Morrison v. United States

• Decision Date: 09 May 1925
• Docket Number: No. 6079.,6079.
• Parties: MORRISON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

6 F.2d 809 (1925)

MORRISON v. UNITED STATES.

No. 6079.

Circuit Court of Appeals, Eighth Circuit.

May 9, 1925.

William Pfeiffer, of Oklahoma City, Okl., for plaintiff in error.

W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.

Before SANBORN and KENYON, Circuit Judges, and BOOTH, District Judge.

BOOTH, District Judge.

Kelsie Morrison, hereafter called defendant, brings this writ of error to reverse a judgment convicting him of unlawfully having in his possession intoxicating liquor in and upon Indian country, to wit, Osage county, Okl.

The indictment was based upon the Act of Congress of May 25, 1918, c. 86, § 1 (40 Stat. 563 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4137aa), which provides as follows:

"That on and after September first, nineteen hundred and eighteen, possession by a person of intoxicating liquors in the Indian country where the introduction is or was prohibited by treaty or federal statute shall be an offense and punished in accordance with the provisions of the Acts of July Twenty-Third, Eighteen Hundred and Ninety-Two (Twenty-Seventh Statutes at Large, page two hundred and sixty), and January Thirtieth, Eighteen Hundred and Ninety-Seven (Twenty-Ninth Statutes at Large, page five hundred and six)."

The assignments of error which are relied on raise three main questions:

1. Were the Act of July 23, 1892, c. 234 (27 Stat. 260 Comp. St. §§ 4136a, 4140), the Act of January 30, 1897, c. 109 (29 Stat. 506 Comp. St. § 4137), and the Act of May 25, 1918, c. 86 (40 Stat. 563 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4137aa), repealed by the National Prohibition Act (41 Stat. 305 Comp. St. Ann. Supp. 1923, § 10138 ¼ et seq.)?

This question has been answered in the negative by this court in the case of McClintic v. United States, 283 F. 781, and later by the Supreme Court in the case of Kennedy v. United States, 265 U. S. 344, 44 S. Ct. 501, 68 L. Ed. 1045.

2. Was the verdict supported by substantial evidence?

Parker, a witness called on behalf of the government, testified that he was city marshal of Fairfax, Okl., and deputy sheriff; that on the day in question, August 2, 1921, about 4 o'clock in the afternoon, he and J. W. Hutchinson were driving in an automobile along a road north and east of Fairfax; that he saw defendant and another man sitting in an automobile by the side of the road; that, as he and Hutchinson were driving past, the automobile in which defendant was sitting backed out and hit their car, and thereupon he stopped and got out to see who was in the other car; that he saw defendant reach down in his car and pick up a bottle and break it over the side of the car door; that the bottom part of the bottle fell upon the running board, but still contained a small quantity of liquor; that he poured this out into his hand and tasted it; that it was corn whisky; that, although he was not a drinking man, he knew corn whisky when he tasted it; that at the time of the occurrence defendant and his companion in the car were drunk.

Another witness, Hutchinson, also a deputy sheriff, corroborated the testimony of Parker, and further testified that the liquid in the broken part of the bottle was corn whisky; that he tasted it; that he knew corn whisky by the taste. These two witnesses were the only ones on behalf of the government, and there was no testimony offered on behalf of defendant.

It is contended on behalf of defendant that the foregoing testimony could at most raise merely a suspicion in the minds of the jury that defendant was guilty of the offense charged. We are unable to acquiesce in this contention. To our minds the evidence constituted a very substantial basis for the verdict.

3. Did the court in its charge to the jury fail to respect the provisions of the Act of March 16, 1878, c. 37 (20 Stat. 30 Comp. St. § 1465)? This act provides that a person on trial in a federal court charged with a criminal offense "shall, at his own request, but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him."

This statute restrains both court and counsel from comment upon the failure of accused to testify. Wilson v. United States, 149 U. S. 60, 13 S. Ct. 765, 37 L. Ed. 650; Reagan v. United States, 157 U. S. 301, 15 S. Ct. 610, 39 L. Ed. 709; Stout v. United States, 227 F. 799, 142 C. C. A. 323; Shea v. United States, 251 F. 440, 163 C. C. A. 458; Robilio v. United States, 259 F. 101, 170 C. C. A. 169; Nobile v. United States (C. C. A.) 284 F. 253. The portion of the charge of the court which it is claimed violated this statute is as follows:

"While you are the sole judges of the facts in the case, you would not be at liberty, of course, to arbitrarily disregard or reject testimony in the case, and especially where it is not contradicted, unless in the consideration of that testimony in some way you find it necessary in the performance of your duty to discredit or reject it. Then, of course, you should give it the weight and consideration you think it should receive at your hands."

It is clear...