorney to protect and defend his rights, but he preferred to and did accept the offer of the attorney for his codefendant Nigro to propound questions to him, and in answer to the questions he was permitted to and did give his version of the entire case against him, fully and completely and without interruption. No objections to questions or exceptions to rulings were preserved by him, but on this appeal, which he was permitted to prosecute without printed record, counsel have submitted an extended and scholarly brief on his behalf, arguing many points for reversal under nineteen assignments of error. Counsel urge "that this court should notice and correct plain errors in the trial of the accused, although these errors were not challenged or preserved by proper objections, motions, exceptions or assignments of error. Troutman v. United States, 10 Cir., 100 F.2d 628; Kelly v. United States, 10 Cir., 76 F.2d 847; Lewis v. United States, 10 Cir., 92 F.2d 952."

We have accordingly first directed our study to the testimony in the case, being aided by a very painstaking and complete statement of the evidence in the brief of counsel for appellant. It appears that a government narcotic agent had supplied Laverne Wallace, a young woman who was addicted to the drug habit, with twenty-six dollars, made up of one ten dollar bill, bills of smaller denomination and two half dollars, in order to enable her to buy morphine from Angelo Nigro. She had bought the drug from Nigro on many occasions at the saloon kept by him, his method of dealing with her being to take the purchase price at the saloon and have some other person make delivery at some other place. On this occasion she went into the saloon and asked Nigro to sell her twenty-five dollars worth of morphine. He said that morphine was very scarce and he didn't have that much but had twelve dollars and a half worth. She accordingly paid him the money and he told her to go to the LaBelle hotel and he would send the morphine there by the appellant William Mehan who was then in the saloon. A narcotic agent who had been in the government service twelve years was present in the saloon and saw the young woman talking to Nigro. He saw her deliver some bills to Nigro and saw that one of the bills was a ten dollar bill. The young woman then went to the LaBelle hotel and was soon met there by the appellant. They walked down the street a short distance and a narcotic agent, who had been in the narcotic service more than thirteen years, saw the appellant give the woman a package which she took in her hand and held in her hand in view of the narcotic agent until she had crossed the street and delivered it to him. It was found to be a cigarette package containing the prohibited drug described in the indictment. It was duly analyzed by the government chemist and received in evidence.

Our search of the record fails to disclose any testimony that raises the least doubt that Nigro and appellant made the sale of the prohibited drug as above stated and as charged in the indictment. Both denied guilt and each gave a long account of his relations and transactions with Laverne Wallace tending to refute her testimony that they sold her morphine, but we see no purpose to be served in discussing the unsavory details of such relations or transactions. There was substantial and convincing evidence to sustain the jury's verdict of guilty as to each defendant.

The main gist of the points...