Amezaga v. United States

296 F. 915 | 5th Cir. | 1924

WALKER, Circuit Judge.

One of the counts of the indictment in this case charged a violation of the Anti-Narcotic Act (Comp. St. §§ 6287g-6287q) by the plaintiffs in error (herein called defendants), having in their possession a stated number of unstamped packages of a described derivative of opium. In the course of the testimony of a witness for the prosecution as to certain tablets found in defendant’s place of business, the witness, over the objection duly made, was permitted to testify that one Hudson, a drug addict, who was not examined as a witness, after biting one of the tablets, stated in the presence of one of the defendants that they were morphine tablets. There was no testimony tending to prove that the defendant who was present acquiesced in the statement of Hudson which was so deposed to. On the contrary, the witness on his cross-examination stated that such defendant denied that statements made by Hudson were true. In the absence of any evidence tending to prove that the defendant who was present acquiesced in the truth of such statement made by Hudson, testimony as to the making of that statement was inadmissible, and the objection to such testimony on the ground that it was hearsay should have been sustained. 2 Jones, Commentaries on Evidence, § 289.

Because of the error mentioned, the judgment is reversed, and the cause is remanded, with direction that a new trial be granted.

Reversed.