Ramirez v. United States
| Citation | 23 F.2d 788 |
| Decision Date | 23 January 1928 |
| Docket Number | No. 5255.,5255. |
| Parties | RAMIREZ v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Raine Ewell, of San Francisco, Cal., for plaintiff in error.
Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
This is a writ of error to review a judgment of conviction under the second count of an indictment charging a violation of the narcotic laws. The second count charged, in the usual form, that the plaintiff in error did willfully, unlawfully, knowingly, feloniously, and fraudulently receive, conceal, buy, sell, and facilitate the transportation and concealment after importation of certain described morphine and cocaine, which said morphine and cocaine, as the plaintiff in error then and there well knew, had been imported into the United States contrary to law.
A demurrer to the indictment, an objection to the introduction of testimony under the indictment, and a motion to quash on the ground that no competent evidence was presented to the grand jury were overruled, and upon these rulings error is assigned. Indictments in the same form have been repeatedly sustained by this court, and the question of their sufficiency is no longer an open one. Wong Lung Sing v. United States (C. C. A.) 3 F.(2d) 780; Lee Tung v. United States (C. C. A.) 7 F.(2d) 111; Rosenberg v. United States (C. C. A.) 13 F.(2d) 369; Morlen v. United States (C. C. A.) 13 F.(2d) 625. The sufficiency of an indictment cannot be challenged by an objection to the introduction of testimony under it. Stubbs v. United States (C. C. A.) 1 F.(2d) 837. But in any event the objection was without merit.
"As a motion to quash is always addressed to the discretion of the court, a decision upon it is not error, and cannot be reviewed on a writ of error." United States v. Hamilton, 109 U. S. 63, 3 S. Ct. 9, 27 L. Ed. 857; Colbeck v. United States (C. C. A.) 10 F.(2d) 401, and cases cited.
The plaintiff in error, before the trial, interposed a motion to suppress certain testimony on the ground that it was obtained through an unlawful search and seizure, and the ruling on this motion is assigned as error. It appears from the record that the motion to suppress was heard, not only upon the affidavits filed in support of the motion, but upon testimony taken in open court, and the latter has not been embodied in a bill of exceptions. We must therefore presume, in the absence of any showing to the contrary, that the ruling on the motion to suppress was justified and supported by the testimony.
Error is assigned in the refusal of the court to direct a verdict of not guilty at the close of the testimony. The testimony was ample to prove that the plaintiff in error was possessed of and concealed the narcotics in question, but it is...
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