Nicholson v. United States, 15184.

• Decision Date: 01 June 1955
• Docket Number: No. 15184.,15184.
• Citation: 221 F.2d 281
• Parties: Marion Alfred NICHOLSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

221 F.2d 281 (1955)

Marion Alfred NICHOLSON, Appellant, v. UNITED STATES of America, Appellee.

No. 15184.

United States Court of Appeals Eighth Circuit.

April 22, 1955.

Rehearing Denied June 1, 1955.

William P. Murphy and Silver, Goff, Murphy, Ryan & Gottlieb, St. Paul, Minn., filed brief for appellant.

George E. MacKinnon, U. S. Atty., and Clifford Janes, Asst. U. S. Atty., St. Paul, Minn., filed brief for appellee.

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

COLLET, Circuit Judge.

The defendant was tried on three counts of an indictment. Counts No. Seven and Eight charged unlawful possession and transfer of marihuana. Count Nine charged conspiracy to unlawfully transfer marihuana. The jury found him not guilty on Counts Seven and Eight. He was convicted and sentenced on Count Nine. From the judgment of conviction he appeals.

Three assignments of error are presented. First, that defendant's motion for a directed verdict should have been sustained because the evidence was insufficient to support a verdict of guilty. Second, that the Court's instructions were erroneous in several particulars, and third, that Government counsel made an unproper argument to the jury over the futile objection of defendant.

The evidentiary facts upon which the trial court denied defendant's motion for a directed verdict on the conspiracy count were as follows: A man named Eaves worked as a barber in a barber shop in St. Paul, Minnesota. Defendant was an occasional customer. A government narcotic agent was investigating illicit traffic in narcotics in the community in which the barber shop was located. Eaves was in need of money. The agent, posing as an exconvict, a dealer in narcotics and stolen automobiles, made a proposal to Eaves that if he, Eaves, would assist him in obtaining narcotics, the agent would make it financially very worth while to Eaves. Eaves advertised the fact to many of his customers, including defendant, that he would like to have some marihuana for his "friend". Eaves obtained marihuana on two occasions from undisclosed sources and turned it over to the agent. The defendant first told Eaves that he knew of no source from which marihuana could be obtained but that if he learned of any he would let Eaves know. Eaves testified that on September 25, 1953 about 4:00 P. M. he had a conversation with defendant just outside the barber shop in which defendant told him that he, defendant, would be able to get him 20 packages of marihuana and that he, the defendant, or the man who had it would bring the marihuana to the barber shop about six o'clock that evening. The defendant left and returned about six o'clock, at which time he informed Eaves that only six packages were available and they would be delivered about 7:00 P. M. At about 7:00 P. M. a man named Johnson came to the barber shop and delivered to Eaves a package containing six smaller packages of marihuana each containing eight marihuana cigarettes and demanded $30.00 therefor. Eaves told Johnson he would deliver the marihuana, get the money for it and then pay him. Eaves left the shop and delivered the package to the agent. Johnson waited. Eaves was arrested and did not return. Johnson testified that defendant was a friend of his, had picked him up in defendant's automobile, driven to Eaves' shop and asked Johnson to hand the package to Eaves and get $30.00 for it. Johnson said he delivered the package as Eaves stated it was delivered. Later that evening defendant and Johnson were arrested in defendant's automobile. Johnson was subsequently released. Eaves entered a plea of guilty. Defendant denied having...