*1
death,”
contemplation
“in
estate,
be included
should
nor
property included in the transfer
should
estate of the decedent?
taxable
taxable;
be returned as
not.
otherwise
been
property which had
Whether
There was
evidence directed
voluminous
gift with-
by the
decedent as
transferred
question, including
to this
years
be includ-
in two
of his death should
numerous witnesses. The ‘Board found
gross
ed in his
taxable estate?
taxpayer.
with the
agree with this
We
needed
fact statements
but,
finding,
even if we
dif-
had reached a
are,
ruling
questions
as to
raised
conclusion,
jus-
ferent
there would be no
13,
first,
died March
the decedent
accept
tification for our refusal to
the find-
1926,
outstanding and
policy
with such a
made,
ample
as there was
evidence to
designation
force and that
support it. Counsel
Commissioner
beneficiary
by the in
was not revocable
recognize the rule thus invoked but
seek
ben
jointly
sured either
with the
alone or
escape
application by
its
what is in effect
eficiary.
The Commissioner concedes
distinguishing
finding
between the
of evi->
point
of law raised
been ruled
has
dentiary facts
find-
ultimate fact
etc.,
Pennsylvania Co.,
this court.
v. Com
ing to be
There
such
deduced therefrom.
is
(C.C.A.)
F.(2d) 295.
In ad
missioner
a distinction. What we have called evi-
dition
to this a certiorari was denied
dentiary facts
be
tes-
are to
found from the
Supreme
Helvering
Pennsylva
Court.
timony and other evidence. Ultimate facts
Co., etc.,
nia
are reasoned conclusions drawn from
*Rehearing denied *2 seq.), count, m one for violating Harrison (38 Narcotic 785), Act Stat. amended, in the second count. appealed judgment from the after con- *3 viction on both counts. 18, 1935, On December Rob- Chang ert policemen was accosted Hilo of county, Hawaii and was told that wished look room. The officers accompanied were investigator a federal with the Hilo, alcohol tax unit Hawaii. Without a warrant the room was entered and searched. On a table officers found package containing opium, twelve tins of and package similar containing twelve tins opium of in a suitcase. There a dis- pute in the evidence as to whether or not entry permis- the officers was sive. Thereafter brought appel- officers lant Mrs. Ah Chang, Fook the mother of Chang, Robert to the room where two opium of boxes were shown to her. Both defendants were taken sta- tion and booked investigation, for and thereafter held there. The mother took an infant child with her. On the follow- day ing a federal narcotic officer arrived by aeroplane. Appellants question- were ed beginning p. 3at o’clock m. until the hour, again dinner beginning and at 7 o’- p. clock taken, m. Statements were one of signed by which was the son about 10 o’- night clock that and other signed was 12midnight by about morning appellants the mother. The next charged were with vio- of lations the narcotic laws. Appellants were indicted January on 24, 1936, January On the son suppress opium moved to seized on the ground that the officers had no search legal warrant or other authority to make ' Appellee’s the search. answer to this motion was that the had voluntarily Botts, Honolulu, H., T. E. for J. consented to Hearing the search. was had appellants. January upon appellant’s mo- Stainback, Ingram Atty., M. U. S. and suppress. tion The officers Moore, Atty., Willson C. Asst. U. S. both testimony, their counsel for ques- Honolulu, H., McPike, H. T. and H. tioned the officers in an effort to show that McWilliams, Atty., U. S. and Robert L. the latter “shadowed their [appellants’] Francisco, Atty., Asst. U. S. both San movements, words, other from 5 o’clock Cal., appellee. o’clock, then, 'to 7 and at moment they suspicious, WILBUR, thought approached GARRECHT, Robert Before permission HANEY, Chang and demanded of him Judges. Circuit Objections search of room.” to this line HANEY, questioning Judge. sustained. On Febru- 10, 1936, ary the motion was denied. Appellants were indicted for violat- Import Drugs, Export 14, 1936, the Narcotic February the mother filed Act, (21 amended suppress a motion to U.S.C.A. et the statement § .808 jury, it was not vol- matter submitted for its ground, her on verdict, noon, appellee approximately unta'rily 12 o’clock The answer made. February 19th, freely volun- the statement that a little after that tarily mo- S Hearing held on the o’clock still 'the deliberating made. which on February pre- after foreman came chambers day At Judge, Huber, motion .was denied. siding the same Honorable C. S. narcotic of- hearing, the federal while of affiant C. and-Willson testifying, Moore, for the mother ficer was Assistant United States District produced. Attorney, prosecution, demanded conducting refused. The demand was formed the wished to be advised de- if the confession of one on Feb- commenced *4 Trial in fendant the as case could considered interposed Appellants ob- rüary against other; evidence that the affiant happen- jections the narration of what to requested the court to inform the foreman 'room, ground that on the ed in the son’s only that confession in the case was evi- illegal transpired search an what there was it, against party making dence standing the notwith- the During state- the trial and seizure. that a codefendant was evidence, in to ment of the son was offered made; when the confession was objected on the appellants offer which ground judge exception the over defendants’ ad- voluntarily made. that was it hered to the given jury the Thereup- objections were overruled. Both on trial, viz., in course the that con- of the to appellants instruct asked the fession made one defendant this case was riot evi- jury that jury be- could considered as evi- in- against The court the mother. dence other; against dence thereupon that jury that, time that if the structed foreman retired and a few later moments presence and made in the was statement room, returned to the court (there being mother evi- hearing of the defendants; against verdict both mother that the state- dence that the 'said reporter pres- neither clerk nor court was was true), then it evidence ment was against during ent proceedings above recount- also. the mother ed in the judge’s chambers.” of the mother was then The statement The trial “that evidence, certified tlie facts objected to on the offered foregoing forth in set affidavit are ground that was made under coercion true and correct.” voluntarily. objection was Thereupon appellants asked overruled. sup hearing motion At to jury that state- court to instruct the press seized, appellants of the narcotics against used the son. ment could not be prove fered to that the had sha officers refused, saying: request was appellants’ dowed prior movements for two hours appearing that this statement was “It search, to the and that officers Chang the of Robert reasonably had information which led them given.-” The will not be tins of appellant Chang to believe Robert opium in evi- were offered and admitted opium Appellants in his room. secreted objections appellants. dence over officers should ob contend The defendants then offered evi- warrant, tained a concede search mother dence the rights in that re that their constitutional sup- motion hearing on the taken at Appellee gard may be waived. does not press The offer was the mother’s statement. made as an in contend that the search was Appellants thereupon their denied. rested Papani cident arrest United [see case. 162], but 84 Exception Chang an Robert taken to instruction does contend that was permission given his to the search failed define the word had because it fact, “voluntary.” Appellants requested the In the officers. that was before court on the motion. The give instructions which were issue court to ten that the officers have had Robert fact Chang refused. prior to time under surveillance After submission of the' cause permission has no was obtained jury, proceedings were had as shown issue believe the court the properly of consent. We attorney appellants’ as fol-
an affidavit
proffered
evidence.
refused
:
lows
attorney
he
question
“That
is the
for-the defend-
con
whether
Chang
named;
given voluntarily, Robert
ants
above entitled sent was
above
presum
A
confession is
confessions.
because
testified
consent
voluntary.
ed to
Wilson
bodily
fed-
afraid
harm.
he
States, 162
of-
U.S.
investigator and one of the
eral
1090; Murphy
(C.C.
purely L.Ed.
testified that the consent
ficers
A.7)
808. At
trial
there
by Rob-
voluntary.
In
statement
confessions
was no evidence
that the
Chang
admitted
consent
ert
he
voluntarily made,
since
voluntary.
evidence
We believe
there was no such
search,
introduced
Thus
voluntary
none.
shows
consen.t
decide. The in
for the
suppress was
the motion to
therefore
properly refused. Mitch
denied,
structions were
properly
properly
and the narcotics
Insurance
ell v.
Potomac
on trial.
admitted
22, 46
see Car
sup
hearing
At the
motion
Carusi,
ter v.
press
mother, her
the statement of the
appellee produce the
asked that
request
inspection,
which
court was
to in
The trial
refused,
“The
saying:
the court
struct
of one
that the confession
the state
concerned with
what’s in
against
could not be
used
*5
ment,
We be
but how it was obtained.”
appellants were in the
the other. Both
Appellants
ruling
lieve that
to be correct.
made.
room when each confession was
hearing.
The
were not
tried on this
to
the statement read
the
heard
the
sole issue therein
whether
state
mother before she
it. Under such
voluntarily
2
ment
made. See Whar
instruction was
circumstances
(11th Ed.) 1354.
ton’s Crim.Evid.
incorrect. 2 Wharton’s Criminal Evidence
(11th Ed.) 1216.
hearing
The evidence
the latter
respect
statement,
brings
ques-
us to the more
This
serious
to the mother’s
juror
tion
regarding
instruction
somewhat
in
mother and
conflict. The
under the
in
circumstances shown
son both testified
affi-
statement
compulsion.
davit.
under
made
threats and
police, a
inspector
the other hand
of
an
Appellee
excep
contends that
captain
and a federal narcotic tion
says
is insufficient. The affidavit
contrary.
agent all testified to the
Since
judge
exception
“the
over defendants’
ad
credibility
an im
of the witnesses is
hered
instruction
the jury
in
evidence,
portant element in weighing the
exception
the course of
trial.” The
judgment
we believe the
court’s
there
trial
ground
that the in
on must he sustained. We therefore hold
erroneous,
ground
on the
denying
the mo
that there
no error in
the court’s action was
For
erroneous.
by
suppress
made
this
irregularity,
reason and because of the
mother,
in
in
the same
admitting
exception
we consider the
sufficient. See
evidence on the trial.
Louis,
Aerheart v.
Ry.
St.
I. M. & S.
Co.
The statement made
the son was
907, 909,
(C.C.A.8) 99 F.
under
the same
as that
circumstances
We
the action of
believe
the trial court
mother. We
it
therefore hold was
grounds.
was reversible error on two
properly
also
admitted in
at the
evidence
The first is that
trial.
personally present
entitled
every
to. be
at
We
no
likewise believe
er
there was
stage
Fessenden,
of the trial.
v.
Ponzi
258
refusing
ror in
the offer in
at the
evidence
254, 260,
309, 310,
42 S.Ct.
U.S.
66 L.Ed.
trial of the mother’s
at
taken
879;
607, 22 A.L.R.
Shields v. United
hearing on
suppress
the motion
state
States,
583, 588,
273
478,
47 S.Ct.
trial,
She was
ment.
at the
479,
been in the this instruction, peated correctly it presence, judge’s for place in their have taken prejudicial. If he ap error would not be place chambers. judge’s took prejudici not, been did the error have pellants absented themselves .the presume prejudicial. Lit must voluntarily, would al. We courtroom supra. 10), (C.C.A. proceeding in tle v. United States thus consented second place. courtroom, other an some received for States, hand, judge. Chances 273 U.S. Cf. Shields Presuming the error great. L.Ed. 787. error are too 71 Fillippon v. prejudicial, rule ground is be of reversal The second appli Co., supra, Albion Vein Slate court cause of the communication requires cable and reversal. for the jury. It is error Reversed and trial. remanded a new communicate with instruct or without notice counsel and absence WILBUR, Judge (dissenting). Vein Slate Fillippon Albion to them. agree er- committed 853; 435, 63 L.Ed. 250 U.S. sending ror a communication to Shields v. deliberating response jury while it was 787; Philadelphia & to a submitted to the the. F. Ry. (C.C.A.2) 247 v. Skerman R. Co. first in chambers. At the foreman (C.C.A.2) 269; Dodge v. United my agree with as- blush I was inclined to (C.C. Outlaw v. United reversal, justified error sociates 805; Sandusky Cement Co. A.5) cited authorities an examination A. Hamilton & Co. R. *6 opinion, bearing majority others 609; Peppers States v. United F. upon question, me that convinced has 346; (C. United Little v. not the error was circumstances under the An (2d) 84 A.L.R. C.A.10) F. prejudicial. notation. no assignment There is of error however, error, is revers Not all upon informally the fact that the court affirm If the record ible shows error. jury through structed the a communica- prejudic atively that by tion made him to the foreman. There is Fillippon ed, is reversible error. there specification point. no of error that Co., supra. On the oth Slate Vein Albion my opinion In defendant’s counsel did affirmatively hand, if the record shows er not to the manner in which the court prejudiced, appellant was then not that conveyed jury to the instruction re- require Phila error does not reversal. sponse request foreman, of the but Ry. (C.C.A.2), delphia & R. Co. v. Skerman only excepted to the substance the in- (C.C.A.2), supra; Dodge v. United States request and to the denial of (C.C.A.5), supra; v. United Outlaw jury through court instruct Sandusky A. supra; Cement v. R. Ham Co. the foreman that not confession could supra; Peppers v. (C.C.A.6), ilton & Co. against be as evidence used the codefend- supra. Finally if (C.C.A.6), United States will be far object- ant. It noted that from error, but doés dis the record shows not ing to the method of instruction the attor- prejudicial the error is close whether ney expressly requested for the defendants prejudicial, presum not it is is whether it given instruction should that an b.e require prejudicial ed to and to reversal. If manner. there was error in communi- supra. (C.C.A.10), Little v. United States jury cating in the indi- manner cated, it was invited the defendants who instant is not one case .where oppo- that an instruction to the jury directly was instructed whole site effect be thus communicated to the By orally, writing. either or in court jury. juror instructing one to instruct the rest is true in a criminal case an It jury, was in fact instruction considered, error unassigned jury appel given in the absence of here which lants, court, there were no circumstances their counsel out justified consideration. The court such juror relaying the instruction would neces jury merely to tell the sarily told foreman so room. have done in the already during them told required. he theory reversal what Shields trial, namely, Further, States, confes- have course of supra. we presence of the sion of defendant no one knows what one where case A.) in determin- other could be considered F. 213. The corroboration of the defendant. guilt (Robert of the other Chang) conveyed complete. infor- correctly the foreman It is so with reference to the merely he jury, balance of mation to the mother. had al- what the reminded them of sent ready If he told them. whether or find out from the used, there are be so confession could answers, “No.” The possible “Yes” or two the one the court answer no There is the defendants. unfavorable to jury were told suspect that the reason to INLAND POWER & LIGHT CO. v. the evidence could foreman that GRIEGER et al.* rendered, verdict, promptly Their be used. No. 8130. such told that were indicates that Appeals, The method Ninth Circuit. be used. evidence could July conveying the court’s repeti- merely a erroneous, already the er- of the instruction connec- In this quite harmless. ror was tion, be noticed it should defend- chambers and therefore bail were out ants voluntarily absent courtroom. harmlessness of With reference error, merely num call attention problem dealing with that decisions ber of ex the view have sustain which tend to
pressed
Peppers
:
v. United
37 F.
(2d)
(C.C.A.6); Dodge
*7
(C.C.A.)
Hagen
v. Unit
(C.C.A.9)
merely at the time her son remained silent This at confessed. most would amount part an admission confession on her little, any, weight
would have if it mere as ly would amount to a second confession
and would not be a corroboration of the meaning first within the requiring a rule confession to be corro
borated. The of a lack of cor appellant. roboration not raised jury were not instructed on the sub ject and no was asked with re corroboration, lation thereto. See (2d) Pearlman v. United 10 F. (C.C.A.9), citing, Mangum (C.C. v. U. S.
*Rehearing Sept. 24, denied