United States v. Cohen, 63.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: L. HAND, SWAN and AUGUSTUS N. HAND, Circuit
• Citation: 124 F.2d 164
• Parties: UNITED STATES v. COHEN et al.
• Docket Number: No. 63.,63.
• Decision Date: 02 March 1942

124 F.2d 164 (1941)

UNITED STATES
v.
COHEN et al.

No. 63.

Circuit Court of Appeals, Second Circuit.

December 1, 1941.

Writ of Certiorari Denied March 2, 1942.

124 F.2d 165

Saul Price, of New York City, for appellant Philip Cohen.

Henry G. Singer, of Brooklyn (Henry G. Singer and Hamilton Lieb, both of Brooklyn, of counsel), for appellants Abraham Lorber and Albert Angelson.

Herbert Zelenko, of New York City, for appellant Samuel Bernstein.

Harold M. Kennedy, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith and James G. Scileppi, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for appellee United States of America.

Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.

Writ of Certiorari Denied March 2, 1942. See 62 S.Ct. 796, 86 L.Ed. ___.

AUGUSTUS N. HAND, Circuit Judge.

The defendants were indicted and convicted under two counts (1) for knowingly concealing and facilitating the concealment of three grains of morphine knowing that it was imported contrary to law and (2) for knowingly concealing and transporting and facilitating the concealment and transportation of thirty-nine ounces of morphine knowing the same to have been so imported. Both counts charged a violation of U.S.C.A. Title 21, Section 174, which reads as follows: "If any person fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or assists in so doing or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, such person shall upon conviction be fined not more that $5,000 and imprisoned for not more than ten years. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."

U.S.C.A. Title 18, Section 550, provides that: "Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal."

The defendants were all convicted upon both counts and each has appealed. Under the first statute we have quoted it was only necessary to show possession of the narcotics to establish guilt and under the second statute, making an abettor a principal, it was not necessary that each of the defendants should have had the narcotics, but only that one or more of them had possession while the others aided in the illicit transaction to which that possession was incidental. United States v. Hodorowicz, 7 Cir., 105 F.2d 218, 220, certiorari denied, 308 U.S. 584, 60 S.Ct. 108, 84 L. Ed. 489; Vilson v. United States, 9 Cir., 61 F.2d 901.

The denial of the very usual motions for severance and separate trials (which it is to be observed the defendant Bernstein did not make) is relied upon as a ground for reversing the judgment. Ordinarily the granting of such motions is within the discretion of the trial court and, where the charge against all the defendants may be proved by the same evidence and results from the same series of acts

124 F.2d 166

as was the case here, the discretion should not be interfered with. United States v. Smith, 2 Cir., 112 F.2d 83, 85. Cohen objected to being tried with the others because he was under indictment for murder in the State Court. We can see no relevancy in this objection. The objection, if good, would prevent his trial singly. Lorber and Angelson objected...