Yep v. United States
Decision Date | 11 April 1936 |
Docket Number | No. 1281.,1281. |
Parties | YEP v. UNITED STATES. |
Court | U.S. Court of Appeals — Tenth Circuit |
Charles J. Moynihan, of Montrose, Colo. (Moynihan, Hughes and Knous, of Montrose, Colo., on the brief), for appellant.
David H. Morris, Asst. U. S. Atty., of Denver, Colo. (Thomas J. Morrissey, U. S. Atty., of Denver, Colo., on the brief), for the United States.
Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.
Since our former opinion was filed herein, 81 F.(2d) 637, Yep has filed a petition for rehearing and the trial court has entered and caused to be certified to this court the following order:
Under that order, when holidays and Sundays are excluded (see rule 13, Rules of Practice and Procedure, after plea of guilty, verdict or finding of guilt in Criminal Cases 28 U.S.C.A. following section 723a), Yep had until July 31, 1935, to procure to be settled and to file in the District Court, a bill of exceptions.
It follows that the bill of exceptions was filed in time and should be considered.
Yep's principal defense was entrapment.
On October 24, 1934, the date the offenses charged in counts 2, 3 and 4 were alleged to have been committed, and for some time prior thereto, Yep owned and operated a tea room known as the Shanghai Café at 1528 Curtis Street, Denver.
On September 24, 1934, Noel, an investigator for the United States, and narcotic agent, Moss, went to Yep's tea room. Moss introduced Noel to Yep as an out of town dealer in narcotics, under the name of Eddie Craxton. Noel told Yep he was going to Albuquerque, New Mexico, and would be in the market for some morphine and requested Yep to write him. Yep said he would see what he could do about getting Noel a connection for morphine.
Thereafter, Manning, supervisor of narcotics at Denver, caused a letter to be written to Yep as from Albuquerque, New Mexico, signed Eddie Craxton and dated October 6, 1934. Manning had one of his agents mail the letter to Yep from Albuquerque.
Government Exhibit N reads as follows:
The last line of Exhibit N was written in pencil. The other portions of the letter were written on a typewriter. Esther Hauth was employed by Yep at his restaurant for many years. She testified she wrote that portion of Exhibit N which is in pencil at Yep's request, but did not write the typewritten portion, that there was a typewriter at the tea room; and that the typewritten portion of the letter looked like it had been written on that typewriter.
During the testimony of police officer, Finnie, a witness for the United States, the following occurred:
At the time of the conversation between Finnie and Esther Hauth, Yep was under arrest.
When one is under arrest or in custody, charged with crime, he is under no duty to make any statement concerning the crime with which he stands charged; and statements tending to implicate him, made in his presence and hearing by others, when he is under arrest or in custody, although not denied by him, are not admissible against him.1
Yep testified that Moss wrote the typewritten portion of Exhibit N and signed the name "Joe" to it. Moss had told Yep his name was "Joe Thomas." If Yep were warned by Esther Hauth, it would go to the good faith of his defense of entrapment.
Esther Hauth's statements to Officer Finnie were not made under oath, and were not impelled by any circumstances of res gestæ, and Finnie's evidence thereof was hearsay. What she narrated to Finnie, if true, the government should have proved by her when she appeared as its witness, where her evidence would have been given under the sanctity of an oath and could have been subjected to cross-examination and other tests of its truthfulness.
We think the admission of Finnie's evidence quoted above, was erroneous and prejudicial.
The issue of entrapment under the evidence and the principles laid down in Sorrells v. U. S., 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249, was one of fact for the jury.
Reversed and remanded with instructions to grant Yep a new trial.
It was stated in our former opinion that apart from the procedural question decided, we had examined the bill of exceptions with care, and that, if it were open to consideration, it would fail to present prejudicial error and would disclose substantial evidence to support the verdict. Now that it is before us in a technical sense, I adhere to that position.
I cannot agree that the principal defense to the offenses charged in the second, third, and fourth counts of the indictment...
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