United States v. Turner, 425.
| Citation | 65 F.2d 587 |
| Decision Date | 29 May 1933 |
| Docket Number | No. 425.,425. |
| Parties | UNITED STATES v. TURNER. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Samuel J. Siegel, of New York City, for appellant.
George Z. Medalie, U. S. Atty., of New York City. (William W. Prager, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before MANTON, SWAN, and CHASE, Circuit Judges.
Appellant's conviction is challengeable for error in the charge to the jury which requires our reversal and a new trial. The indictment contained six counts. He was acquitted on the first and second counts and convicted on the third count; the others were dismissed.
The third count charged him with unlawfully, willfully, knowingly, and fraudulently receiving and concealing and facilitating the transportation and concealment of heroin knowing the same to have been imported and brought into the United States contrary to law. The first count charged him with selling the same heroin when not in the original stamped package, and the second count charged him with selling the heroin mentioned in the first count contrary to the law without a written order upon a form issued in blank for that purpose by the Commissioner of Internal Revenue of the United States. He was thus acquitted of the sale of that which he was charged with receiving, concealing, and transporting, knowing the same to have been imported, as stated in the third count.
The evidence of the government was, in substance, that September 28, 1932, appellant was seen entering an apartment house where he lived, and just before that time he spoke to one Dougher, who was standing on the street nearby, and when the appellant came out he joined Dougher, walked around the corner, and gave him a small package, and in turn Dougher handed him a bill which he placed in his pocket. Appellant was then arrested, and the package of narcotics was found in Dougher's pocket and a $5 bill in appellant's pocket. The appellant's explanation was that he met Dougher as described and asked him for a loan of some "stuff," and Dougher gave him a package. He went upstairs, used it there, and came down again and returned what was left to Dougher, for which he gave him a bill. It may well be that the jury was satisfied with appellant's explanation, since they acquitted him on the first and second counts charging him with having sold the drug to Dougher.
After the completion of the main charge, the appellant requested the court to charge that "if the jury find, from all the evidence, that Turner, when he received the drug from Dougher, did not know that it had been imported and brought into the United States contrary to law, and that Turner did not well know this fact, they must acquit him under the third count of the indictment," which the court refused, saying: "The only reason I deny it is by reason of the presumption of fact which Congress has placed in the statute."
The statute, title 21, § 174 U. S. Code (21 USCA § 174) provides in part: "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."
The jury, after some deliberation, returned for instructions, and the following took place:
"The Court: Gentlemen, I have your inquiry, `Will you please advise us if the defendant admits possession, is he automatically guilty of the third count?' "The answer to that is that if you find that he received or concealed the narcotics here in question and he has not satisfied you that his receipt thereof was lawful and for a lawful purpose and that he was entitled so to have them under the law as I have given it to you here, then you may find him guilty under that count of the indictment. Does that answer your query?
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...in Griego v. United States, 10 Cir., 298 F.2d 845, 848-849; United States v. Feinberg, 7 Cir., 123 F.2d 425, 427; and United States v. Turner, 2 Cir., 65 F.2d 587, 588. In each of those cases it was held that testimony by the defendant that he did not know the drugs were illegally imported,......
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