Smith v. United States

• Decision Date: 12 August 1955
• Docket Number: No. 15421.,15421.
• Parties: Sidney SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 58 (1955)

Sidney SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 15421.

United States Court of Appeals Fifth Circuit.

June 30, 1955.

Rehearing Denied August 12, 1955.

Bernard A. Golding, Houston, Tex., for appellant.

Carlos G. Watson, Jr., Asst. U. S. Atty., Malcolm R. Wilkey, U. S. Atty., Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, JONES, Circuit Judge, and WRIGHT, District Judge.

WRIGHT, District Judge.

This appeal concerns the sordid story of a city policeman who wanted to run with the hare and play with the hounds. The hounds caught him. He was convicted of conspiring¹ with two incorrigible criminals to violate the Internal Revenue laws relating to narcotic drugs. In this appeal he contends that it was error to permit his co-conspirators to testify against him, that it was error to admit evidence of unrelated offenses for which he was not on trial, and that the evidence as a whole fails to support the charge against him.

The indictment charged that the appellant, with one Carl E. Lawder and one Charles Aarons, named but not indicted, entered into a conspiracy to violate various criminal statutes² by obtaining prescriptions for narcotic drugs from physicians under false pretenses and distributing the narcotics so obtained to the conspirators for their personal use. Lawder and Aarons, being drug addicts, used the narcotics to satisfy their addiction, while the appellant, Smith, not a drug addict, used his to purchase favors from two women of ill fame, who were addicted to the use of narcotic drugs, as well as to pay his yard boy, also a drug addict.

The evidence against Smith consisted of testimony of his co-conspirators, the two women of ill repute, the yard boy, and the owner of the house in which the appellant is alleged to have conducted his affair with one of the women. All of these witnesses are criminals of the most unsavory sort. In addition to these witnesses, the Government used the various doctors who supplied the prescriptions and the druggists who filled the prescriptions, together with certain incidental witnesses, to corroborate the testimony of the co-conspirators, Lawder and Aarons.

The record shows that on June 14, 1953 the appellant, Sidney Smith, then a policeman in the burglary and theft division of the Houston Police Department, stopped Lawder and Aarons, both known drug addicts and ex-convicts, as they were driving down a street in Houston, searched the car and found fifty dilaudid tablets which had been illegally obtained by Lawder by means of a prescription. Smith seized the tablets but did not arrest Lawder and Aarons. That afternoon Lawder and Aarons called on Smith and asked him to return ten of the fifty tablets, which Smith did. At that time Smith made it clear to Lawder and Aarons that unless they cooperated with him in obtaining dilaudid tablets, he would prefer charges against them based on the forty tablets which he retained. Smith then asked Lawder to obtain for him 200 dilaudid tablets. Lawder did so by obtaining a prescription therefor under false pretenses, representing that he was a victim of cancer. From this date, June 14, 1953, until the end of the conspiracy, August 17, 1953, Lawder purchased hundreds of tablets of dilaudid on prescriptions illegally obtained by him under false pretenses. On the various occasions when the tablets were obtained, Smith would drive Lawder to a doctor's office where he would wait in the car until Lawder returned. He would then drive Lawder to a pharmacy and again wait in the car until the tablets were obtained. The money to purchase the drugs was supplied by Smith or Aarons. The drugs were distributed to the three conspirators and used by them as above indicated.

Smith took the stand in his own defense. He admitted his association with the criminal witnesses in the case. He explained that association, however, by suggesting that in his work as a policeman, it was necessary to use informants and the informants were usually drug addicts or confirmed criminals of one kind or another. He denied any participation in, or knowledge of, the conspiracy to obtain narcotic drugs testified to by Lawder and Aarons. He denied also illicit relations with Marguerite Fredericks and Opal Jackson although he admitted knowing them and being with them on various occasions. He also admitted driving to San Antonio with Lawder in a police car.

The Government evidence, if it is to be credited, clearly establishes beyond peradventure of doubt the guilt of the defendant as charged. Realizing that this is so, appellant spends most of his brief berating the Government's witnesses, calling them what they obviously are, and suggesting that they are not to be believed. This argument should have been made, and we presume it was, to the trial court which, sitting without a jury, found the defendant guilty. This court does not determine the credibility of witnesses or the weight of their evidence. Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442. The trial judge here, an experienced jurist, learned in the criminal law, assayed the credibility of these witnesses and weighed their evidence. Based on that determination, he convicted the defendant and that conviction cannot be set aside by this court unless error of law, as charged by appellant, appears in...