Parmagini v. United States, 6064.

• Decision Date: 28 July 1930
• Docket Number: No. 6064.,6064.
• Citation: 42 F.2d 721
• Parties: PARMAGINI et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

42 F.2d 721 (1930)

PARMAGINI et al. v. UNITED STATES.^*

No. 6064.

Circuit Court of Appeals, Ninth Circuit.

July 28, 1930.

Otto Christensen, of Los Angeles, Cal., for appellant Parmagini.

Robert B. McMillan, of San Francisco, Cal., for appellant Levin.

Geo. J. Hatfield, U. S. Atty., and George N. Crocker, Asst. U. S. Atty., both of San Francisco, Cal.

Before RUDKIN and WILBUR, Circuit Judges, and KERRIGAN, District Judge.

WILBUR, Circuit Judge.

The indictment in this case was entitled, "In the Southern Division of the United States District Court for the Northern District of California." The first count charged that the defendants, hereinafter called "said accused," on September 28, 1929, in the city and county of San Francisco, within said southern division, unlawfully did sell and distribute, not in nor from the original stamped package, a lot of morphine, in quantity particularly described as approximately five ounces. The second count charged that then and there, within said Southern division, the said accused fraudulently and knowingly did conceal, and facilitate the concealment of, the said lot of morphine, and that the said morphine had been imported into the United States of America contrary to law, as said accused then and there well knew. The third count charged that then and there, within said Southern division, the said accused unlawfully did dispense and distribute, not in nor from the original stamped package, a lot of opium, in quantity particularly described as approximately one ounce of crude gum opium. The fourth count charged that then and there, within said Southern division, the said accused fraudulently and knowingly did conceal, and facilitate the concealment of, the said lot of opium, and that the said opium had been imported into the United States of America contrary to law, as said accused then and there well knew. The fifth count charged that, at a time and place to the grand jurors unknown, the said accused unlawfully did conspire to sell and dispense and distribute morphine and opium, not in nor from the original stamped package, and to conceal and facilitate the concealment and transportation of morphine and opium which had been imported into the United States of America contrary to law, as said accused then and there well knew, and that thereafter, and during said conspiracy, one or more of said accused did, in the city and county of San Francisco, state of California, and within the Southern division of the Northern district of California, commit certain overt acts, set forth in detail, to effect the object of the conspiracy. The jury returned a verdict of guilty as to all counts, and from the judgment on the verdict this appeal was prosecuted.

It is first contended that the second, third, and fourth counts of the indictment are bad for want of an allegation of time or place; for want of a sufficient description of the morphine and opium; and for want of a sufficient allegation of venue. The first count charged the venue in explicit terms, and the remaining counts fix the venue by use of the words then and there within said Southern division; the first count described the morphine, and the second count described it as said lot of morphine; the third count described the opium, and the fourth count described it as said lot of opium. These allegations as to time, place, venue, and description are sufficient under well-settled rules of criminal pleading. Blitz v. United States, 153 U. S. 308, 14 S. Ct. 924, 38 L. Ed. 725; Connor v. United States (C. C. A.) 293 F. 391; Adamson v. United States (C. C. A.) 296 F. 110.

It is further contended that the fifth count is bad for want of an allegation of venue, because the count charged that the parties conspired at a time and place to the grand jurors unknown; but the count specifically charged that the overt acts to effect the object of the conspiracy were committed within the jurisdiction of the court, and such an allegation of venue is sufficient under the law. Woitte v. United States (C. C. A.) 19 F.(2d) 506, and cases there cited.

One of the narcotic agents testified that upon the arrest of the appellant Levin they found automobile keys on his person, and that Levin informed them where the automobile could be found, giving a description of it. The witness was then permitted to testify, over objection and exception, that he found in the automobile a pistol loaded with dumdum bullets. It is not claimed that either the automobile or the pistol was used in the commission of the crime charged in the indictment, or that they were present or nearby when the crime was committed. It seems quite manifest, therefore, that the mere presence of the pistol in the automobile had not the slightest tendency to prove that the owner of the car had dealt in or concealed narcotics at some time prior thereto, any more than it would tend to prove the commission of any other crime, such as crossing the street in the middle of a block in defiance of a municipal ordinance. The court doubtless appreciated this, for later in the course of the trial it withdrew the testimony from the consideration of the jury and instructed them to disregard it.

On the cross-examination of the appellant Parmagini, the attorney for the government propounded the following question: "Why did you send word to me that if I would continue your trial for six months that you (would) make revelations in relation to the narcotic ring operating on the Pacific Coast?" An objection to this question was overruled, and the question was not answered. On the contrary, after the objection to the question was overruled, the witness asked the district attorney: "By who?" Thereafter the questions asked and answered were received in evidence without any objection or exception on the part of the defendant. In a recent opinion of this court by Judge Dietrich Olmstead v. U. S., 29 F.(2d) 239 it was held that, where a question to which objection was made was not answered, the exception to the ruling could not be taken advantage of with reference to subsequent questions and answers. In the case at bar the objectionable assumption by the district attorney was withdrawn in refraining the question, and no objection was interposed to the question thus asked. On direct examination the appellant had testified as follows: "I never unlawfully dispensed or distributed upon those dates any morphine not in the original sealed packages. I was never a part of a conspiracy with William Levin or any other person to facilitate the transportation or sale of morphine and never entered into a conspiracy to conceal morphine or any other drug with those persons or with any persons, or to violate the Harrison Narcotic Law or the Jones-Miller Law, upon the dates I have mentioned or upon any other dates or at any other dates or at any time or at any place."

And on cross-examination he further testified: "I have never had anything to do with narcotic drugs at any time or at any place." It was this last sweeping declaration of the witness on cross-examination that immediately provoked the question now under consideration. If the defendant did in fact make an offer to the district attorney to reveal the secrets of a narcotic ring operating illegally on the Pacific Coast, his conduct and offer was inconsistent with this testimony on direct examination, and also that on cross-examination, and therefore a proper subject of cross-examination. Therefore, the objection to the question on the ground that it was "immaterial, irrelevent and incompetent and not proper cross examination and no foundation laid" is not well taken. The question was proper cross-examination. The ruling of the court was correct.

The vice in the question is the assumption on the part of the district attorney involved by the form of the question, "Why did you," etc. If the district attorney propounded the question in the form in which it was asked with a view of insinuating as a fact to the jury that which he knew was not true, it would undoubtedly be most serious misconduct on his part. There is nothing in the record, however, to disclose that the question propounded by the district attorney was not propounded in good faith, other than the denial of the defendant that he had not authorized any one to make overtures to the district attorney. The presumption of official duty properly performed would involve the presumption that the question was asked in good faith. The prompt reframing of the question to remove the objectionable implication, notwithstanding a favorable ruling of the court, would seem to indicate a purpose to remove that implication, although its objectionable character had neither been pointed out by court or counsel. The defendant did not assign the asking of the question by the district attorney as misconduct, and did not then or thereafter ask the court to instruct the jury to disregard it, and under these circumstances he is not entitled to present the matter on appeal under well-recognized principles which are uniformly adhered to except in those extraordinary cases where the appellate court can see that the misconduct of the district attorney in asking the question is so flagrant that it could not be cured in any manner. New York Central R. R. Co. v. Johnson, 279 U. S. 310, 318, 49 S. Ct. 300, 73 L. Ed. 706, citing Brasfield v. U. S., 272 U. S. 448, 450, 47 S. Ct. 135, 71 L. Ed. 345.

The appellant did not assign the conduct of the district attorney in asking the question as misconduct either in his assignment of errors or in the specification of errors in his brief. The objection, the assignment of errors for the appeal, and the specification of errors in the brief are all predicated upon the theory that the question objected to was immaterial and not proper cross-examination. He did not raise the question of the good faith of the district attorney in propounding the questions. The witness testified without objection as follows:

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