Smith v. United States, 7305.

Decision Date29 May 1939
Docket NumberNo. 7305.,7305.
Citation70 App. DC 255,105 F.2d 778
PartiesSMITH v. UNITED STATES.
CourtU.S. Court of Appeals — District of Columbia Circuit

Denny Hughes, of Washington, D. C., for appellant.

David A. Pine, U. S. Atty., and William S. Tarver, Asst. U. S. Atty., both of Washington, D. C.

Before GRONER, Chief Justice, and EDGERTON and VINSON, Associate Justices.

PER CURIAM.

Appellant was tried and convicted under the sixth count of an indictment, charging him with the unlawful possession in the District of Columbia of "certain tickets, * * * slips, * * * and writings, used and to be used, * * * for the purpose of playing, carrying on and conducting a certain lottery, commonly known as and called the numbers game." A police officer testified that, having received information from a source believed to be reliable that "numbers" were being written in a public barber shop located at 130 G Street, N. W., he entered through an open front door and observed appellant sitting in a barber's chair with a pencil in one hand and in the other a book which he recognized as a numbers book; that appellant, when he saw the officer, endeavored to conceal the book under his leg, but he was arrested, the book seized, and found to contain undated numbers slips. Another officer testified that he noticed through an open door in the room another man sitting in an adjoining room writing down "numbers" which were being called out to him by a woman; that he arrested this man and seized a quantity of numbers slips which were lying on the table in front of him.

Three points for reversal are argued.

First. Appellant contends that the court erred in permitting the officer to testify he had received information that the place of arrest was being used for writing numbers. When objection was made to this as hearsay, the District Attorney stated that the purpose was to show probable cause for the arrest. The court thereupon told the jury that the evidence might be received for that purpose alone and not in determining the guilt or innocence of the defendant. In Mattson v. United States, 8 Cir., 7 F.2d 427, and in Biandi v. United States, 6 Cir., 259 F. 93, such evidence was held to be hearsay and inadmissible. And we said as much in Bolt v. United States, 55 App. D.C. 120, 2 F.2d 922. The rule seems to be that, while an officer may testify before a jury that, acting upon information, he did certain things, he may not go further and testify as to precisely what he was told about the particular place or the particular person. Here the testimony was that he had received information that numbers were being written in the particular barber shop. Perhaps this was going rather far, but in the circumstances of this case not so far as to constitute prejudicial error. His statement to the jury that he went there on information that it was being frequented by persons engaged in the numbers game could not have been prejudicial to appellant, in view of his other uncontradicted testimony that on arrival there he witnessed appellant in possession of and in the act of writing slips, which is an offense under the District of Columbia laws. Sec. 863(a), D.C. Code 1901, as amended, 52 Stat. 198, § 2, D.C.Code Supp. IV, 1938, T. 6, § 151a. When to this is added the fact that the court cautioned the jury not to consider the statement as affecting the guilt or innocence of the accused, it would be going very far to set aside the judgment on this account alone.

Second. Error is assigned to the action of the court in permitting the introduction in evidence of numbers slips seized in the adjoining room of the barber shop after this evidence had previously been excluded by the court.

The record shows that at the time of the arrests the police were accompanied by a deputy United States marshal who was in possession of a search warrant for the place, but that the arrests were made and the numbers slips seized before service of the warrant. When the seized articles were first offered in evidence, the court refused to receive them. After the close of the government's case, and when the argument to the jury had begun, the judge changed his mind and allowed them to be introduced in evidence. The argument here is that, because in this case a search warrant had been previously obtained, the seizure without service of the search warrant was invalid. And, in addition to this, it is argued that, since the search warrant was not produced at the trial, the fruits of the search should have been excluded. But we think these points cannot be sustained.

The barber shop being a public place, the officers had a lawful right to enter either with or without a search warrant, see Ludwig v. United States, 7 Cir., 3 F.2d 231, and, since they observed appellant in the act of violating the law, his arrest with or without a warrant was lawful. By the same token they had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the unlawful enterprise. Marron v. United States, 275 U.S. 192, 199, 48 S.Ct. 74, 72 L.Ed. 231. In these circumstances, the failure of the prosecution to produce the search warrant at the trial was of no consequence. As much as this we said in Beard v. United States, 65 App.D.C. 231,...

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