Miller v. United States

HUNT, Circuit Judge.

Plaintiff in error asks review of his conviction of the sale of intoxicating liquor and of maintaining a nuisance, contrary to the provisions of the Alaska Bone Dry Act. 39 Stat. 903, c. 53, approved February 14, 1917 (48 U.S.C.A. § 261 et seq.).

Error is assigned to a ruling of the court admitting certain testimony of a prohibition agent, who, after testifying that he and one Kinnard, another prohibition officer, while making an investigation, met and talked with two young men, added: “Liquor was mentioned, and they said they would — ” Counsel for defendant interrupted and asked the court to instruct the witness not to say what anybody said. The court directed that no conversation be given. Witness then continued: “Liquor was mentioned — ” Counsel again interrupted with a general objection and motion that what the witness said be stricken out. The court overruled the objection, and exception was noted. The witness then said: “Those-men invited us to accompany them to a place where liquor coúld be purchased.” Again a general objection and motion to strike were overruled and exception noted. In the absence of a statement of specific grounds upon which the objections were based, defendant is not in a position to insist upon his contention. However, inasmuch as the evidence is that the prohibition agents went to Miller’s place, where they bought whisky, there was no possible prejudice to the defendant by the testimony that the two men they met invited them to “a place.” Erie R. Co. v. Schomer, 171 F. 798, 96 C.C.A. 458; Fuller v. United States, 53 App.D.C. 88, 288 F. 442.

It is contended that the court erred in permitting the jury to take with them to the jury room the affidavit of one Kinnard upon which the information on which defendant was charged was based. Granting that the court should not have allowed the affidavit to go to the jury room, no harm was done to the defendant, for the statements in the affidavit were of facts all of which were testified to on the trial by the person who made the affidavit. Langan v. People, 32 Colo. 414, 76 P. 1048; 17 C.J. 354.

Error is assigned because the court did not instruct the jury specifically to disregard certain statements made by the prosecuting attorney in his argument to the jury, to which counsel objected during the argument. The court stated that the jury would be instructed in regard to the statements of counsel that were not sustained by the evidence, and in its charge to the jury the court did instruct that the evidence is what the conclusions of the jury must be based upon, and that statements of counsel, outside of legitimate conclusions derived from the evidence, should not be considered. No exception was preserved to that instruction; nor was any specific request made for a further charge that the particular remarks objected to should be disregarded. Therefore there was no error. Deupree v. United States (C.C.A.) 2 F.(2d) 44; McDonough v. United States (C.C.A.) 299 F. 30.

The judgment is affirmed.