United States v. Brookman

• Decision Date: 26 February 1924
• Citation: 1 F.2d 528
• Parties: UNITED STATES v. BROOKMAN.
• Court: U.S. District Court — District of Minnesota

1 F.2d 528 (1924)

UNITED STATES v. BROOKMAN.

District Court, D. Minnesota, Fourth Division.

February 26, 1924.

Lafayette French, Jr., U. S. Atty., of St. Paul, Minn.

Donald G. Hughes and Neil Hughes, both of Minneapolis, Minn., for defendant.

McGEE, District Judge.

The indictment in the instant case was presented against the defendant on the 19th day of October, 1923. It contains two counts, charging the defendant with violations of the Act of December 17, 1914, as amended, otherwise known as the "Harrison Anti-Narcotic Act." Comp. St. 1918, Comp. St. Ann. Supp. 1919, Comp. St. Ann. Supp. 1923, § 6287g et seq.

On the 22d day of October, 1923, the defendant was arraigned, entered pleas of not guilty, and was tried on November 1 and 2, 1923. When the case was called for trial, the defendant interposed a written "challenge to the entire panel of petit jurors of said term," which challenge was overruled. The jury returned a verdict of guilty on both counts. The defendant was sentenced to imprisonment in the United States penitentiary at Leavenworth, Kan., for the term of five years on each count, the terms of imprisonment to be served consecutively.

On December 29, 1923, what is designated in the moving papers of the defendant as a "motion for a new trial and motion to quash the indictment" was heard and denied, and on the 12th of January, 1924, a motion in arrest of judgment was also heard and denied. The matter is now presented on an application for the allowance of a writ of error and supersedeas.

The assignments of error practically present for consideration three questions: First, whether the petit jury for the October, 1923, term of court was properly drawn, a question, it will be noted, that has no reference whatever to the guilt or innocence of the defendant; second, whether the indictment is fatally defective, when assailed after verdict, because of the omission therefrom of the word "feloniously"; third, whether it was error for the court in its charge to have cautioned the jury against drawing any inference unfavorable to the defendant from the fact that he did not take the stand as a witness in his own behalf. These assignments of error will be taken up and considered in their order.

It may conduce to a clear understanding of the legal questions presented to briefly consider the case submitted to the jury. The first count of the indictment, in the usual form, charges that the defendant on the 14th of September, 1923, in the city of Minneapolis, in the state and district of Minnesota, unlawfully and knowingly, sold morphine and cocaine to one Vera Davey. The second count, in like manner, charges that the defendant, at the same place, on the 24th of September, 1923, unlawfully and knowingly sold cocaine to one Ted Baggott.

In support of the first count of the indictment it appeared by the testimony of Narcotic Officers John P. Wall, Owen J. Stearns, and Willis I. Heiberg that Vera Davey was known to them for about one year prior to September 14, 1923; that she was a drug addict; that about noon on the 14th day of September, 1923, she was brought to the office of the Narcotic Division in the Federal Building in Minneapolis, Minn., by a Minneapolis city detective named Walter Palmersten; that a conversation ensued between Wall and Mrs. Davey, in the presence of the other narcotic officers and the police officer, the result of which was that Mrs. Davey agreed to aid and assist the government officers in the matter of apprehending venders and peddlers of narcotic drugs.

When that arrangement was reached, Mrs. Davey, using the phone in the narcotic office, in the presence and hearing of the officers mentioned, called Kenwood 4310, and had a conversation with a person whom her testimony on the trial disclosed was the defendant, Brookman. According to the testimony of Mrs. Davey, the following conversations took place. She said, "Hello; is that you, Roy?" and he said, "Yes," and she said, "How about it?" He said, "All right; fine." She said, "How long?" and he said, "Call me in about 15 minutes," and he hung up, and when she called him in about 15 minutes she said, "This is Vera," and said, "How about it?" to which the defendant replied, "All right; come on."

It appeared from the testimony of Mrs. Davey that she had known of the defendant for about three years prior to the date in question, and had known him personally for about six months prior thereto, had bought narcotic drugs from him about ten times in that period, and was also accustomed to buying part of her supply of narcotic drugs from others in the same house, the home of Paul Cain, 1422 Nicollet avenue, Minneapolis, Minn.

Mrs. Davey testified that, when she was with the narcotic agents in the Federal Building at the time mentioned, she had no drugs in her possession. Her hair, purse, and outer clothing were searched by the narcotic officers, and she was then given $8, by Inspector Wall, left the Federal Building, located on Marquette avenue, with the officers, went out that avenue to Grant street, while Officers Wall and Heiberg proceeded on the other side of the same avenue, in the same direction, to the same point, keeping her in view at all times, to be certain that she communicated with no one.

When the intersection of Grant street and Nicollet avenue was reached, she crossed to the west side of Nicollet avenue. Inspector Heiberg did likewise. Wall remained at the intersection, where he could and did see Mrs. Davey at all times as she proceeded a block and a half to, and entered, No. 1422 Nicollet avenue, the residence of Paul Cain, and where, pursuant to the phone arrangement, she was to meet and receive from the defendant morphine and cocaine.

Heiberg kept within 25 or 30 feet of her until she entered 1422 Nicollet avenue, and then passed on beyond a short distance to the corner formed by the intersection of Nicollet avenue and Fifteenth street. Mrs. Davey testified that the defendant opened the door, conducted her to his bedroom, and produced the drugs, delivered them to her, and received from her the $8, the narcotic inspector had given her. After ten minutes in the house, she returned to the street, retraced her steps to the Federal Building following the same course taken on the outward movements, and was followed by the two inspectors on the other side of the avenue; both parties reaching the Federal Building at the same time. On arriving at the narcotic office, she delivered to Inspector Wall the cocaine and morphine she received from the defendant.

The testimony of Inspectors Wall and Heiberg, and of Mrs. Davey and of the government chemist, together with the drugs received by Mrs. Davey from the defendant, was all the evidence offered or received on the trial in connection with the first count in the indictment, and was not in any manner contradicted.

The evidence in support of the second count of the indictment, stated as briefly as possible, is as follows:

Narcotic Inspectors Wall, Stearns, Heiberg, and Hesse, on the forenoon of the 24th of September, 1923, shortly before noon, apparently having received information that led them to do so, went to the bedroom of one Ted Baggott in the Stockholm Hotel in Minneapolis, Minn., and found Baggott in bed; made a search of his room, but discovered nothing but wearing apparel. They returned to the narcotic office in the Federal Building, accompanied by Baggott, about noontime; remained there until about 3 o'clock. Baggott was a drug addict, and, according to the testimony, volunteered to assist the government in apprehending narcotic venders and peddlers, and as a result of the arrangement then made, using the telephone in the narcotic office, he called the phone number Kenwood 4310, at the residence of Paul Cain, 1422 Nicollet avenue, Minneapolis, Minn., the same phone and street number used by Vera Davey when she called up the same defendant from the narcotic office ten days before. Baggott used the phone three times. This occurred in the presence of the narcotic officers named and Minneapolis Police Officers Lehmeyer and Mullen, and apparently the phone conversations were along the same lines as those testified to by Vera Davey, and resulted in an arrangement by which Baggott was to meet and receive narcotic drugs from the defendant on Fifteenth street, around the corner from the intersection of Nicollet avenue with that street, and at a point where the north and south alley in the middle of the block opens onto Fifteenth street.

After the phone conversations, the four narcotic officers named had Baggott remove all of his clothes, including his shirt, undershirt, underwear, shoes, and stockings, which were thoroughly searched, including the seams, to ascertain whether Baggott had any money or narcotic drugs on his person, or in his clothes. Neither money nor drugs was found. After the search was completed, Baggott was given $3.50 in marked money, consisting of three $1 bills, the serial numbers of which were taken, and a 50-cent piece marked by a cross cut in the tail of the eagle.

Baggott then accompanied the narcotic and police officers named to the street and entered a Ford car, accompanied by Inspectors Wall and Hesse. Wall drove the car, and proceeded to a point on La Salle avenue, the first thoroughfare west of, and parallel to, Nicollet avenue, to a point between Fourteenth and Fifteenth streets. Arriving there, Baggott, with the marked money in his possession, left the car and proceeded to the corner of Fifteenth street and La Salle avenue, turned to his left, and proceeded east on Fifteenth street towards Nicollet avenue. The officers remained in the car and drove to the corner of Fifteenth street and La Salle avenue, which point had been reached by the other two narcotic officers and Police Officers Lehmeyer and Mullen in another car. At this time the car last mentioned moved from the intersection of Fifteenth street and La Salle avenue, east towards...