GRAHAM v. UNITED STATES. LEWIS v. SAME (two cases). O‘FALLON v. SAME
Nos. 7339, 7276-7279
Circuit Court of Appeals, Eighth Circuit
October 30, 1926
Rehearing denied in O‘Fallon v. United States, January 29, 1927.
15 F.2d 740
Before STONE and LEWIS, Circuit Judges, and SYMES, District Judge.
Whether the employer referred to in
[1] The act is elective, but the right of election does not rest alone with the employer. The employee also has an option, and his voluntary acceptance, as well as the employer‘s, must be approved by the Board of Awards. Connole v. N. & W. R. Co. (D. C.) 216 F. 823; Gilder v. Industrial Commission, 100 Ohio St. 500, 127 N. E. 595. Thus there is a discretion in the employee and the board. The only allegations in the petition referring to the act were those stricken. They did not show that defendant had failed or refused to accept the act as to its employees engaged exclusively in intrastate service; indeed, they showed nothing as to why the parties were not operating under the act as to the work that plaintiff was dоing. In the absence of definite averments fixing the responsibility on the defendant for this legal status of the parties, it ought not to be held that the act as to its penalty of forbidden defenses applies, for that penalty is not, in our opinion, arbitrarily extended to every employer who, subject to the option of his employees and the Board оf Awards, may participate in the fund and become subject, as to certain phases of his work, to the act, but who for some reason not shown has not done so.
[2] What, then, is the effect of the petition? Measured by the standards required of one engaged in intrastate service—an assumption, rather than an alleged fact or inference from the averments of the petition—we find that there are state statutes generally determining the bases of liability for injuries arising out of the relation of employer and employee. Sections 6243, 6244, 6245, 9015, and 9017. The remedies provided by these statutes have been held to be cumulative. Erie R. Co. v. Connors (6 C. C. A.) 261 F. 303. The employer is not deprived of his common-law defenses in any of them where the injury results from the use of a simple tool. In McGill v. C. & S. W. T. Co., 79 Ohio St. 203, 86 N. E. 989, 19 L. R. A. (N. S.) 793, 128 Am. St. Rep. 705, it was held that a stepladder was a simple tool. A wrench is quite as simple and as easily understood. The plaintiff, therefore, under well-settled rules, both state and federal, not only assumed the risks arising from the nature of this simple tool, but he also assumed such risks as were incurred from the character of its use. He was familiar with the tool. There is no averment of defect or promise to furnish another. He alleges that he regarded the wrench as dangerous, and asked for another implement, but his request was refused. Under these averments it is clear that he assumed the risk of its continued use. Railroad Co. v. Williams, 254 U. S. 43, 41 S. Ct. 36, 65 L. Ed. 120; Railway v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.
Judgment affirmed.
- Searches and seizures ⇒ 7—Defendant held not entitled to complain of search made of father‘s farm and shack occupied by father apart from defendant.
Defendant held not entitled to complain of search made of farm belonging to and under control of his father, in course of which narcotics to which defendant made no claim were found in shack occupied by his father, separate and apart from that occupied by defendant.
- Searches and seizures ⇒ 7.
Guaranty of
Const. Amend. 4 , against unreasonable search or seizure, is a personal rightor privilege, available only to owner or claimant of property subject to unreasonable search or seizure. - Conspiracy ⇒ 23.
Conspiracy is a distinct offense from crime which may be its object.
- Conspiracy ⇒ 24.
To sustain conviction for conspiracy to violate a federal statute, a combination or understanding, tacit or otherwise, must be shown.
- Conspiracy ⇒ 47.
Evidence held insufficient to sustain conviction of several defendants for conspiracy to violate Harrison Narcotic Act (
Comp. St. §§ 6287g-6287q ). - Criminal law ⇒ 780(1)—Failure to instruct that confession after arrest of certain defendants charged with conspiracy was not evidеnce against the others held error (Harrison Narcotic Act [
Comp. St. §§ 6287g-6287q ]).In prosecution of several defendants for conspiracy to violate Harrison Narcotic Act (
Comp. St. §§ 6287g-6287q ), failure to instruct that written confessions of two defendants, made after a night in jail and not in the presence of the other defendants, nor acquiesced in by them, were not evidеnce against such other defendants, held error. - Criminal law ⇒ 407(2).
Declarations of one defendant in the presence of another, under circumstances warranting inference that he would have contradicted them, if he did not assent to their truth, are admissible.
- Criminal law ⇒ 424(1).
Generally arrest of co-conspirators precludes any further concerted action, and puts an end to conspiracy, as affects admissibility of acts or declarations of codefendants.
- Poisons ⇒ 9.
Evidence held to sustain conviction of unlawful possession of narcotics.
- Criminal law ⇒ 511(1).
Accomplices’ testimony alone held sufficient to sustain conviction for unlawful possession of narcotics.
- Criminal law ⇒ 564(1).
Proof of venue held insufficient to sustain cоnviction in Northern district of Oklahoma for purchase of narcotics in Kansas City, Mo.
In Error to the District Court of the United States for the Northern District of Oklahoma; Frank E. Kennamer, Judge.
Jimmie Graham, Seth M. Lewis, Daman Lewis, John O‘Fallon, and Roy O‘Fallon were convicted of conspiracy to violate the Harrison Narcotic Act, of the unlawful possession of mоrphine without having registered and paid special tax, and of the unlawful purchase of morphine, and they separately bring error. Convictions of all defendants on charge of conspiracy and on charge of unlawful purchase reversed, and conviction of defendant Daman Lewis on charge of unlawful possession also revеrsed; conviction of other defendants on such charge affirmed.
Neal E. McNeill, of Tulsa, Okl. (John W. Tillman, Fred A. Tillman, and Welcome D. Pierson, all of Pawhuska, Okl., on the brief), for plaintiffs in error.
John M. Goldesberry, U. S. Atty., of Tulsa, Okl. (W. L. Coffey, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.
SYMES, District Judge. The first count of the indictment in this case charges that the plaintiffs in error, defendants below, Jimmie Grahаm, Seth M. Lewis, Daman Lewis, John O‘Fallon, and Roy O‘Fallon, together with one Jesse Merritt and Audine Merritt, unlawfully conspired and combined to violate the Harrison Narcotic Act (
Briefly, the evidence discloses that during 1923-1924, the defendant John O‘Fallon was the owner of a drug store at the small town of De Noya, in Osage county, Okl., and the defendant Daman Lewis for part of the time was interested with him. The town site of De Noya had been owned and platted by the defendant Seth Lewis. He later erected and operated the “Lewis Hotel,” where he resided. The defendant Daman Lewis had been acquainted with both the O‘Fallons in Montana,
In No. 7339, Jimmie Graham plaintiff in error, the only point seriously pressed, as stated by counsel, is the validity of a search warrant. In the course of the investigation, thе government officers obtained a warrant from a justice of the peace, and searched the Graham ranch. A quantity of morphine and cocaine was found, and young Graham arrested. Thereafter a motion was filed to quash the indictment, and exclude the testimony of these officers, on the ground that the warrant was void. The motion was sеparately heard, testimony taken, and the motion denied.
[1, 2] If Graham was in a position to urge the objections made to this search warrant, we might be compelled to sustain them. They cannot, however, be availed of by this defendant. The buildings searched belonged to, and were under the control of, his father. The narcotics seized were not in young Graham‘s possession, and at no time has he made any claim thereto. They were hidden in a shack occupied by the father, separate and apart from that occupied by the son. The guaranty of the
[3, 4] At the end of the trial the question of the sufficiency of the evidence on the conspiracy count was properly raised. The proof discloses a series of isolated transactions, and is circumstantial as to all the defendants tried. Conspiracy is a distinct offense from the crime which may be the object of the conspiracy. U. S. v. Rabinowich, 238 U. S. 78, 85, 35 S. Ct. 682, 59 L. Ed. 1211. There must be shown to be a combination or understanding, tacit or otherwise, to violate a federal statute. U. S. v. Kissel, 218 U. S. 601, 607, 608, 31 S. Ct. 124, 54 L. Ed. 1168. There is some proof here that one or more of the defendants were guilty of what might be termed overt acts, but nоne that any two or more of them conspired or combined to commit these isolated acts, or that they were committed in furtherance of any criminal scheme.
[5] The government, to support this count, admittedly relied in a great measure upon the written confessions of the defendants Jimmie Graham and Roy O‘Fallon, made at the time of their аrrest. Eliminating these, for the reasons hereafter stated, the conspiracy count fails for lack of proof.
[6] The confessions referred to were made by Jimmie Graham and Roy O‘Fallon on the day following their arrest, after they had been in jail all night, and not in the presence of the other defendants. So they cannot be said to have acquiesced therein. The court did not at any stage of the proceedings instruct the jury that they constituted evidence only against the defendants making them. In this we think it erred. In Morrow v. U. S., 11 F.(2d) 256, this court said:
“It is also true, as claimed by the government that the act of one conspirator in the prosecution of the enterprise and carrying out the purpose thereof is evidence against all of the conspirators and is considered the act of all, and is admissible against the other conspirators; yet such act must be, as the Supreme Court says in Brown v. United States, 150 U. S. 93, 98, 14 S. Ct. 37, 39 (37 L. Ed. 1010), ‘done and made while the conspiracy is pending, and in furtherance of its object.’ Admissions or acts of a conspirator after the conspiracy has terminаted are not admissible against a former conspirator, nor are acts of a person committed prior to the formation of a conspiracy admissible against his subsequent co-conspirator. The rule as to declarations or acts of one conspirator is that they are admissible as against a co-conspirator, if оccurring during the pendency of the conspiracy and in furtherance of its object.”
In Wiborg v. U. S., 163 U. S. 632, 657, 16 S. Ct. 1127, 1137 (41 L. Ed. 289), the Supreme Court said: “The declarations must be made in furtherance of the common object, or must constitute a part of the res gestae of acts done in such furtherance.”
Justice Harlan, in Sparf v. U. S., 156 U. S. 51, 15 S. Ct. 273, 39 L. Ed. 343, in discussing this question, says that where it is charged that the criminal act was the result оf a conspiracy, or the joint act of two or more defendants, the rule is well settled that “after the conspiracy has come to an end, and whether by success or by failure, the admissions of one conspirator by way of narrative of past facts are not admissible in evidence against the others.”
[8] As a general rule the arrest of co-conspirators may be said to effectively preclude any further concerted action, and ordinarily puts an end to the conspiracy. Hauger v. U. S., 173 F. 54, 97 C. C. A. 372; Sorenson v. U. S., 168 F. 785, 94 C. C. A. 181.
Second Count.
[9] The evidence on this count varies as to the different defendants, but is sufficient to make an issue for the jury, except as to Daman Lewis, and it tends to show that the other defеndants had a joint or common interest in the secreted drugs. Jimmie Graham is clearly guilty on his own confession, corroborated as it is in its essential details by other witnesses.
Seth Lewis seems to have been the head of the gang, was proprietor of the hotel, and, according to Audine Merritt, supplied her with drugs, which she sold, accounting to him for the procеeds. She says he made arrangements by which she obtained narcotics. Myrtle Neal also testified that she rode with Lewis in an automobile, and that in the course of a conversation he told her where she could get “stuff” whenever she wanted to buy any.
Roy O‘Fallon, in his confession, attempts to incriminate the other defendants rather than himself. It, however, shоws guilty knowledge on his part, and there is testimony that he supplied both Myrtle Neal and Audine Merritt with drugs. One of them says she paid him over $300 out of her profits.
[10] The conviction of John O‘Fallon should stand, if we follow Waldeck v. U. S. (C. C. A.) 2 F.(2d) 243, and Webb v. U. S., 8 F.(2d) 145 (C. C. A. 8th Cir.), sustaining convictions on the evidence of accomplices alone. In addition, he was part owner of the drug store where, according to the addicts, they bought their supply. One of them testified that on several occasions she obtained drugs from him under an arrangement by which she was to use what she wanted and sell the balance. This she did, and gave him $300 out of the proceeds.
The conviction of Daman Lewis on this count should be reversed, being wholly unsupported by any evidence.
Third Count.
[11] The weight and sufficienсy of the evidence on the third count likewise varies in each case. We are not, however, required to pass upon it, as the record is wholly lacking in any proof of venue. It seems to be the claim of the government that the narcotics were purchased at Kansas City, Mo., if anywhere. It is conceded that there is no evidence оf actual purchases by the defendants within the jurisdiction of the trial court. The convictions on this count must therefore be reversed, on the authority of Brightman v. U. S. (C. C. A.) 7 F.(2d) 532, and Cain v. U. S. (C. C. A.) 12 F.(2d) 580.
To sum up: We are of the opinion that the convictions on the first and third counts should be reversed as to all the defendants; that the convictions on the second (or possession) count should be sustained as to all the defendants except Daman Lewis. As to him it should be reversed.
And it is so ordered.
STONE, Circuit Judge. I concur in the above opinion and result. Concurrence in the opinion and result as to the third count of the indictment is based on the particular facts of this case, in which the government claimed the actual purchase to be outside the district where the indictment was had.