Myers v. United States, 3107.
| Decision Date | 13 April 1931 |
| Docket Number | No. 3107.,3107. |
| Parties | MYERS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
J. Raymond Gordon, of Charleston, W. Va., for appellant.
James Damron, U. S. Atty., of Huntington, W. Va. (Philip Angel, Asst. U. S. Atty., of Huntington, W. Va. on the brief), for the United States.
Before PARKER, Circuit Judge, and WATKINS and WEBB, District Judges.
The appellant, Roy Myers, was convicted in the court below of selling intoxicating liquor in violation of the National Prohibition Act (27 USCA); and from a sentence of imprisonment he appeals to this court. The assignments of error raise four points for our consideration, viz.: (1) Whether the evidence relied upon by the government established a sale; (2) whether there was error in admitting evidence as to the finding of a quantity of liquor on defendant's premises in a search made the day after the sale relied on; (3) whether there was error in admitting evidence of the submission of the defendant in the state court under a charge of possessing the liquor found on this search; and (4) whether there was error in the court's action on objections made to the District Attorney's argument to the jury.
The facts are that government agents saw one Amos, a taxicab driver working for defendant, bring a package containing a gallon of whisky from the residence of defendant and place it in an automobile. They placed him under arrest, and he was prosecuted and convicted on a charge of transportation. Amos later divulged his connection with defendant; and, upon the trial of the latter, testified to an arrangement under which he (Amos) was to drive a taxicab for defendant and handle liquor for him. He was to obtain this liquor from defendant, was to pay for it at a certain price, and was to retain all above that price that he might receive. He testified that he had been getting liquor and selling it for some time under this arrangement, that on the day in question he had obtained a pint from defendant's residence which he had sold and delivered, and that, having arranged for the sale of a gallon in the evening, he had obtained it from defendant's residence, a building used partly for business purposes, and was taking it to make delivery to his customer when he was arrested.
Shortly after arresting Amos, the officers who had arrested him obtained a federal search warrant and searched the premises of defendant, but failed to find any liquor there. The next day, state officers, having obtained a state warrant, searched and found forty-three gallons in one-gallon cans hidden in a secret compartment of defendant's kitchen. A federal agent was with them when they made this search, but defendant was not prosecuted in the federal courts for possession of the liquor so found. Evidence of its being found on his premises was admitted in the trial below, however, in corroboration of the testimony of Amos; and the court also admitted the record of defendant's submission in the state court to the charge of possessing it. The objection to the remarks of the district attorney was that in his address to the jury he referred to the defendant as a bootlegger.
There can be no question that the evidence relied upon by the government supported the charge of sale. If the evidence of Amos is believed, he and the defendant had been engaging in business together for a period of a year or more; and, even if Amos be considered as acting as defendant's agent, defendant would be criminally responsible for the sales made by Amos in that capacity, including the sale of the pint which was consummated by delivery to the purchaser on the day of his arrest. We think, also, that the evidence supports the position that in the case of the liquor handled by Amos there was a sale to him by the defendant. It is true that Amos was not required to make payment at the time that he obtained the liquor; but payment in cash is not necessary to complete a sale. If liquor was delivered to him by ...
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