Williams v. United States

• Decision Date: 02 March 1925
• Docket Number: No. 4140.,4140.
• Citation: 4 F.2d 432,55 App. DC 239
• Parties: WILLIAMS v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 239, 4 F.2d 432 (1925)

WILLIAMS v. UNITED STATES.

No. 4140.

Court of Appeals of District of Columbia.

Submitted January 5, 1925.

Decided March 2, 1925.

W. E. Leahy and E. S. Clark, both of Washington, D. C., for appellant.

Peyton Gordon and J. H. Burnett, both of Washington, D. C., for the United States.

Before ROBB and VAN ORSDEL, Associate Justices, and SMITH, Judge of the United States Court of Customs Appeals.

SMITH, Acting Associate Justice.

This is an appeal from a judgment of the Supreme Court of the District of Columbia, sentencing the appellant, Charles Williams, to imprisonment for a period of five years in a penitentiary to be designated by the Attorney General.

It appears from the record that Williams was indicted on the 30th of December, 1922, and charged, first, with selling and dealing in narcotics between the 2d of January, 1922, and the 5th of December, 1922, without registering his business with the collector of internal revenue and paying the special license tax prescribed therefor; second, with selling on the 10th of October, 1922, to one Charles F. Ruby, narcotics, without procuring from Ruby the written order prescribed by law; third, with making sales of narcotics on the 10th of October, 1922, in packages other than the original packages bearing the proper revenue stamps. The defendant, on his plea of not guilty, was brought to trial on the indictment before a jury duly impaneled, and found guilty as charged, whereupon the court entered the judgment hereinbefore mentioned, from which judgment this appeal was taken.

After the jury was impaneled, counsel for the United States made his opening statement, and among other things said to the jury: "The government will show you that on another occasion, October 16, 1922, about 7:30 p. m. —" At this point counsel for the defense objected to the language quoted, on the ground that it was not within the scope of the indictment. Replying to the objection, counsel for the government stated that "The dealer's count charges that between the 2d of January, 1922, and the 5th of December, 1922, the defendant dealt in narcotics, and it was in support of that count that I have been referring to —" To that incomplete statement defendant's counsel objected, on the ground that the defendant could not know what charge he was called upon to meet. The court then inquired as to whether the government proposed to show additional instances other than those referred to in the second and other counts. To which the attorney for the United States responded as follows: "Not additional instances, if your honor please, but conversations had with the defendant tending to show —" And to that unfinished statement counsel for the defendant again objected, and moved that a juror be withdrawn, because of misconduct of the district attorney. Apparently the jury withdrew pending discussion of the motion, but counsel for defendant insisted that a juror should be withdrawn, because of what had already taken place in the presence of the jury. The court refused to withdraw a juror, and defendant excepted. Counsel for the defendant then requested the court to require the district attorney to show that the defendant was within the class that was required to register, unless he was found in the possession of the contraband drug, and to rule that, if the defendant was not found in possession of the drug, he could not be charged as a dealer and distributor. The court refused to require the district attorney to show that the defendant was required to register, unless he was found in possession of the contraband drug, and to that ruling the defendant excepted.

The testimony introduced on the part of the government tended to show that Charles F. Ruby was introduced to the defendant on the 10th of October, 1922, about 11 o'clock in the morning; that Ruby went to Williams' home at 410 Third Street, S. W., Washington, D. C., and found Williams in front of his house, working on his automobile; that he asked Williams if he would sell him some dope, and that Williams answered, "Yes, how much?" that Ruby responded, "$10 worth;" that Williams said he did not wish to sell $10 worth, but that he would sell $25 worth; that Ruby replied that he had only $10, whereupon Williams called to a man on the other side of the street and told the latter "to go in and get it"; that the man so called by Williams went through the archway at 410 Third Street, S. W., and that Ruby was then instructed by Williams to go to 4½ and D streets and to wait for Williams at that point; that Ruby went to 4½ and D streets, and waited there until a machine driven by Williams arrived; that a man who was in the machine with Williams jumped out, gave Ruby some "dope" in a white package, and after receiving from Ruby the money for it jumped into the machine, which then drove away.

The evidence on behalf of the government established prima facie that the package received by Ruby at 4½ and D streets, was soon thereafter identified and delivered by him to Samuel L. Rakusin, and that Samuel L. Rakusin delivered it for analysis to Albert B. Spear, a chemist, with a memorandum thereon to identify it. Spear testified that the package was identified to him by Rakusin "by means of writing * * * as being a package alleged to have been bought by one Charles F. Ruby." Spear said that he analyzed the contents of the package, and found that the package contained 95 grains of cocaine hydrochloride, a derivative of coca leaves. Counsel for the defendant objected to all testimony as to the identification and delivery of the package as hearsay, and as immaterial and irrelevant evidence. The objection was overruled, and the defendant excepted.

The defendant took the stand in his own behalf, and denied that he met Ruby in front of his house on October 10th. He testified that he never had any conversations with Ruby concerning the purchase of "dope," and that he never at any time drove an automobile from which a man alighted and gave Ruby a package. The testimony of the defendant was the only evidence in his behalf, and, the case having been submitted on both sides, the court, among other things, charged the jury as follows:

"Now, if you find that the defendant, Williams, had in his possession or under his control narcotics as set out in the indictment, then from that fact there arises a presumption of his guilt under the first count of the indictment. As to the second and third counts, the government must prove the specific sales mentioned therein to Ruby."

To that part of the instruction as to the presumption of guilt arising from the possession or control of narcotics the defendant excepted.

None of the assignments of error upon which the appellant relies can be sustained. The...