*1 UNITED AEBY et ux. v. STATES.
No. Appeals Court States Circuit. Fifth 30, 1953.
June Aug. Denied
297 Dаllas, Atty., May, Lester Asst. U. S. L. Potter, Tex., Atty., U. Fort Frank B. S. Tex., appellee. Worth, for Judge, Chief Before Judges. RUSSELL, BORAH and Circuit RUSSELL, Judge. Circuit Norene Appellants, Aeby Aubrey prosecute Aeby, and wife and are husband of appeal from their conviction of, knowingly receiving and сon (1) fenses had heroin cealing 191 imported into illegally been such States, knowing of the defendants well knowingly importation,1*and, (2) unlawful or not in purchasing grains of 191 heroin stamped package and original appropriate affixed tax- which did not havе paid stamps required by Harrison Upon information filed that Narcotic Act.2 second or each of the defendants were sequent offenders, Aeby, hus band, imprisonment a for was sentenced to period years, Aeby, the Norene of 20 10 wife, imprisonment wаs sentenced to for years. up-
By specified and here insisted errors on, appellants bring review the suf- into indictment, sufficiencyof ficiency of the support convictions, the evidence to adequacy of the instructions of the court jury, allegedly prejudicial statements questions of the United Attor- States ney during progress trial, failure of the court to declare mistrial be- prejudicial gov- cause of statements testifying, well ernment witness when objections to the admission evidence who, claimed, a witness qualified properly as an We find indictment sufficient against to withstand attacks it. first count is attacked because it does charge that there was a “re fraudulent ceiving concealing” illegal her charge oin. This count does that the de “knowingly” did fendаnts receive and con heroin, knowing ceal the the same imported. unlawfully (21 The statute punish Dallas, 174) Martin, Jones, U.S.C.A. seeks to H. one wto H. § Joe James fraudulently knowingly imports appellants. or Tex., the liar- 2553(a), 21 Title Section. 174. Title U.S.C.A. Section 26 U.S.C.A. force, drug cоtic acting and conceals it after as detective with a war receives search imported rant, il being knowledge with defendants entered home of the legal importation. asleep wife, The first count found the *3 approached of person indictment in house charges the bed. the offense No knowingly receiving the heroin with between the time left and the knowl the husband edge importation entry plainly of its time of the house. unlawful officers’ into the jury states an So the offense under the statute. сould find that the articles and charges second count conditions in existed the defendants did un discovered the house “purchase departure lawfully pos at time of the and and have in their the husband’s Upon by grains awakening session” 191 of not in from were known him. аnd heroin or stamped original arresting the found that package and which it was tax-paid pinned her rubber appropriate gown did there was to a not have affixed finger stall of sub stamps.- upon containing have Seizing the words “and Throughout possession”, appellants that stance testified to be heroin. argue in their capsules, charged by gelatin is the house the officers found sought the offense to be it cellophane stalls, hypo bags, prohibited by finger the rubber offense' in fact the needles, gloves with of possession dermic rubber some the of the It is true that statute. scales, fingers removed, the delicate and prima prohibited raises the drug is what spoons. spoons, scales, stalls finger a of this “of violation evidence facie person hypodermic and of hero by needles had traces the in whose [2553(a)] section were However, in on them. Some of these articles may' possession be found.” same kitchen, on in the pro tables the visible in bath of purchasing the the offense is the room, kitchen stamped the scales were “except original the drug hibited appears So cabinet. far as the husband and pack original-stamped the from package or only occupants wife of the house. con were the of the is offense age.” This essential that We think clear from evidence as the allegation the charge and tained the the situation was such that the number and ren irregular, does not possession, while to paraphernalia location of articles thе defective. of the indictment count der this articles, unusual as and the nature of the could its inclusion how Nor are we shown especially gloves with well as the of rubber defendants, evidence prejudiced the have severed, fingers justify to was such as possession set separate of offense since the than an conclusion that more was involved 26 U.S.C.A. 3224 of Title forth in Section unfortunate case of a who an persons wife was ad by possession drugs of to relates tolerate, and might dict which the husband sрecial paid registered the who by they jury, if justify to a conclusion the offense which clearly it not this tax convinced, that of were so the husband the with anywise be to be included said can in receipt participated in household the the bring to so about in the indictment by large quantity her concealment of the of urged inconsistency contradiction possession the the oin found in actual of the defendants. home, purchase the well wife in rec the in the evidence find original other package. not from In circum facts and basis in sufficient ord words, pos that such heroin was also in his guilty re of support the verdicts to stances session, prima and thus raise evidence facie ex jury. Neither defendant by the turned charged. of the statute violation becoming a witness. privilege of ercised jury un Our statement that the government, thus for the was The evidence where, contradicted, after to find that the presented a case authorized substance person Aeby on the finger had been under stall of Norene оf defendants residence days, found thirty on and traces of which were on the oth some observation after arrest, er referred to was heroin date of articles early morning evidences to rejection of contention our of the husband had seen de the defendant fendants, conviction, urged after in the morn that at about 4:30 there home leave the legal proof work, and was that the observer no substance was a detective go ing Dallas, failure heroin because of the others, of the Tex- evi- all members two
299' viction, explains the chemist unless government show that the dence to possession quali jury,3 heroin was satisfaction testified it was who or, 2553(a), supra, as stated in Section “the witness an When this fied as tax-paid stamps by approрriate employed Al absence shown to be chemist Orleans, any he from drugs aforesaid shall Tax Division New cohol ex government’s prima evidence of a violation of proceeded identify the facie person posses- subsection whоse when making as to a test them hibits and may sion same “by at be found”. The Court they registered mail were received Orleans”, charged question pos- jury laboratory our in New *4 jury session that contained and also instructed the finger stall substance in the the house, herоin, possession if even there was in one’s approximately 191 of defense “you you object it, if not only, nothing to that.” knew of would stated “We counsel inquired, responsible criminally it,” be and Upon objection, for the Court later charged jury if de- objectiоn,” which counsel that the found “that the the to “What is immaterial, Aubrey Aeby knowledge fendant irrelevant and had no replied, “It is presence drugs of of the of his objected to the introduction these there in and we possession exhibits, heretofore, house, do not want wife’s in it and and his then the we your your privilege duty record.” At the would be to’ any matter in the to waive acquit testimony, coun him.” the witness’ We find no error in conclusion of this stated, object charge principal Court’s in to the testimo on the law of a agаin sel “We the instruct an ny,” court to offense and connection therewith on and asked the any purpose. aiding abetting. jury consider it In the latter connec- not to pre .ion, entirely the urged jury fail to Court the objections instructed that to court point urgеd and the was an aider now constitute or abettor it es- sent the was present person defendants’ sential of that such “should the nowise informed share qualification principal, of the criminal intent with that the wit the the contention expert party actually had been who testify as an not commits the offense” ness to “So, you objections irrelevancy further, and and if of find and believe shown. The defendants, plainly good. If the that of immateriality were not one the the defendant guilty is qualifications charged оf the witness had chal pre you indictment, opportunity have been further lenged, would find the Aubrey Aeby develop matter the further. had sented to actual knowl- question edge the having been raised of her conduct and that he aided and trial, carrying work, the dеfendants. abetted her on such can not now avail then Furthermore, any ques guilty of he would also be in the absence under the If law. trial, knowledge we think he had no of being tion raised at the her conduct and employed by acts, guilty, a chemist her would prima hе not be at least should facie desig acquitted.” Division who be charge Alcohol Tax was We think the the of the analyze sufficiently presented government test and ex Court jury to to>the nated the qualify principle jury an that the must would hibits believe that the possеssor actual of the heroin guilty was ele In of nature and the view Aubrey and that the defendant Aeby must and the manner ments the offenses of, knowledge participated have had indictment, charged the which these were in, with her commission the of the offensеs necessity for perceive no the court stat we charged before he should be convicted. In jury un the terms of statute ing to the general Court, of the charge view prosecution proceeding. der which the refusal of the requested defendаnts’ present Indeed, like in a case 2, charges subject 4 and on the pos- question is whether the defendant stantial session was not error. While the remain- had, have, possession or have shown to is requested ing parts instructions some possession for such drug, nаrcotic pertinent contained statements of law, these evidence to commingled deemed sufficient authorize con- are with unsound and incorrect supra.
3. Section Title 21 U.S.C.A.
soo legal propositions points conclusively and factual and the Court еvidence Norene’s to required good guilt. syllable was not to sift the direct, Not present jury, bad good single es- circumstantial, shred of the evi- general pecially charge points Aubrey’s. covered where dence the real case. issues in the Where, here, a an conviction calls for twenty year sentence, automatic courts query do not condone the at be should least certain that the convic- attorney propound government’s tion rests on evidence and not on mere con- ing question to witness as the defense jecture. judgment Believing that reputa Aubrey Aeby’s knowledge to his appellant should be reversed as to objection tion, interjecting nor to his Aeby for want evidence to sustain testimony the de another witness if conviction, respectfully I dissent from reputation,” going fendant was “not into his affirmance toas him. objection by nor counsel government’s testimony defendants on behalf of the denied; up a comment which could construed as *5 part Judge, Chief concurs and dissents Aeby’s on the defendant Norene failure part. However, no take the stand as witness. question or response testimony sus given and the court statements was question and objection to
tained disregard sugges jury to cautioned the attorney. district objection of the
tions and here, dowe circumstances
Under the grant any cause to sufficient there think The for a mistrial. motion v. STATES. defendants’ HENDERSON UNITED of a mo overruling is true as same No. 14344. prejudicial mistrial based tion for Appeals States Court government’s witness statement Fifth Circuit. “had let women take he knew 30, June Court told him before.” rap for should dis statement Aug. jury that Denied record. expunged legarded and necessity, have must judge, trial matters with such dealing a discretion pro probably during the arise will in this not find case do a trial. We gress of a mistrial con to declare failure we, discretion, though an abuse stituted adopted stern more ourselves, might have rebuke.
measures defend- carefully considered these of error and assignments other
ants’ for reversal.
present no cause affirmed.
Judgment (concurring Judge Chief part). dissenting part opinion judg- and I concur appellant Norene toas of affirmance ment appellant it as from dissent
Aeby. I Aeby. direct, record, all of read IAs circumstantial, tendency every