Taliaferro v. United States, 6319.

Decision Date24 February 1931
Docket NumberNo. 6319.,6319.
Citation47 F.2d 699
CourtU.S. Court of Appeals — Ninth Circuit

Jesse G. Benson, of Oakland, Cal., and John E. Truman, of San Francisco, Cal., for appellant.

Geo. J. Hatfield, U. S. Atty., and Wm. A. O'Brien and Albert E. Bagshaw, Asst. U. S. Attys., all of San Francisco, Cal.

Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

Appellant, hereinafter designated as the defendant, was found guilty of unlawful possession and transportation of intoxicating liquor. Upon the trial of the case, two prohibition agents testified that they entered the defendant's place of business in Oakland, Cal., and, after a brief conversation with him, ordered and paid the defendant for a bottle of liquor. It was then agreed that the liquor was to be delivered at Fifty-Seventh and Adeline streets in said city. At that place defendant in his own automobile drove alongside one being used by the agents, and handed Agent Buckley a glass bottle containing the liquor. Thereupon the defendant was placed under arrest. Immediately thereafter defendant grabbed the bottle and broke it by striking it upon the clutch or brake lever of the automobile. The two agents testified that a small quantity of the liquor was recovered from the broken bottle and some of it was mopped up from the floor of the automobile. The liquor was delivered to a chemist who analyzed it and found its alcoholic content to be 44.1 per cent. per volume. There was testimony on behalf of the defendant tending to contradict the witnesses for the prosecution with reference to the recovery of the liquor. This testimony tended to show that the condition of the floor of the car was such that the liquor would not have remained thereon, but would have run through the cracks in the floor boards and immediately disappeared. Numerous exceptions were reserved during the trial, but there are only three specifications of error relied on.

First, it is contended that the court erred in admitting testimony to the effect that the defendant has previously been a prohibition agent. It is not unusual and ordinarily not improper to ask a witness when and where he became acquainted with the defendant and what the latter's occupation was at the time, unless, of course, it is manifest that the purpose is to prejudice the jury against him.

It is a matter of common knowledge that there are prohibition agents good, bad, and indifferent, and there is nothing in the record to indicate to which classification this defendant belonged. Judging by his actions, it would seem that his experience as prohibition agent had taught him that, in order to justify conviction, it is necessary to prove that the liquor is intoxicating; hence his efforts to destroy it. We cannot say that the admission of this testimony tended to bias or prejudice the jury against the defendant. Authorities cited by counsel in assigning this error are not controlling or in point. They hold that it is reversible error to admit evidence that the defendant had previously committed other crimes or consorted with lawless persons, or been dishonorably discharged from the Army, etc. If the evidence was not prejudicial in fact, it cannot be held to have been prejudicial in contemplation of law.

The second assignment is also without merit. It merely emphasizes the one just referred to, and is confined solely to the statement made in argument by the prosecuting attorney that "the defendant was a prohibition agent." It is true that the prosecuting attorney went further in his argument in that connection, but the further statement was not objected to or assigned as error.

The remaining assignment also relates to the argument of the prosecuting attorney. The record shows that during the course of his argument to the jury he stated:

"Much has been made by the defense of the point that the liquor could not have stayed in the floor of the car. Witnesses testified that after the car was returned from the prohibition department that they tried it by pouring in water which ran out immediately. But there was no showing that the floor of the car was in the same condition when they performed their tests, as it was the night of the arrest. As a matter of fact, while the prohibition department had it, we removed the floor-boards to take out the battery and the floor was in a different condition then than upon the night of the arrest. I know that of my own knowledge."

When this statement was made counsel for the defense made objection on the ground that it was outside the record,...

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9 cases
  • United States v. Marcello
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 15, 1970
    ...calculated to prejudice the defendant." Dunn v. United States, 5 Cir., 1962, 307 F.2d 883, 886 quoting from Taliaferro v. United States, 9 Cir., 1931, 47 F.2d 699. But the fact of the matter here is that the prosecutor's comment was not aimed at the memorandum itself but rather was aimed at......
  • Orebo v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 1, 1961
    ...States v. Spangelet, 2 Cir., 1958, 258 F.2d 338, Stewart v. United States, 1957, 101 App.D.C. 51, 247 F.2d 42, and Taliafero v. United States, 9 Cir., 1931, 47 F.2d 699. Nowhere did the District Attorney undertake the role of a "13th juror" in offering to the jury his personal views as was ......
  • Keeble v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 16, 1965
    ...he has not or could not prove by competent evidence. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Taliaferro v. United States, 9 Cir., 47 F.2d 699. On the other hand, not every impropriety of argument calls for a new trial or for a reversal of a judgment of conviction.......
  • U.S. v. Bowser
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 29, 1976
    ...and there was no prejudicial error, plain or otherwise. Davison v. United States, 368 F.2d 505 (9th Cir. 1966). Cf. Taliaferro v. United States, 47 F.2d 699 (9th Cir. 1931), where counsel added "I know that of my knowledge", and we Appellant complains of the admission into evidence of state......
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