279 F. 706 | 4th Cir. | 1922
This is a writ of error to the judgment of the United States District Court for the Eastern District of South Carolina, at Charleston. The plaintiff in error was a dentist, and practiced his profession at Columbia, S. C.; his place of business being known as the Baltimore Dental Parlors.
The indictment against him contains seven counts, charging violations of the Harrison Anti-Narcotic Drug Act (Comp. St. §§' 6287g-6287q). The first count alleges the sale to J. U. Bi'ooks of morphine; the second and third counts, the sale to J. E. Brooks, on different dates, of cocaine; the fourth count, the sale of morphine to Charles Duncan, and, the fifth count, the sale to him of cocaine; the sixth and seventh counts charge the sale of morphine and cocaine, respectively, to divers persons to the grand jurors unknown. The accused was tried at the june, 1921, term of court, and a general verdict of guilty rendered against him, upon which the court, on the 18th day of June, 1921, entered judgment, imposing a fine of $1,000, and the costs of the prosecution, and confinement for the term of 18 months in the penitentiary.
Sundry exceptions were taken to the action of the court pending the trial, and a large number of assignments of error, 24 in all, made.
While the assignments of error properly set forth the alleged errors complained of, it does not appear that either a motion to quash, or a demurrer to the indictment and the several counts thereof, was entered; aid the questions covered by the assignments were for the first time raised on motion in arrest of judgment. These assignments, in our judgment, are wholly without merit, certainly when made in arrest of judgment, and after a general verdict and judgment upon all of the counts of the indictment has been entered against the defendant. Nothing is better settled than that a verdict and judgment upon an indictment containing several counts should not be reversed, if any one of the counts is good and warrants the judgment. The presump't on of the law is that the court awarded sentence on the good count cnly. Claassen v. United States, 142 U. S. 146, 12 Sup. Ct. 169, 35 L. Ed. 966; Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830; Durland v. United States, 161 U. S. 314, 16 Sup. Ct. 508, 40 L. Ed. 709; Gregory v. United States (C. C. A.) 272 Fed. 119; Rev. Stat. § 1024 (Comp. St. § 1690).
Second. Assignments Nos. 3, 4, 5, 11,13, 16, 17, 18, and 19, severally relate to the action and ruling of the court during the trial, upon the edmission or rejection of testimony, either because the same was plainly hearsay in character, or involved collateral and incidental matters in no way essential to the merits, of which arose upon questions wholly within the discretion'of the trial judge, whose conclusions respecting the rulings covered by the said several assignments are free from error, and quite as favorable to the plaintiff in error as he could have asked lor.
Third. Assignments 6, 7, 8, 21, and 24, relate to the swearing out of the search warrant, to search the premises of the defendant, and the taking thereunder of two $5 bills, and a quantity of small pasteboard boxes, commonly called pill boxes, as set forth and described in the return to said warrant. The defendant promptly objected to the testimony bearing on this warrant, .and the search made thereunder, because, among other things, the warrant was sworn out on information and belief only, and did not state the grounds of the belief, or the source of the information of the person swearing out the same, nor describe the property to be seized. The court overruled the objection, and admitted the affidavit and search warrant in evidence, as well as ihe property claimed to have been taken under it; and it is as to the correctness of this ruling that we are called upon to pass.
The circumstances under which the warrant was sworn out are briefly these: The official narcotic inspector, as well as a prbhibition -epresentative at Columbia, S. C., and certain subordinates of theirs,
The witness Brooks testified that he had on many occasions purchased drugs from Dr. Woods direct. Frederick Stanton, otherwise “John,” testified that he had likewise purchased drugs from Dr. Woods, and was his agent for the sale of drugs. Charles Duncan also testified that he had purchased drugs direct from Dr. Woods.
“See. .‘>162. TIio several judges of the Circuit and District Courts .of the United States, and commissioners of the Circuit Courts, may, within their respective jurisdictions, issue a search warrant, authorizing any internal revenue officer to search any premises within the same if such officer makes oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue'has been or is being committed upon or by the use of the said premises.”
And they were in the precise words of the act; the commissioner certifying that the narcotic agent, after being duly sworn, “deposes and says that he lias good reason to believe, and does believe, that a fraud upon the revenue of the United States has been and is being committed upon and by the use of certain premises and offices occupied by IT. Ashwell Woods in the building situated at 1328 Main street, Columbia,” and the search warrant reciting this affidavit directed that search be made of the premises. By virtue of this search warrant, the officers accosted the defendant at the entrance to his place of business, at the address stated in the warrant, and accompanied him into the office rooms, and, while there attempting to search the defendant, he took from his pockets and laid down on the table a small pocketbook and some money, which money was picked up and examined by an officer and found to contain one of the marked $5 bills in question. After a thorough search of the premises, the defendant was informed that he would be arrested. The United States Commissioner was called up over the phone, and the defendant’s temporary bail fixed, which he secured by the deposit of a Liberty Bond for $1,000 and $100 in cash, which included one of the marked $5 bills. Whether the warrant of
A careful examination of this search warrant, and the affidavit on which the same was issued,’ convinces the court in the light of the authcrities (Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Dumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; Honeycutt v. United States, 277 Fed. 939 (a decision of this court rendered November 17, 1921) that both are materially de'ective, in this, that it does not sufficiently appear what person, if any, or what property was to be seized under the' same. The fourth amendment to the Constitution reads:
‘ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized.”
The language of the affidavit in this case, as well as that of the search warrant, is substantially in the wording of the act of Congress, in matter of form; but the failure to conform as well'to the Constitution as_ to the spirit of the statute, by particularly describing the persons or thing to be seized, makes the same void. The mere statement that a fraud on the. revenue was being committed upon and b}>- the use of certain rooms, without setting forth what fraud was being committed, or by whom, or what was expected to be seized, conveyed and carried no inte’ligent information to the defendant of the object and purpose of the search.
The court, in making these rulings, apparently proceeded upon the theory that the information sought to be elucidated was collateral in character. In this we think there was error. The defendant had the right to attempt to impeach the witness Duncan, by showing that he had made statements respecting the same subject-matter, contradictory to those he had testified to, and he could thereby also show the bias and animus of the witness. The fact that the witness was uncertain as to whether he liad made contradictory statements, or could not remember what he had said, .should not serve to prevent calling persons before whom it was claimed the contradictory statements were made. The testimony was in no sense collateral, but related directly to tlie merits of the issue under consideration; and the truth or falsity of the statements which the government witness swore to was of vital importance, so far as the defendant was concerned. Willis v. Russell, 100 U. S. 621, 25 L. Ed. 607; Ayres v. Watson, 132 U. S. 394, 403, 5 Sup. Ct. 641, 28 L. Ed. 1093; 1 Greenleaf on Evid. §§ 462, 464; Jones on Evid. pars. 828, 829, and 844, note 6; 28 R. C. L. p. 639, note 18.
In this action, we think the court erred, inasmuch as it was important to the defendant, if he could, to disassociate himself from the relationship that the witness Stanton had sought to establish between them, in the sale and disposition of drugs; and if it could have been shown that it was untrue that Stanton sold drugs secured from the defendant Woods alone, and, on the contrary, got them from other sources, the defendant should have been permitted to do so. Scott v. United States, 172 U. S. 343, 19 Sup. Ct. 209, 43 L. Ed. 471; Dodge v. State, 122 Ala. 97, 26 South. 200, 82 Am. St. Rep. 23, and note, pp. 25 to 41; Turnpike Co. v. Loomis, 32 N. Y. 127, 88 Am. Dec. 311, note, p. 321.
For the reasons stated, the judgment of the lower court will be reversed, and this case remanded to said court, with directions to award a new trial.
Reversed.