263 F. 66 | 2d Cir. | 1920
Plaintiff in error, has been indicted on four counts. The first count is for unlawfully, knowingly, and willfully selling, on December 1, 1918, to one Gillies, two tins of smoking opium when he had not registered with the collector of internal revenue as a person who deals in, dispenses, or sells opium or coca leaves; the second count charges such sale to Gillies as not in pursuance of any ■written order of the person to whom it was made, on the blank issued for that purpose; the third count alleges the sale to Gillies, on the 10th of January, 1919, of four tins of smoking opium, and that the plaintiff in error, at the time of such sale, had not registered with the collector of internal revenue as a person who. deals in, dispenses, or sells opium or coca leaves; and the fourth count alleges that such sale on the. 10th of January, 1919, was-not made in pursuance of a written order to the person to whom it was made on blank form issued for that purpose by the Commissioner of Internal Revenue.
The plaintiff in error was convicted on the first three counts. After
But the government rightly contends that, it being established that Gillies was a habitual user of opium, his testimony as to the nature of the substance with which he was familiar was sufficient to require the submission of the question of whether or not the substance was opium to the jury as a question of fact. His testimony was given without objection, and he testified that he had been using the opium for about a year, and he was therefore familiar with it. However, a motion was subsequently made to strike out his testimony, which was denied. This was evidence as to a fact which the witness was competent to state, and its submission to the jury was therefore proper. The witness possessed greater knowledge than the jury as to the fact that it was opium, and therefore his testimony was of assistance to them. One who drinks fermented liquor and knows the taste of it, although not a chemist, may testify that a particular liquor was fermented. Merkle v. State, 37 Ala. 139. One familiar with the odor of carbolic acid, although not a chemist, may be permitted to testify that such an odor came from the corpse. Greene v. State, 125 Ga. 742, 54 S. E. 742. He may also testify to the odor of chloroform. "Miller v. State (Tex. App.) 50 S. W. 704. The qualification to express an opinion that it was opium was gained from his habitual use of it, and the fact that he said he mixed the contents with water and drank it, and therefore tasted it.
Where two or more persons are associated together for the same illegal purpose, any act or declaration of one of the parties with reference to the common object, and forming a part of the res geste may be given in evidence against the other. Clune v. U. S., 159 U. S. 593, 16 Sup. Ct. 125, 40 L. Ed. 269. Iannone was operating with the defendant after his designation to Gillies by the plaintiff in error as his agent, for accomplishing the. unlawful trafficking m opium, and his acts were properly received as against the plaintiff in erro, even though the indictment does not charge a conspiracy. Wiborg v. U. S., 163 U. S. 632, 16 Sup. Ct. 1127, 41 L. Ed. 289; U. S. v. Gooding, 12 Wheat. 460, 6 L. Ed. 693. Because of the relationship existing between the plaintiff in error and Iannone, tire testimony of the police officer relating to the acts and conversations of Gillies and Iannone when the opium was delivered to Gillies was properly received. It was evidence of the transaction indicating the sale and delivery of the opium on the 10th of January, 1919. This was the subject of the charge in the indictment, and therefore properly received as evidence of thé commission of the crime.
The judgment is affirmed.