293 F. 689 | 4th Cir. | 1923
The writ of error in this case was sued out by the plaintiff in error, the defendant in the court below, and hereinafter so referred to, to reverse the judgment of the Maryland court, rendered on the 14th day of March, 1923, approving the verdict of the jury, and imposing a fine of $250 and costs against the defendant, and imprisoning him for nine months in the city jail at Baltimore.
The government’s case briefly is that, on the night of the 29th of January, 1923, about 11 o’clock, while Parker and Harmon, two prohibition officers, were patrolling the streets of the city of Baltimore in their automobile, in the effort to discover and apprehend persons engaged in the transportation of intoxicating liquors in violation of the National Prohibition Act, and having under surveillance a certain warehouse on Homewood avenue, known and believed to be used as a distributing base for such liquors, they saw a large covered truck come out of the building. The truck passed the agents’ car going at a high rate of speed, and was prqpiptly pursued by them; the truck taking a circuitous route covering'a distance of from 10 to 12 city squares, the speed varying from 20 to 30 miles an hour, when it was overtaken on Kager street, just west of Greenmont avenue, and in half a block of the defendant’s home. The two men on the truck jumped off as it stopped, and tried to get away, leaving the engine running. They were overtaken and placed under arrest, and informed the agents in response to inquiries as to what the truck contained, that it was none of their business, and they endeavored to prevent a search of the truck. The two men were placed in the custody of a police officer who happened t© be nearby, and it was determined to take the two men and the truck to the police station in the vicinity; the police officer having the men on the truck. Suddenly it was discovered that the men had been allowed to escape. The police officer, when asked for information as to the whereabouts of the men, answered with the inquiry, “What men do you want arrested?” The men having escaped, Agent Parker got upon the truck with the policeman, to proceed to the station, and upon his trying to get the truck in motion, he stalled the engine, and had to get oil to crank it.
At this juncture, the police officer disappeared, or Parker did not see him thereafter, and while endeavoring to crank the car, a crowd appeared, coming pretty much all at once, the defendant, Kelly, being among them. Kelly immediately demanded of Parker what he was doing. The latter showed him his “badge,” and told him who he was, and what he and his brother officer were doing. Kelly replied that “the badge” was no authority, and that he wanted to see some “authority,”
The two government agents testified fully as to the facts stated, and were positive in their recollection of the occurrences, and gave them in .some detail. The defendant testified in his own behalf, and denied seizing and holding Parker, as also his participation in any wrong doing of any sort, and claimed that he was merely a casual passerby. The policeman and police sergeant referred to were called by the defendant as witnesses. The sergeant, however, knew nothing of what occurred until after the truck speeded away, and the policeman denied generally the officers’ statements. The jury heard and saw the witnesses, and returned a verdict against Kelly under all three counts of the information, which wasi approved by the court, and judgment entered, from which action this writ of error was sued out.
The assignments of error will be considered in the order made. The first relates to alleged errors in impaneling the jury; the specific grievance being that the trial court, upon the calling of the case, furnished the government and the defendant wTith a list of 18 jurors taken from the regular panel of 32, in order that each side might peremptorily challenge 3 persons. The court selected the 18 from a panel of 30, two having been excused, and eliminated the names of 12 jurors who had served upon the trial of the defendant'a few days previous for infraction of the prohibition laws, which resulted in his acquittal, and this action was objected to because 2 of the 18 thus selected were of the 3 peremptorily challenged by the accused in the former trial. The government -and the defendant each peremptorily challenged three of the 18, and the remaining 12 were sworn and impaneled to try the case.
The second assignment of error relates to the action of the court in not requiring a government witness to respond on cross-examination to the inquiry, “Don’t you know that the rule in this jurisdiction is that you cannot stop trucks unless you see liquor on them ?”
This assignment is clearly without merit. At most the inquiry called for the opinion of the witness, which was not of importance; and, moreover, if in point of fact such rule existed, it was alike not warranted by law, and immaterial under the facts in this case.
The third assignment of error relates to the fact that the two persons found in charge of the truck, placed under arrest, and who subsequently escaped, informed the government officials who inquired as to die contents of the truck that “it was none of their business they attempting at the time to prevent search of the truck.
The theory on which this assignment is based is that the accused was not present, and hence that nothing that was said could be used, against him. Perhaps a sufficient answer to the objection is that it relates to an immaterial matter, since no information was given in the answer excepted to, and, if it be said that the refusal to give information was prejudicial in character as bearing on what the truck contained, still it is not half so much so as the attempt of the persons so answering to
The fourth assignment of error relates to the question asked defendant on cross-examination whether he had any means of livelihood.
Aside from the immateriality of this inquiry, the circumstances under which it was asked and answered shows clearly there was no prejudicial or reversible error, which occurred in connection therewith. The defendant, in answer to the question as to his acquaintance with Policeman Catón, replied that he knew him casually; that he had lived in* the community all his life, and many persons knew him that he did not know; and to the further inquiry if he did not know pretty well what was going on in the neighborhood, replied, “Well, no, I never interfere with other people’s business.” He was then asked what his business was, and he replied that he was out of business entirely, following which the government made the inquiry, objected to, “you have no means of livelihood,” and to which defendant replied, over his objection, “I have no business.”
The entire subject of this assignment shows its lack of merit, as well for want of materiality, as because there was nothing of which the defendant could especially complain.
The next and last assignment of error relates to the refusal of the court to strike out the testimony of the government’s witness, and to the sufficiency of the same to sustain the verdict and judgment of the court. The action of the court complained of in this respect is to our mind entirely free from error. The jury saw and heard the witnesses testify, and from their verdict believed the government’s evidence, and not that of the defendant. The conflict between the two was sharply drawn, and that of the government, if accepted and believed by the jury, was ample to sustain their verdict. It is not the province of this court to pass upon questions of conflict in testimony. The jury are triors of the facts, and, having acted in this respect strictly within their rights, their finding is binding upon the court. We may say, in this connection, that so fat as we can judge, from a careful review of the testimony, we fully concur in the conclusion reached
The judgment of the District Court will in all respects be approved and affirmed.
Affirmed.