206 F.2d 296 | 5th Cir. | 1953
Lead Opinion
Appellants, Aubrey Aeby and Norene Aeby, are husband and wife and prosecute this appeal from their conviction of the offenses of, (1) knowingly receiving and concealing 191 grains of heroin which had been illegally imported into the United States, the defendants well knowing of such unlawful importation,
By errors specified and here insisted upon, the appellants bring into review the sufficiency of the indictment, the sufficiency of the evidence to support the convictions, the adequacy of the instructions of the court to the jury, allegedly prejudicial statements and questions of the United States Attorney during the progress of the trial, and failure of the court to declare a mistrial because of prejudicial statements of a government witness when testifying, as well as objections to the admission of evidence by a witness who, it is claimed, was not properly qualified as an expert.
We find the indictment sufficient to withstand the attacks against it. The first count is attacked because it does not charge that there was a fraudulent “receiving and concealing” of the illegal heroin. This count does charge that the defendants did “knowingly” receive and conceal the heroin, knowing the same to have been unlawfully imported. The statute (21 U.S.C.A. § 174) seeks to punish one wto fraudulently or knowingly imports the liar
We find in the evidence in the record sufficient basis in facts and circumstances to support the verdicts of guilty returned by the jury. Neither defendant exercised the privilege of becoming a witness. The evidence for the government, thus uncontradicted, presented a case where, after the residence of defendants had been under observation for some thirty days, on the early morning of the date of arrest, after the defendant husband had been seen to leave the home at about 4:30 in the morning to go to work, a detective observer and two others, all members of the Dallas, Texas detective force, acting with a search warrant, entered the home of the defendants and found the wife, Norene Aeby, asleep in bed. No person approached the house between the time the husband left and the time of the officers’ entry into the house. So the jury could find that the articles and conditions discovered in the house existed at the time of the husband’s departure and were known by him. Upon awakening and arresting Norene Aeby, it was found that there was pinned to her gown a rubber finger stall containing 191 grains of substance testified to be heroin. Throughout the house the officers found gelatin capsules, cellophane bags, rubber finger stalls, hypodermic needles, rubber gloves with some of the fingers removed, delicate scales, and spoons. The scales, spoons, finger stalls and hypodermic needles had traces of heroin on them. Some of these articles were on tables in the kitchen, visible in the bathroom, and the scales were in the kitchen cabinet. So far as appears the husband and wife were the only occupants of the house. We think it clear from the evidence that the situation was such that the number and location of the paraphernalia and articles and the unusual nature of the articles, as well as the evidence of rubber gloves with fingers severed, was such as to justify a conclusion that more was involved than an unfortunate case of a wife who was an addict which the husband might tolerate, and to justify a conclusion by the jury, if they were so convinced, that the husband of the household participated in the receipt and concealment of the large quantity of heroin found in the actual possession of the wife in the home, as well as in its purchase not from the original package. In other words, that such heroin was also in his possession, and thus raise prima facie evidence of violation of the statute charged.
Our statement that the jury was authorized to find that the substance in the finger stall on the person of Norene Aeby and traces of which were found on the other articles referred to was heroin evidences our rejection of the contention of the defendants, urged after conviction, that there was no legal proof that the substance was heroin because of the failure of the evi
In view of the nature and elements of the offenses and the manner in which these were charged in the indictment, we perceive no necessity for the court stating to the jury the terms of the statute under which the prosecution was proceeding. Indeed, in a case like the present the substantial question is whether the defendant is shown to have, or have had, possession of the narcotic drug, for such possession is deemed sufficient evidence to authorize conviction, unless the defendant explains the possession to the satisfaction of the jury,
We do not condone the query of the government’s attorney in propounding the question to the defense witness as to his knowledge of Aubrey Aeby’s reputation, nor to his interjecting the objection to testimony by another witness if the defendant was “not going into his reputation,” nor the objection by government’s counsel to testimony on behalf of the defendants which could be construed as a comment upon the defendant Norene Aeby’s failure to take the stand as a witness. However, no testimony in response to the question or statements was given and the court sustained the objection to the question and cautioned the jury to disregard the suggestions and objection of the district attorney. Under the circumstances here, we do not think there was any sufficient cause to grant the defendants’ motion for a mistrial. The same is true as to the overruling of a motion for mistrial based upon the prejudicial statement of the government’s witness that he knew the defendant “had let women take the rap for him before.” The Court told the jury that this statement should be dislegarded and expunged from the record. The trial judge, of a necessity, must have a discretion in dealing with such matters which will probably arise during the progress of a trial. We do not find in this case that the failure to declare a mistrial constituted an abuse of discretion, though we, ourselves, might have adopted more stern measures of rebuke.
We have carefully considered defendants’ other assignments of error and these present no cause for reversal.
Judgment affirmed.
. Section. 174. Title 21 U.S.C.A.
. Section 2553(a), Title 26 U.S.C.A.
. Section 174, Title 21 U.S.C.A. supra.
Concurrence in Part
(concurring in part and dissenting in part).
I concur in the opinion and in the judgment of affirmance as to appellant Norene Aeby. I dissent from it as to appellant Aubrey Aeby.
As I read the record, all of the direct, and every tendency of the circumstantial, evidence points conclusively to Norene’s guilt. Not a syllable of the direct, and not a single shred of the circumstantial, evidence points to Aubrey’s.
Where, as here, a conviction calls for an automatic twenty year sentence, courts should at least be certain that the conviction rests on evidence and not on mere conjecture. Believing that the judgment should be reversed as to appellant Aubrey Aeby for want of evidence to sustain the conviction, I respectfully dissent from its affirmance as to him.
Rehearing denied; HUTCHESON, Chief Judge, concurs in part and dissents in part.