CASEY v. UNITED STATES.

Circuit Court of Appeals, Ninth Circuit. June 27, 1927.

Rehearing Denied August 1, 1927.

No. 5104.

1. Criminal law 970 (7)-Count charging defendant, without registering, did "manufacture, produce, compound, sell, deal in, dispense, distribute, administer, and give away morphine," held sufficient on motion in arrest.

Count charging that defendant, without having registered or paid tax, did knowingly and feloniously "manufacture, produce, compound, sell, deal in, dispense, distribute, administer, and give away morphine," held sufficient as against a motion in arrest of judgment, though blanket form was not approved.

2. Indictment and information 109-Inclusion in charge of all acts denounced by statute, though unwarranted by evidence, is not approved, but does not make pleading defective.

The practice of including in a charge all acts denounced by statute, even though it is known that the evidence will have no tendency to support some of them, is not approved, though such form of pleading is not fatally defective.

3. Poisons 9-Charge of dealing in morphine without registering or paying tax held sufficient, without express averment of duty to register and pay tax.

Charge that defendant, without having registered or paid special tax required, did manufacture, produce, compound, sell, deal in, dispense, etc., morphine, held sufficient, without express averment that defendant was a person of whom registration and payment of tax was required.

4. Criminal law 323-Statutory presumption from possession of drug extends to venue or place of purchase (Comp. St. Supp. 1925,, § 6287g).

Presumption, under Comp. St. Supp. 1925, § 6287g, arising from defendant's possession of drug not in original stamped package, extends to venue or place of purchase, as well as to substantive fact of purchase.

5. Criminal law 1036 (8)-Failure of gov. ernment to prove venue must have been brought to trial court's attention, to be ground for complaint.

Failure of government to prove venue must have been specifically brought to trial court's attention to be available for ground of complaint on appeal.

6. Criminal law 369(15)-Testimony relat. ing to acts unconnected with sale of morphine specifically alleged held admissible to show that defendant was person dispensing narcotics and required to register.

In prosecution for purchase of morphine not in original stamped package, and for dispensing morphine without having registered or paid special tax, testimony relating to acts or circumstances not connected with particular

sale alleged held admissible to show a dealing in and dispensing of narcotics, and also to show that defendant was a person required to register.

7. Criminal law

942(1)-Denial of new trial on ground of newly discovered evidence affecting credibility of government witness held not abuse of discretion.

In prosecution for unlawful purchase and dispensing of morphine without having registered or paid special tax, denial of new trial on ground of newly discovered evidence affecting character and credibility of one of government's witnesses, and tending to show false testimony, held not abuse of discretion; such false testimony being relevant only to incidental and collateral matter.

8. Criminal law 911-Grant or refusal of new trial is generally within discretion of trial court.

Generally granting or refusing of a new trial is within the discretion of the trial court. 9. Criminal law 938(1)-New trials for newly discovered evidence are not favored.

New trials on ground of newly discovered evidence are not generally favored.

10. Criminal law 857(2)-Alleged misconduct of juror in argument concerning handwriting claimed by government to be defendant's held not ground for new trial.

Alleged misconduct of juror in stating that both he and defendant had attended a private school, where a particular system of penmanship was taught, and that because of handwriting he was convinced that defendant wrote certain words on wrapper of laundry package, in which government contended that defendant had smuggled narcotics to prisoners in county jail, held not ground for new trial.

In Error to the District Court of the United States for the Northern Division of the Western District of Washington.

Thomas J. Casey was convicted of purchasing morphine not in original stamped package and of dispensing morphine without having registered or paid tax required by law, and he brings error. Affirmed.

John T. Casey, of Seattle, Wash., and William F. Herron, of San Francisco, Cal., for plaintiff in error.

Thos. P. Revelle, U. S. Atty., and Paul D. Coles and Anthony Savage, Asst. U. S. Attys., all of Seattle, Wash.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge. Defendant (plaintiff in error) was adjudged guilty upon both counts of an indictment charging him (1) with the purchase of 3.4 grains morphine not in the original stamped package; and (2) with having dispensed morphine without having registered or paid the special tax as re

quired by law, venue of both charges, Seattle, Wash., and time of both, December 31, 1925. The sentences were the same on both counts, the terms of imprisonment to run concurrently.

The sufficiency of the first count is not seriously challenged. One of the clauses is grammatically misplaced, but the meaning is so obvious that to quash upon that ground would be a pure legalism. The question of the constitutionality of the Harrison Narcotic Act is raised only for procedural purposes, and properly counsel refrain from urging reconsideration of it here.

[1] Count II is assailed as "purely a blanket charge." It sets forth that on December 31, 1925, at the city of Seattle, defendant, without having registered or paid the special tax as required and imposed by law, did knowing ly and feloniously "manufacture, produce, compound, sell, deal in, dispense, distribute, administer, and give away morphine." There is no averment of the amount of the drug or of the persons to whom it was dispensed.. [2] While we are unable to approve the practice of including in a charge all the acts denounced by the statute, where it is known the evidence will have no tendency to support some of them, it is well settled that such a form of pleading is not fatally defective. Here there probably never was any thought of attempting to prove that defendant manufactured or produced or compounded, but we are unable to see how the inclusion of these terms was prejudicial. In one aspect, the failure to allege the amount of the drug or the identity of the persons to whom dispensed would seem to be more serious. But, as bearing upon both the charge and certain evidence, to which defendant objected, adduced in support thereof, it is to be borne in mind that the offense denounced by the statute may be and often is evidenced, not by a single act, but by a series of acts of the same character. To prove that a defendant is dealing in, dispensing, or distributing morphine, the government may show few or many transactions in which he has sold or furnished the drug. In such a case it might be impracticable, and certainly not necessary, to plead the details of such transactions, for after all they are but evidence of the ultimate fact to be found.

In no way did the defendant here challenge the indictment until after verdict, and as against a motion in arrest of judgment it is plainly invulnerable. Had he complained before trial that, in view of the generality of the charge he could not intelligently or safely prepare his defense, it is to be presumed that upon seasonable application the court would 20 F. (2d)-48

have ordered a reasonably certain bill of particulars. See Stubbs v. United States (C. C. A.) 1 F. (2d) 837, where we affirmed a judgment upon a similar charge, a bill of particulars having been sought and secured.

Defendant relies mainly upon Miller v. United States (C. C. A.) 288 F. 816, and Johnson v. United States (C. C. A.) 294 F. 753, the latter decided by this court. In both cases the indictment was assailed by demurrer, for uncertainty as well as insufficiency. In the former the first ground was sustained, but the second apparently overruled. In the Johnson Case the charge was not the same as here and presented somewhat different considerations.

[3] As to the point that there is no express averment that defendant was a person of whom registration and payment of tax is required, the necessary implication of the allegations is that he was within such class. We so held in Bacigalupi v. United States (C. C. A.) 274 F. 367. Upon the second count the evidence, though conflicting, is ample to support the verdict.

[4] As to the first count, to establish the charge of purchase the government relied upon evidence of possession by the defendant of the drug not in the original stamped package, together with the declaration of the statute (Comp. St. Supp. 1925, § 6287g) that "the absence of appropriate tax-paid stamps

shall be prima facie evidence of a violation of this section by the person in whose possession same may be found." There was no other evidence of the place of purchase, and arguing that the statutory presumption does not extend to venue, defendant contends the proof was vitally defective. Considering a similar charge in the case of Ng Sing et al. v. United States, 8 F. (2d) 919, we said: "The plaintiffs in error are therefore subject to the presumption arising from possession under the amendment of 1919, and the presumption alone would carry the case to the jury." But possibly the precise point was not there raised.

While defendant's contention is not without support in the decided cases (see Brightman v. United States [C. C. A.] 7 F.[2d] 532; Cain v. United States [C. C. A.] 12 F. [2d] 580; and De Moss v. United States [C. C. A.] 14 F. [2d] 1021), to grant it would seem to rob the statute of all efficacy. If, independently of the statutory presumption, the government must affirmatively prove the place of purchase, it must also by like evidence prove the substantive fact of purchase, for how the place of purchase can be established without at the same time proving the

purchase is not apparent. Fairly construed, the statute in our opinion extends the presumption to the incidental matter of place, as well as the substantive matter of purchase. [5] But, aside from that consideration, the record fails to show that the question was raised in the lower court. True, the bill of exceptions recites that defendant "challenged the sufficiency of the evidence and requested the court to instruct the jury" to acquit, but on what grounds is not disclosed. Proof of venue is often easily supplied, and both upon reason and authority it is thought that to make such an assignment available the attention of the trial court must be specifically directed to the defect. Ryan v. United States (C. C. A.) 285 F. 734; Jianole v. United States (C. C. A.) 299 F. 496.

[6] The several assignments involving the reception of evidence, may be summarily disposed of. Some of them are trivial and so clearly devoid of merit that comment is unnecessary. The only ones seriously argued cover testimony relating to acts and circumstances which it is contended are unconnected . with the alleged sale on December 31st, and relate to offenses not charged; but all of it directly or indirectly tended to show that on December 31st defendant was dealing in and dispensing narcotics, and also that defendant was a person required to register; hence, it was relevant. Stubbs v. United States (C. C. A.) 1 F. (2d) 837; Braden v. United States (C. C. A.) 270 F. 441.

[7-9] One of the grounds upon which defendant moved for a new trial was newly discovered evidence, supported by numerous affidavits which in the main assail the character and credibility of one of the government witnesses and tend to show that she was untruthful in some of the testimony she gave. Generally the granting or refusing of a new trial is within the discretion of the court; and new trials upon this ground are not favored. Under the circumstances, defendant must have known or had good reason to anticipate that this witness would testify for the government, but there is no showing at all of diligence. The alleged false testimony was brought out on cross-examination as to matters purely incidental and collateral. Upon the whole, while the showing against the credibility of the witness is persuasive, we cannot say that there was an abuse of discretion in denying the motion upon this ground.

[10] Another ground relied upon for a new trial was alleged misconduct of the jury. Specifically, as shown by the affidavits of some of the jurors, the question having arisen

in the jury room whether or not defendant wrote certain words upon the wrapper of a laundry package in which the government contended defendant smuggled narcotics to prisoners in the county jail, one of the jurors stated that both he and defendant had attended a private school, where the system of penmanship taught was the same as that exemplified in the disputed words, and that he was convinced defendant wrote them. That a writing is in the hand of a defendant, because it conforms to the system of penmanship he and many other persons have been taught, is such an irrational conclusion that it is beyond belief intelligent men would be greatly influenced thereby. It must be, too, that in their deliberations jurors more or less generally recall experiences in their own lives, and if new trials were commonly granted for such a reason there would be no end to litigation. The judgment is affirmed.

RUDKIN, Circuit Judge (concurring). The concurrent judgment is supported by the second count alone, and for that reason I express no opinion as to the sufficiency of the evidence to support the verdict on the first count. I agree with Judge DIETRICH that the cases holding that the presumption arising from possession does not extend to the venue would seem to rob the statute of its efficacy; but, inasmuch as the courts of two circuits have so ruled, I think the question should be reserved until it becomes necessary to a decision of some case properly before us.

BONNESS et al. v. UNITED STATES. Circuit Court of Appeals, Ninth Circuit. June 27, 1927.

1. Jury

No. 4984.

131(13)-Refusal to permit examInation of jury on voir dire and asking of general questions held not error.

Refusal of court to permit counsel to examine jurors separately on their voir dire and to permit asking of general questions held not erroneous.

2. Prostitution 4-Extent to which defend. ants may go into collateral facts rests in trial court's discretion (Comp. St. §§ 88128819).

Extent to which defendants in prosecution under the White Slave Traffic Act (Comp. St. collateral facts rests in the sound discretion §§ 8812-8819) would be permitted to go into of the trial court.

3. Prostitution 4-Excluding testimony that defendants, charged with violation of White Slave Traffic Act, had made previous trips with one of same girls, held not abuse of discretion (Comp. St. §§ 8812-8819).

In prosecution under the White Slave Traffic Act (Comp. St. §§ 8812-8819), excluding testimony tending to show defendants had made several previous trips with one of girls whom they were charged with transporting, at which times they were accompanied by her mother and other members of family and friends, held not abuse of discretion, in view of lack of conflict in testimony showing that excluded testimony could have no controlling effect on the

verdict.

4. Witnesses 337 (4)-Cross-examining defendant, charged with violation of White Slave Traffic Act, as to stopping at hotel with same girl, following return from trip charged, held proper (Comp. St. §§ 8812-8819).

In prosecution under the White Slave Traffic Act (Comp. St. §§ 8812-8819), cross-examination of defendant relative to stopping at hotel on return from trip with same girl he was charged with transporting held not erroneous, even though not competent and material on question of intent, since testimony tending to show that they had stopped at another hotel after their return would tend to impeach witness' testimony relative to stopping at different hotels during trip charged.

5. Criminal law 779-Only right which defendant has relative to testimony competent as against other defendant is to have instruction given to disregard testimony as to him (White Slave Traffic Act [Comp. St. §§ 88128819]).

If testimony was competent as against one of two defendants charged with violation of White Slave Traffic Act (Comp. St. §§ 88128819), the utmost right the other could claim would be to have jury instructed to disregard testimony as to him.

6. Criminal law

829(1), 834(2)-Court need not repeat same proposition of law in charge, nor employ exact language of requests.

Court, in giving charge, need not repeat same proposition of law a number of times, nor need it employ exact language of requests, though such requests state law correctly.

7. Criminal law 829 (3)-Requests that gist of offense under White Slave Traffic Act was immoral purpose formed before crossing boundary held sufficiently embodied in general charge (Comp. St. §§ 8812-8819).

In prosecution under the White Slave Traffic Act (Comp. St. §§ 8812-8819), requested charges to effect that immoral purpose was gist of offense, and that purpose must have been formed in minds of defendants before they crossed boundary line, held sufficiently embodied in general charge, stating that defendants were

on trial only for transporting girls in foreign commerce for an immoral purpose.

In Error to the District Court of the United States for the Northern Division of the

Western District of Washington; Jeremiah Neterer, Judge.

Justus I. Bonness and another were convicted under the White Slave Traffic Act, and they bring error. Affirmed.

Shorett, McLaren & Shorett and Jay C. Allen, all of Seattle, Wash. (John R. Walthew, of Seattle, Wash., of counsel), for plaintiffs in error.

Thos. P. Revelle, U. S. Atty., and Anthony Savage and Paul D. Coles, Asst. U. S. Attys., all of Seattle, Wash.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge. This is a writ of error to review a judgment of conviction under the White Slave Traffic Act (Comp. St. §§ 8812-8819). The indictment charged that the two plaintiffs in error on July 3, 1925, transported two girls, in foreign commerce, from the city of Seattle, in the state of Washington, to the city of Vancouver, in the Dominion of Canada, as passengers in a Chevrolet touring automobile, for the purpose of prostitution, debauchery, concubinage, and other immoral purposes, to wit: That the plaintiff in error Bonness should and would engage in illicit sexual intercourse with one of the girls, and that the plaintiff in error Grimes should and would engage in illicit sexual intercourse with the other girl, in the city of Vancouver, in the Dominion of Canada.

The testimony shows that the plaintiffs in error and the two girls left Seattle on the evening of July 3, and drove to Bellingham, Wash., where they stopped for the night. There, they registered at a hotel and occupied two rooms. On the following day they drove from Bellingham to Vancouver, British Columbia, where they again stopped for the night, occupying two rooms in the same hotel. At both hotels they all registered under assumed names. Up to this point there was no further testified that at both Bellingham and conflict in the testimony. One of the girls. Vancouver she occupied one of the rooms with one of the plaintiffs in error and had illicit relations with him, and the other girl testified that at both Bellingham and Vancouver she occupied the other room with the other plaintiff in error and had illicit relations with him.

The plaintiffs in error, on the other hand, testified that the two girls occupied one of the rooms at both Bellingham and Vancouver, that they occupied the other room, and that they had no illicit relations with either of the girls at either place. [1] The first three assignments of error are

based on the refusal of the court to permit counsel to examine the jurors separately on their voir dire, and upon the refusal of the court to permit the asking of such general questions as: Now, do you know of any reason at all that would prevent you doing by these men as you would like to be done by, if you were situated in similar circumstances? You realize that every man is presumed to be innocent until proven guilty by evidence which convinces your mind beyond a reasonable doubt? And if, after hearing all the evidence, you have a reasonable doubt as to the guilt of these men, or either of them, will you follow the instructions of the court, and give them the benefit of such doubt? There was no error or abuse of discretion in these rulings. Shively v. United States (C. C. A.) 299 F. 710; Noland v. United States (C. C. A.) 10 F. (2d) 768; Kurczak v. United States (C. C. A.) 14 F. (2d) 109; Bradshaw v. United States (C. C. A.) 15 F.(2d) 970.

[2, 3] The next several assignments are based on rulings of the court excluding testimony tending to show that the plaintiffs in error had made several previous trips with one of the same girls, accompanied by her mother and other members of the family, and by friends. This testimony was offered for the purpose of showing that the trip to Vancouver was made for an innocent purpose. If testimony as to the previous relations of the parties is competent to show an unlawful purpose, it is equally competent to show an innocent one. But the extent to which parties will be permitted to go into collateral facts rests in the sound discretion of the trial court, from the necessities of the case, and we fail to see any abuse of discretion here. An examination of the entire record discloses little if any conflict in the testimony, and little if any dispute over the arrangements for the trip, or the trip itself, until the parties reached Bellingham, so that the excluded testimony could have no controlling effect upon the verdict. For the like reason, the court did not err in excluding testimony tending to show how the parties came to meet on the streets of the city of Seattle on the evening of their departure for Bellingham, or how they came to register under assumed names. The testimony admitted, shows quite clearly all the circumstances surrounding their meeting and their reasons for registering as they did. [4] On cross-examination of the plaintiff in error Grimes, he was asked whether he had not registered at a hotel in the city of Seattle on July 6, the day following his return from Vancouver, under an assumed name, with the

girl who testified that she had occupied the same room with the witness at Bellingham and Vancouver, and whether or not he had not spent the night with her there. The witness did not admit that such was the fact, but his evasive answer was tantamount to an admission. The ruling of the court admitting this testimony is assigned as error. The plaintiffs in error contend that this testimony was not competent for the purpose of proving the intent with which the trip to Vancouver was made, or for any other purpose, and in this connection our attention is directed to numerous decisions in so-called sexual cases, such as adultery and the like. There a wide latitude is universally permitted in the admission of testimony tending to prove previous acts and previous relations of the parties, and many courts, though perhaps a minority, extend the rule so as to include subsequent acts and subsequent relations as well. See note to People v. Molineux, 62 L. R. A. 193329. But this case does not belong to that class. Sexual intercourse is not an element of the crime here charged. At best it is only a circumstance tending to prove the purpose for which the transportation was made. The government contends that the testimony was competent and material on the question of intent, but with that contention we are unable to agree. Manifestly a single isolated act such as this committed some two days after the trip ended could have little or no tendency to prove the purpose for which a trip in foreign commerce was made two days before. But, nevertheless, we think the question was proper on cross-examination. [5] There was testimony tending to prove that the same parties had stopped at two different hotels under assumed names some two days before, and testimony tending to show that they stopped at another hotel under the same circumstances two days later, would necessarily tend in a measure to impeach the testimony of the witness. It would at least tend to prove that nothing was lacking on the prior occasions save the opportunity. It is said that the testimony was in any event incompetent as against the other plaintiff in error, but if competent as against one, the utmost right the other could claim would be to have the jury instructed to disregard the testimony as to him, and it does not appear that any such request was made.

[6,7] A number of the assignments are based on the refusal of the court to give certain instructions requested by the plaintiffs in error. Nearly all of these requests were of like import. Their substance was that the immor