Woods v. United States

• Decision Date: 09 February 1922
• Docket Number: 1922.
• Citation: 279 F. 706
• Parties: WOODS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

279 F. 706

WOODS v. UNITED STATES.

No. 1922.

United States Court of Appeals, Fourth Circuit.

February 9, 1922

C. T Graydon, of Columbia, S.C., for plaintiff in error.

G. L B. Rivers, Asst. U.S. Atty., of Charleston, S.C. (Francis H Weston, U.S. Atty., of Columbia, S.C., on the brief), for the United States.

Before KNAPP, WOODS and WADDILL, Circuit Judges.

WADDILL Circuit Judge.

This is a writ of error to the judgment of the United States District Court for the Eastern District of South Carolina, at Charleston. The plaintiff in error was a dentist, and practiced his profession at Columbia, S.C.; his place of business being known as the Baltimore Dental Parlors.

The indictment against him contains seven counts, charging violations of the Harrison Anti-Narcotic Drug Act (Comp. St Secs. 6287g-6287q). The first count alleges the sale to J.L. Brooks of morphine; the second and third counts, the sale to J.L. Brooks, on different dates, of cocaine; the fourth count, the sale of morphine to Charles Duncan, and, the fifth count, the sale to him of cocaine; the sixth and seventh counts charge the sale of morphine and cocaine, respectively, to divers persons to the grand jurors unknown. The accused was tried at the June, 1921, term of court, and a general verdict of guilty rendered against him, upon which the court, on the 18th day of June, 1921, entered judgment, imposing a fine of $1,000, and the costs of the prosecution, and confinement for the term of 18 months in the penitentiary.

Sundry exceptions were taken to the action of the court pending the trial, and a large number of assignments of error, 24 in all, made.

These several assignments will be considered and disposed of, not in the order named, but grouped according to their respective subjects-matter.

First. Assignments 1, 2, and 23, relate to the refusal of the court to quash the first, sixth, and seventh counts, the first because the date of the commission of the offense is fixed subsequent to the date of the indictment, and the sixth and seventh counts, because of vagueness and uncertainty in the averments thereof.

While the assignments of error properly set forth the alleged errors complained of, it does not appear that either a motion to quash, or a demurrer to the indictment and the several counts thereof, was entered; and the questions covered by the assignments were for the first time raised on motion in arrest of judgment. These assignments, in our judgment, are wholly without merit, certainly when made in arrest of judgment, and after a general verdict and judgment upon all of the counts of the indictment has been entered against the defendant. Nothing is better settled than that a verdict and judgment upon an indictment containing several counts should not be reversed, if any one of the counts is good and warrants the judgment. The presumption of the law is that the court awarded sentence on the good count only. Claassen v. United States, 142 U.S. 146, 12 Sup.Ct. 169, 35 L.Ed. 966; Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830; Durland v. United States, 161 U.S. 314, 16 Sup.Ct. 508, 40 L.Ed. 709; Gregory v. United States (C.C.A.) 272 F. 119; Rev. Stat. Sec. 1024 (Comp. St. Sec. 1690).

Second. Assignments Nos. 3, 4, 5, 11, 13, 16, 17, 18, and 19, severally relate to the action and ruling of the court during the trial, upon the admission or rejection of testimony, either because the same was plainly hearsay in character, or involved collateral and incidental matters in no way essential to the merits, or which arose upon questions wholly within the discretion of the trial judge, whose conclusions respecting the rulings covered by the said several assignments are free from error, and quite as favorable to the plaintiff in error as he could have asked for.

Third. Assignments 6, 7, 8, 21, and 24, relate to the swearing out of the search warrant, to search the premises of the defendant, and the taking thereunder of two $5 bills, and a quantity of small pasteboard boxes, commonly called pill boxes, as set forth and described in the return to said warrant. The defendant promptly objected to the testimony bearing on this warrant, and the search made thereunder, because, among other things, the warrant was sworn out on information and belief only, and did not state the grounds of the belief, or the source of the information of the person swearing out the same, nor describe the property to be seized. The court overruled the objection, and admitted the affidavit and search warrant in evidence, as well as the property claimed to have been taken under it; and it is as to the correctness of this ruling that we are called upon to pass.

The circumstances under which the warrant was sworn out are briefly these: The official narcotic inspector, as well as a prohibition representative at Columbia, S.C., and certain subordinates of theirs, were endeavoring to find the source of narcotic sales then believed to be going on in the community; and, in that connection, took into their confidence a man named Brooks, a drug addict, giving him four marked $5 bills with which to make purchases of drugs, and locate the sellers. Brooks shortly succeeded, through the co-operation of another government witness, Frederick Stanton, otherwise known as 'John,' in making purchases of drugs, one box, according to his statement, directly from Dr. Woods, two boxes from Stanton, who claimed after his arrest that he was a regular agent of the plaintiff in error in making sales of drugs, and one box from one Peake; Brooks testifying that Peake purchased the box from the Baltimore Dental Parlors. Of the said boxes, one contained morphine, and the other three cocaine, and the marked $5 bills were paid one for each box. Two of the marked bills were found on Stanton, upon his arrest, and the other two, hereinbefore mentioned, upon the defendant at the time of the service of the search warrant, which occurred late on the evening of Stanton's arrest.

The witness Brooks testified that he had on many occasions purchased drugs from Dr. Woods direct. Frederick Stanton, otherwise 'John,' testified that he had likewise purchased drugs from Dr. Woods, and was his agent for the sale of drugs. Charles Duncan also testified that he had purchased drugs direct from Dr. Woods.

The affidavit and search warrant were made and issued pursuant to the provisions of section 3462 of the Revised Statutes (Comp. St. Sec. 6364), which is as follows:

'Sec. 3462. The several judges of the Circuit and District Courts of the United States, and commissioners of the Circuit Courts, may, within their respective jurisdictions, issue a search warrant, authorizing any internal revenue officer to search any premises within the same if such officer makes oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being committed upon or by the use of the said premises.'

And they were in the precise words of the act; the commissioner certifying that the narcotic agent, after being duly sworn, 'deposes and says that he has good reason to believe, and does believe, that a fraud upon the revenue of the United States has been and is being committed upon and by the use of certain premises and offices occupied by H. Ashwell Woods in the building situated at 1328 Main street, Columbia,' and the search warrant reciting this affidavit directed that search be made of the premises. By virtue of this search warrant, the officers accosted the defendant at the entrance to his place of business, at the address stated in the warrant, and accompanied him into the office rooms, and, while there attempting to search the defendant, he took from his pockets and laid down on the table a small pocketbook and some money, which money was picked up and examined by an officer and found to contain one of the marked $5 bills in question. After a thorough search of the premises, the defendant was informed that he would be arrested. The United States Commissioner was called up over the phone, and the defendant's temporary bail fixed, which he secured by the deposit of a Liberty Bond for $1,000 and $100 in cash, which included one of the marked $5 bills. Whether the warrant of arrest was actually issued that night, or the next day, does not clearly appear from the record.

A careful examination of this search warrant, and the affidavit on which the same was issued, convinces the court in the light of the authorities (Boyd v. United States, 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652 L.R.A. 1915B, 834, Ann.Cas. 1915C, 1177; ...