Ng Sing v. United States

• Decision Date: 04 January 1926
• Docket Number: No. 4577.,4577.
• Citation: 8 F.2d 919
• Parties: NG SING et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

8 F.2d 919 (1925)

NG SING et al. v. UNITED STATES.

No. 4577.

Circuit Court of Appeals, Ninth Circuit.

November 30, 1925.

Rehearing Denied January 4, 1926.

Paul W. Schenck and Richard Kittrelle, both of Los Angeles, Cal., and Green & Gillis, of San Francisco, Cal., for plaintiffs in error.

Samuel W. McNabb, U. S. Atty., and J. Edwin Simpson, Asst. U. S. Atty., both of Los Angeles, Cal.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

RUDKIN, Circuit Judge (after stating the facts as above).

When the government rested its case, counsel for the plaintiffs in error asked leave to present a motion for a directed verdict of not guilty as to the first count of the indictment, in the absence of the jury, and the denial of this request is assigned as error. Such requests are always addressed to the sound discretion of the trial court, and no abuse of discretion is here shown or claimed, inasmuch as the court denied the motion for a directed verdict without comment of any kind. One of the plaintiffs in error testified in his own behalf that he did not have possession of the opium in question and had no knowledge of its presence on the premises. On cross-examination he was asked if he had not sold a similar tin of opium to one Hong Ding a few days before his arrest. This question was objected to on various grounds, but the objection was overruled. The witness answered the question in the negative, and the ruling on the objection is assigned as error. We are not prepared to say that the sale of a similar tin of opium by the witness a few days before his arrest would not have some tendency to establish the charge of possession, and, if it had such tendency, the ruling on the objection was not erroneous, even though the testimony might tend to show the commission of another crime.

One of the witnesses for the government testified, without objection, that he found about 500 gallons of liquor on the premises and three stills not connected up or in operation. A motion to strike this testimony was later interposed by the plaintiffs in error, but the court denied the motion, saying that it was harmless anyway; that they were not on trial for that. And in the charge to the jury the court said: "Testimony has been given as to the finding of some intoxicating liquor and a still or something of that sort on the premises at the time this raid was made. Of course, you have heard that the defendants pleaded guilty to this possession. Now, obviously, the fact that the defendants had liquor there, if they did, as seems to be certain by the fact that they pleaded guilty to it, is not of itself any reason or excuse of justification for an honest man indulging in the suspicion that because of that fact they also had opium. It is not true that one who possesses liquor unlawfully is in possession of the narcotics. The only reason for offering the testimony was that it tended to show the responsibility of the defendants for the maintenance of the place of business. * * * So, as a matter of fact, it is your duty to disregard the testimony about the liquor."

It will thus be seen that the jury was instructed to disregard all testimony relating to the liquor. More than this court could not have done after the testimony came in without objection.

Exceptions were reserved to certain portions of the charge of the court, but the most that can be said in support of the exceptions is that the court commented on the facts and expressed opinions adverse to the plaintiffs in error. This course is always permissible in a federal court, provided always that questions of fact are ultimately left to the jury, and the rights of the plaintiffs in error in that regard were carefully safeguarded by the court. Exceptions were also reserved to the refusal of the court to give certain instructions requested by the plaintiffs in error. These requests, so far as pertinent, were sufficiently covered by the general charge of the court. The main contention of the plaintiffs in error is that the evidence is not sufficient to support the verdict. This question was not raised in the trial court as to the second count of the indictment until after verdict, and can only be raised in this court now as a matter of grace to prevent a plain or palpable miscarriage of justice. Furthermore, the failure to raise the objection as to the second count at the proper time and in a proper manner was not an oversight on the part of counsel, because the objection was twice urged as to the first count; once at the close of the testimony on the part of the government, and again at the close of all the testimony, by a request for a peremptory instruction.

The facts disclosed by the record are substantially these: At the time in question the plaintiffs in error occupied the premises known as 317 and 319 Apablasa street in Los Angeles as a drug store and general merchandise store. Back of the two storerooms was a narrow area about 4 feet in width, surrounded by a fence from 8 to 14 feet high, according to the estimates of different witnesses. The only means of ingress to this area way was through the back door of the storerooms in question,...