Quercia v. United States, 2688.

• Decision Date: 03 January 1933
• Docket Number: No. 2688.,2688.
• Citation: 62 F.2d 746
• Parties: QUERCIA v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

62 F.2d 746 (1933)

QUERCIA v. UNITED STATES.

No. 2688.

Circuit Court of Appeals, First Circuit.

January 3, 1933.

Essex S. Abbott, of Boston, Mass. (Joseph V. Carroll, of Boston, Mass., on the brief), for appellant.

Elihu D. Stone, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

The appellant and one John Brogna were indicted under two counts and charged with selling, dispensing, and distributing a narcotic drug on two separate days. Brogna pleaded guilty. The appellant was found guilty by a jury. The main issue was whether the evidence warranted a finding by the jury that the appellant participated as a principal in the sale of the drug; the officer who purchased the drug testifying that he paid Brogna for it and it was delivered to him by Brogna.

The officer, however, further testified that he had a conversation with the appellant and Brogna together as to the price to be paid, and the appellant was referred to by Brogna as the "main connection"; that the price was fixed by the appellant, and the officer was told that Brogna would deliver it and the money could be paid to Brogna; that the appellant did not want to have anything to do with the business.

After his arrest a $5 bill paid to Brogna was found in his possession, identified by its serial number.

At the close of the evidence counsel for the appellant requested the court to instruct the jury that:

"4. Upon all the evidence the Government has not proved that the defendant sold, dispensed or distributed the morphine alleged in said indictment.

"5. To find the defendant guilty on this indictment the Government must prove that the defendant

"(a) Sold the narcotics;

"(b) Dispensed the narcotics;

"(c) Distributed the narcotics;

— and having failed so to prove the defendant must be found not guilty.

"6. The evidence of the witness Hesse that all Quercia did was to discuss the price of the drug does not warrant the jury in finding that he sold, dispensed or distributed the drug."

The court refused to give these instructions, but instructed the jury as a matter of law that, if they believed the evidence for the government, they might find the appellant guilty.

As to the principal issue raised at the trial and by the requested instructions, viz. that there was not sufficient evidence to show that the appellant participated as a principal in the sale and distribution of the drug, we think the instruction of the presiding judge was a correct statement of the law. The instruction excepted to was evidently given instead of the instructions requested by the appellant.

It is true that whether the evidence of the government, even if believed, removes all reasonable doubts from the minds of the jury is a question of fact and not of law; and the instruction, if a direction to find the appellant guilty if the jury believed the testimony of the government, would have been prejudicial error, Grillo v. United States (C. C. A.) 26 F.(2d) 461; but we think the jury could not have misapplied this instruction, in view of other portions of the charge, and the defense of the appellant as disclosed by the evidence.

The other part of the charge excepted to might well have been omitted. The presiding justice then went on to say: "And now I am going to tell you what I think of the defendant's testimony. You may have noticed, Mr. Foreman and gentlemen, that he wiped his hands during his testimony. It is rather a curious thing, but that is almost always an indication of lying. Why it should be so we don't know, but that is the fact. I think that every...