United States v. Kaiser, 8305.

• Decision Date: 03 January 1944
• Docket Number: No. 8305.,8305.
• Parties: UNITED STATES v. KAISER.
• Court: U.S. Court of Appeals — Seventh Circuit

138 F.2d 219 (1943)

UNITED STATES v. KAISER.

No. 8305.

Circuit Court of Appeals, Seventh Circuit.

October 28, 1943.

Writ of Certiorari Denied January 3, 1944.

Raymond F. Hayes and J. Glenn Shehee, both of Chicago, Ill., for appellant.

J. Albert Woll and Mary D. Bailey, both of Chicago, Ill., for the United States.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

Writ of Certiorari Denied January 3, 1944. See 64 S.Ct. 431.

MAJOR, Circuit Judge.

Defendant, after trial by jury, was found guilty of violating the Harrison Narcotic Act, 26 U.S.C.A. Int.Rev.Code, § 2554(a). Upon such finding, the court entered judgment from whence comes this appeal. The indictment contains two counts, in each of which the defendant is charged with selling morphine sulphate to George Hollenbeck. The first sale is charged to have been made June 30, 1942 and the second August 10, 1942.

Four witnesses testified for the government, Hollenbeck and three narcotic agents. Hollenbeck testified that he made the purchases from the defendant as charged, and was strongly corroborated by the testimony of the agents, who had furnished him with the money to make such purchases and with whom he was cooperating.

The sole issue presented on this appeal is that of entrapment. We are confronted with what may well be termed an extraordinary situation in that no such defense was interposed in the court below. The defense there relied upon was that of alibi. The defendant specifically denied making the sales as charged or that he at any time had transactions of any character with Hollenbeck. He definitely fixed his whereabouts at a place where it would have been impossible for him to have made the sales as testified to by Hollenbeck. Two witnesses testified on behalf of defendant and corroborated his defense of alibi.

At the conclusion of the government's proof, as well as at the conclusion of all the proof, defendant's counsel moved "the court to instruct the jury to return a verdict of not guilty." No question having been raised as to entrapment, the court's charge to the jury made no reference thereto, although the court at the conclusion of its charge specifically inquired, "Are there any other matters that I ought to instruct upon?" The response from defendant's counsel to such inquiry was, "I think that is fair." So far as the record discloses, the defense of entrapment was mentioned for the first time in the notice of appeal, which stated as one of its grounds, "The evidence affirmatively shows that the defendant was entrapped, etc."

It is a well settled rule that an appellate court will review only questions brought to the attention of the trial court and upon which the trial court has made a ruling. Ayers v. United States, 8 Cir., 58 F.2d 607 (and cases therein cited). The defendant makes the ingenious argument that notwithstanding no claim of entrapment was made during the trial, it was raised by his motion for directed verdict and passed upon by the court in its denial of such motion. In our judgment, this contention is wholly without merit; in fact, it is doubtful if defendant's general motion was sufficient to raise any question, even the sufficiency of the evidence. A motion in identical language was held insufficient in Ayers v. United States, supra, 58 F.2d at page 608, wherein the court quoted with approval from Mansfield Hardwood Lumber Co. v. Horton, 8 Cir., 32 F. 2d 851, as follows: "* * * that such motion, request, or other equivalent action must be based upon a specific ground or grounds stated in apt words and brought sharply to the attention of the court; that a ruling must be obtained and an exception preserved. A general motion stating no grounds is not sufficient."

To countenance the contention made...