297 F. 452 | 8th Cir. | 1924
The defendant below, Dennis Camp, was indicted, tried, convicted, and sentenced for selling on January 7, 1922, in the Eastern district of Oklahoma, to one Arthur Valley, morphine sulphate, a salt, derivative, and preparation of opium and coca leaves, in violation of the Harrison Anti-Narcotic Act (U. S. Compiled Statutes, §§ 6287g-6287q).
Counsel for the defendant below assigned as error and here complains of the denial by the District Court of his motion, made at the trial after the jury box had been filled with 12 jurors, "to quash the entire panel and discharge the same,” because some of the jurors in the box had heard the testimony of Josie Drake in the trial of the case of United States v. Harvey Wyncop, who was charged with and convicted of a violation of the Harrison Anti-Narcotic Act on her testimony, and had also heard the statement of Wyncop during his trial that he could not deny the statements to which she had testified, and that she had testified to the truth, and because the only testimony or evidence the United States had or would or subsequently did offer to prove the offense charged against the defendant was the testimony of this identical Jorie Drake. Some of the jurors had not heard her testimony or the admission of Wyncop in the trial of his case. Those who heard it said they had no opinion as to the guilt or innocence of the defendant Camp. None of the 12 jurors-in Camp's case was a member of the. jury in Wyncop's case. While each of these cases involved an alleged violation of the Harrison Anti-Narcotic Act, they related to separate, distinct, and unrelated transactions, at different times by different and unrelated parties.
Among other authorities cited by counsel for the defendant in support of bis position, he seems to place chief reliance upon, and we have read the opinions of the courts in, Priestly v. State, 19 Ariz. 371, 171 Pac. 137, 138, 139, 3 A. L. R. 1201, State v. Hammon, 84 Kan. 137, 140, 142, 113 Pac. 418, Temple v. State, 15 Okl. Cr. 176, 175 Pac. 733, 735, and United States v. Wilson, 28 Fed. Cas. 699, 702, No. 16,730. In these cases however we discovered that some of the jurors who tried the respective defendants had been on the respective juries and charged with the duty and responsibility of determining the truth or falsity of the testimony of the same principal witnesses in preceding cases, as well as in those against the respective defendants, and the other facts and circumstances in the cases cited by counsel for defendant differ so radically from those of the case in hand as to deprive the decisions in them of either authoritative or persuasive force in the instant case. In this case the motion was to
The legal presumption would have been upon the call of Josie Drake in this case that she would testify to the truth if she had never testified in Wyncop’s case. The fact that she had testified in that case, and the fact that Wyncop had admitted that she told the truth, did not change the presumption, disqualify her as a witness in the defendant’s case, nor did the fact that a juror in the latter case, who had not served as such in the former case, had heard her testimony and Wyncop’s admission of its truth in his case, disqualify him from hearing and adjudging the truth or falsity of her testimony in the case of this defendant. There was no error in the denial of the defendant’s motion. Wilkes v. United States (C. C. A.) 291 Fed. 988, 989; Wolf v. United States (C. C. A.) 292 Fed. 673, 677, 678; State v. Williams, 31 S. C. 238, 9 S. E. 853, 860, 861.
The only other assignment of error urged reads:
“Because the court erred in admitting in evidence, over the objection of defendant, certain incompetent, irrelevant, and immaterial testimony which was prejudicial to the rights of this defendant.”
This assignment is untenable, because it does not “quote the full substance of the evidence admitted,” as required by rule 11 of this court (Lincoln Sav. Bank & Safe-Deposit Co. v. Allen, 82 Fed. 148, 149, 27 C. C. A. 87), and because the evidence to which counsel claim it refers was withdrawn from the jury by the court before it submitted the case to them for decision. ' •
Let the judgment below be affirmed.
