Nigro v. United States

• Decision Date: 28 July 1925
• Docket Number: No. 6696.,6696.
• Citation: 7 F.2d 553
• Parties: NIGRO v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

7 F.2d 553 (1925)

NIGRO v. UNITED STATES.

No. 6696.

Circuit Court of Appeals, Eighth Circuit.

July 28, 1925.

William Alford, Fred W. Coon, and Walter A. Raymond, all of Kansas City, Mo., for plaintiff in error.

Charles C. Madison, U. S. Atty., and S. M. Carmean and C. S. Walden, Sp. Asst. U. S. Attys., all of Kansas City, Mo., for the United States.

Before STONE and LEWIS, Circuit Judges, and SCOTT, District Judge.

SCOTT, District Judge.

Plaintiff in error, Frank Nigro, hereinafter referred to as defendant, was indicted for violation of the Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-6287q) in three counts. The charge as stated in each of the three counts had reference to the same general transaction, and was alleged to have occurred on or about the 23d day of December, 1923, at Kansas City, Mo. The first count charged in substance that the defendant, at the time and place stated, being a dealer in opium and its derivatives and coca leaves and their derivatives, and a person required by the laws of the United States to register as such dealer did unlawfully and feloniously possess for sale and distribution one pound of gum opium and four ounces of morphine without having registered as a dealer and paid the special tax. The second count charges in substance that the defendant at the time and place stated, being a person who had not registered as provided by the act referred to, and who had not paid the special tax, did unlawfully and feloniously sell to one McCarthy one pound of gum opium and four ounces of morphine, not in pursuance of a written order as required by said act. The third count charges in substance that the defendant, at the time and place stated, did unlawfully and feloniously purchase one pound of gum opium and four ounces of morphine, the same not being within or from the original stamped package, in violation of said act.

The defendant was tried and convicted upon all three counts, and sentenced upon the first count to serve five years in the federal prison at Leavenworth, Kan., and on the second count a like sentence to begin at the expiration of the term of the first, and upon the third count a like sentence to run concurrently with the sentence under the second count. Defendant brings the case here upon writ of error.

It is apparent from an examination of the record that the verdict of the jury rests in substantial entirety upon the testimony of three witnesses, Franklin McCarthy, Fred Robertson, and W. O. McDonald. McCarthy was about 23 years of age. He had no permanent place of abode, nor had he any real occupation. He testified that he was a flier by occupation. His testimony showed that he had been in the late war, and that since that time to some extent he had engaged in aeroplane flights. For a month or two he had been a cook on a railroad. He had been in Chicago, Canada, and Mexico, but had remained in no one place for any considerable length of time, nor had he engaged in any particular occupation for any considerable length of time. Among his divers brief occupations he testifies that he had been in the employ of some narcotic society for the suppression of narcotics. His mother resided in Kansas, and about the 12th or 14th of December, 1923, he came to Kansas City, Mo., to sojourn. He testified that his mother was furnishing his expense money; that about December 19th he made some arrangements for employment with the government narcotic agents at Kansas City; that while in a soft drink parlor, at about that time, for the purpose of getting moonshine whisky to drink, he met one Keating; that on the 19th of December, while he was with Keating, they met, and Keating talked to a man named Davis; that he (McCarthy) had arranged with Keating as an agent to assist him in buying five pounds of opium; that he and Keating went to the Hotel Cotter in Kansas City, and from there to the New Midland Hotel on East Ninth street, Kansas City; that while standing in front of the New Midland Hotel, on December 19th, the defendant, Nigro, approached and asked Keating if he had been looking for him and what he wanted; that Keating replied, "Yes, we were looking for you, but we are dealing now with this party," referring to one Davis; that defendant said, "Well, that is just as well as dealing with me," and stepped back in front of the hotel.

McCarthy testifies that no further conversation was had between Keating and defendant, or in his presence, at that time. That he returned to the Sexton Hotel, where he was staying; that his room was No. 311 at that hotel; that the next time he heard from the defendant was the following morning, when the telephone in his room rang; he was asleep, and, "being somewhat drowsy, I am not certain what the conversation was that followed, for the reason that I interrupted the man, whom I assume was Nigro." The defendant here objected, and the court announced that the conversation would be stricken if it was not connected. The witness then was asked whether he saw defendant the next day after the telephone conversation, and in reply testified that on the following morning he saw the defendant near a shoe-shining parlor a half a block from the New Midland Hotel; that, not knowing Nigro for a certainty, he stopped and asked if he had seen Frank Nigro; that the defendant in substance replied that he was Frank Nigro, whereupon witness said, "You remember me," and the defendant said, "I do," and witness said, "Do you remember me being here with Keating," and that defendant replied, "Yes." Witness then said, "I want to leave town at 5:30 this evening; did you call me up yesterday morning?" and that defendant replied, "Yes." Then the court permitted the witness to testify about the telephone conversation as follows: "The only thing I can remember was some one asked if that was 311, and I said it was, and he said, `Well, say, I can't deliver that stuff,' and right there I interrupted him to say, `Well, I can't take it to-day; I can't be bothered with it, because I can't leave town.' He said, `All right,' and I hung up the receiver."

McCarthy testified that he saw the government officers every day, and that they were in his room, 311 Sexton Hotel, when he started hunting for Nigro. The witness then stated what occurred at the shoe-shining parlor as follows: "When I found him, as I say, I asked him if it were he, and he said it was, and I told him that the man Keating, who had been acting in a sort of a way, on my instance, as an agent, had gone to a show, and I could not page him in the show, and I could not locate him, and I desired to leave town about 5:30 or 6 o'clock, and asked him if I could make this purchase direct from him. He said I could; that the stuff had been put away for me, had been wrapped up in a package. They were a pound of opium and four ounces of morphine. He said he had put it away, and he would have a little difficulty in locating it, but he would try to get it to me by 5:30. That is all the conversation there was." The witness further testified: "That evening, at about 5:15, Roberts, McDonald, and myself were in the room, and the phone rang. I answered it. The party said, `Is this 311?' I said, `Yes.' He said, `This is Frank.' Immediately Officer McDonald, who was standing right at my elbow, reached for the receiver, and I pulled it around so that he might hear. This party said, `This is Frank,' to which I replied, `Yes, Frankie,' and he said, `Can't deliver that stuff now, have to deliver it later.' I said, `What time shall I expect it?' and he said — I said, `I would like to get a 10 o'clock train to Chicago.' He said: `I will try to deliver it by 9:30. It will give you a half hour to get away from the hotel to the Union Station' That is what I told him I wanted, and that is what he agreed to. That ended that conversation. * * * He said, as I remember, he had the four packages, but could not deliver, was trying to get ahold — and there I interrupted him, and I said, `The aeroplane motor.'"

McCarthy then testified that after the conversation Keating rang up and said he was in the lobby; the narcotic agents remained in witness' room; that about 7 o'clock Keating and the witness Robertson came to the room, bringing one pound of gum opium and four ounces of morphine; that McDonald, narcotic agent, immediately went down on the street and soon returned with the defendant, Nigro, under arrest.

The witness Robertson was an addict, and had been convicted of a violation of the anti-narcotic law; had been in jail in Kansas as a vagrant, and had pleaded guilty to the charge of larceny from the person in Oklahoma. He testified that on the evening of December 23d he was on the street with one Hall, and that they were going east on Ninth street about 8:30 in the evening; that he saw Nigro coming down the street in a Cadillac car; that Nigro stopped and called him and Hall over to the car; that there was a fellow in the car with Nigro by the name of Mulhoon; that Nigro asked him (Robertson) and Hall if they would go with Mulhoon and bring some stuff over to him at the Majestic Hotel, and that he would give them $10 apiece to deliver this stuff to him in front of the Majestic hotel; that they agreed to do so, Mulhoon got out of the car and went with him (Robertson) and Hall to the Stratford Hotel, and that Mulhoon there handed him (Robertson) the four ounces of morphine and one pound of opium; that Robertson put them in his pockets, and he and Hall started out to deliver it to Nigro in front of the Majestic Hotel; that they went there in a car which they hired; that Nigro was in front of the hotel with Keating.

Robertson was then asked if he had a conversation there with Nigro. He answered: "My part of the bargain was to take it to the Majestic Hotel, and he was to receive it in front of the hotel, and the fellow who I afterwards learned was Keating was standing there, and I got out of the car, and I was going to give it to Nigro, and Nigro said, ...