Smith v. United States, 6662.

• Decision Date: 24 May 1937
• Docket Number: No. 6662.,6662.
• Citation: 91 F.2d 556
• Parties: SMITH et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

91 F.2d 556 (1937)

SMITH et al. v. UNITED STATES.

No. 6662.

United States Court of Appeals for the District of Columbia.

Decided May 24, 1937.

William H. Collins, Harry T. Whelan, and W. B. O'Connell, all of Washington, D. C., for appellants.

Leslie C. Garnett, Henry A. Schweinhaut, and Howard Boyd, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

MARTIN Chief Justice.

This is an appeal from a conviction and sentence of appellants by the district court upon an indictment charging them, together with twenty-seven other defendants, with the crime of conspiring to violate the revenue laws of the United States prohibiting the sale of nontax paid distilled spirits.

Eight of the defendants appealed from the conviction to this court. Of that number, three have since dismissed their appeals. The remaining five defendants whose appeals are before the court and who will be referred to herein as the appellants are Albert H. Smith, Earl G. Funk, John Manoi, Belford R. Longnecker, and Arthur Bartolozzi.

The appellants rely upon three assignments of error.

The first assignment is that the jury that tried the case was illegally constituted by reason of the fact that certain employees of the United States government were permitted to serve as jurors over the objections of appellants. This assignment must be denied upon the authority of United States v. Raymond Wood, 299 U. S. 123, 57 S.Ct. 177, 81 L.Ed. 78, decided December 7, 1936. In that case it was held that employees of the United States government, residents of the District of Columbia, were not disqualified for jury service within the District merely because of their employment by the government.

The second assignment relied upon by appellants is that evidence secured by wire tapping was admitted by the trial court against the objections and exceptions of appellants. This assignment must be overruled upon the authority of Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376. See, also, Beard v. U. S., 65 App.D.C. 231, 82 F.(2d) 837. It is also alleged by appellants that such evidence was illegal under the provisions of the act of Congress commonly known as the Communications Act of 1934, section 605, tit. 47 U.S.C. (47 U. S.C.A. § 605). We cannot, however, sustain this contention. Olmstead v. United States, supra.

The third assignment of error is that the trial court erred in admitting in evidence certain written statements concerning facts which had no relation to the issues in the case and which were prejudicial to the rights of the appellants. In our opinion, this assignment must be sustained.

The defendants were charged in the indictment with unlawfully conspiring together to commit certain offenses in violation of section 37 of the United States Criminal Code, R.S. § 5440 (18 U.S.C.A. § 88), prohibiting the sale of nontax paid distilled spirits (R.S. § 3281 superseded by Act Feb. 8, 1875, § 16, 26 U.S.C.A. §§ 1184, 1397 (a)). It was charged that the defendants sold certain distilled spirits on which the internal revenue tax was not paid for the purpose of defrauding the United States government of the taxes due thereon; and that they maintained certain rooms at apartment 21, 1421 P street, N. W., Washington, D. C., as an office and place where telephones were maintained for the purpose of soliciting, receiving, and bartering nontax paid liquor and alcohol. Various overt acts with specifications of time and place were recited under the indictment.

At the trial the United States introduced evidence in support of these charges and in the course of the trial called one John Wise as a witness who testified that he was a detective sergeant in the Metropolitan Police Department; that in April, 1934, he made an investigation of the premises 1423 P street, N. W., in Washington, D. C., and that incident to this investigation he interviewed certain of the defendants, namely, Earl Funk, Charles Edward Hawkins, Leonard Smith, Clarence Ross, and Andrew Jackson, each of whom made statements in his presence which were reduced to writing and signed by the defendants making the same. These written statements were tendered by the government in evidence, whereupon the defendants objected and their objections being overruled they excepted.

The written statements in question are set out in full in the record, but it seems unnecessary to copy all of them in this opinion. They contain no reference in any manner to the sale of distilled spirits at the place referred to in the indictment or elsewhere, nor is any of the statements relevant to any of the issues made in the present case. They relate solely to a murder committed at the apartment 1423 P street on Saturday, April 21, 1934. They state that one Leonard Smith was engaged in a quarrel at the apartment with one Ernest Nelson, and killed him by a pistol shot; that Nelson's body was taken secretly in a truck to a point in the country near Washington and thrown out and left upon the roadside; that afterwards Smith was arrested as the murderer and it was in the preparation made by the detective Wise for the murder trial that the written statements now referred to were procured. One of the statements, that made by Leonard Smith, sometimes called "Bones," the murderer, reads as follows, to wit:

"Q. Bones, did you tell Mr. Joseph Kelly, your attorney, about the shooting up at Apartment 21 — 1423 P. St., N.W.? A. Yes, sir; I did.

"Q. Did Mr. Kelly tell you not to make a statement to no one? A. Yes, sir; even before I told him about the shooting.

"Q. Bones, do you own a car? A. Yes, sir; a Ford V-8 '33 Coupe District License #You-1205.

"Q. Where is this car now? A. My brother George has it at 1403 — 3rd St., N. W.

"Q. Bones, do you own a gun? A. No, sir.

"Q. You did have an automatic pistol at 1423 P Street, N.W., Apartment 21, did you not? A. Yes, sir.

"Q. What caliber gun was it? A. I don't know what it was.

"Q. This automatic that you admit having at this apartment 21 — 1423 P St., N. W.; was this the gun that was used in the shooting of Lefty Nelson? A. Yes, sir.

"Q. Where is that automatic pistol now? A. I left it there when I left.

"Q. Who was there when you left? A. No one at all.

"Q. The dead man, Ernest Nelson, was there was he not? A. Yes, sir.

"Q. Where did you go after you left the apartment — 1423 P St., Apartment 21? A. Up to 14th & You Sts. N.W. to Earl Wine and Liquor Store, where I got $5 from Smithy. I went up there in a cab.

"Q. Where did you go from the liquor store? A. I went home to my apartment at 2232 — 8th St., N.W. Apartment 1.

"Q. What did you do then? A. I got my coat. I already had my sweater on and I got in my car and it wasn't running so good and I went around the reservoir around to North Capitol St. and W. St., N.W. where I looked over the car.

"Q. At the time you went into your apartment to put on your coat, was Blanche there then? A. She was in the back apartment and when I went out she went with me.

"Q. Did you tell Blanche about this shooting? A. Yes, sir.

"Q. Where did you go from North Capitol and W. Sts., N.W.? A. Down on O St., between North Capitol and First Sts., and left the car parked on O St., N. W. all night.

"Q. Where did you and Blanche go then? A. I went up to the corner of 1st and O Sts., N.W. where I sent a boy by the name of Tommy around to 1403 — 3rd St., N.W. to tell my brother George to come around there to 1st and O Sts., N. W.

"Q. Did your brother George come around there? A. Yes, sir.

"Q. Did you tell him about the shooting at 1423 P St., N.W. — Apartment 21? A. Yes, sir.

"Q. What did you next then do? A. My brother — Blanche and I walked down to North Capitol and O Sts., and then we gets in a cab and goes over northeast to 1231 Linden St., where I stays all night.

"Q. What time did you get up Sunday morning — April 22, 1934? A. 7:00 A. M.

"Q. Did anyone come over to 1231 Linden St., N.E. to see you after the shooting before you went to 14th and P Sts., N.W.? A. No one came over to see me but someone came over to get me.

"Q. Who came over to get you? A. Hawk, my brother George and another boy by the name of Sam.

"Q. What time was that? A. Around about 7:00 A. M.

"Q. Where did you then go? A. Up on P St.; my brother and Blanche did not go along, but Sam and Hawk did.

"Q. When you went up to P Street, what did you do? A. I went in back of the Rigg's Market to Fishboy's house with Hawk and Sam; while Fishboy was coming down the steps, Hawk and I left Sam talking to Fishboy and we went over to 1423 P St., N.W., Apartment 21, and then I sent Hawk to get my car to take it over and have it repaired while I stayed in the office.

"Q. While you were in that apartment, who came in? A. Clarence came in about half an hour after I was in there and then a little while later Hawk came back.

"Q. How long did you remain there? A. I went to sleep and I don't know what time it was when I woke up.

"Q. How long have you known Lefty Nelson? A. About a year and a half.

"Q. Have you ever had any trouble with him previous to Saturday night, April 21, 1934? A. Yes, sir. About four or five months ago Lefty and a fellow by...