Fulkerson v. United States

HUNT, Circuit Judge.

Fulkerson, defendant below, was convicted of unlawful possession of intoxicating liquor, sale of some of such liquor, and maintenance of a common nuisance. To review the judgment he brought writ of error.

The substance of testimony in bobalf of the government was that prohibition agents went to a certain apartment in an apartment house in Seattle, and were invited .into a room by a woman named Miller; that one of the agents asked for whisky, and the other for gin; that the woman returned with a flask of whisky in the pocket of her dross, and delivered some gin to one of the agents; that she told them that the price of the bottle was $5; that, upon an offer of $5 for the two drinks and what was left in the bottle, she said she would see, and went outside; that in a few minutes defendant Fulkerson came in and said, “It is all right for the five,” and passed the bottle to one of the men, and Fulkerson took the $5 in payment; that Fulkerson was then placed under arrest, and upon service of a search warrant a quantity of liquor was found in the kitchen and other parts of the apartment.

The defendant testified that he was a policeman in Seattle; that he rented a room in the apartment house and went there on the day in question to get some of his effects ; that while in the hall a woman, whom he did not know, came from another room and said, “Here is this bottle of yours; it ought to be good for your rheumatism”; that she asked where he came from, and he replied from the lavatory; that she said, “You just hand it to them,” and opened the door of a room where he (the defendant) found two men, and handed the bottle to one of them; that the men gave him (the defendant) some money, and that, upon asking what it was for, the man replied, “For the bottle”; that the woman had gone away, and that the man then put' him under arrest; that when the bottle was handed to him it was not wrapped, and that when the $5 bill was handed to him the man said, “Here, give this to the girl.”

After careful instructions, explaining the presumption of innocence and that it was the duty of the jury to give the defendant the benefit of a reasonable doubt, the court defined direct and circumstantial evidence, and distinctly charged that the jury was the sole judge of all the facts in the case and of the credibility of the witnesses, and then said:

“Now, then, what is the testimony on the part of the government? The witnesses on the part of the government say that when they went in this Miller woman brought them in some drink, and then they asked for a flask, and she went out and said, “Wait a minute,” went out with the partially filled flask, and then came back with the defendant. The defendant said, “That is all right, $5 for the bottle and for the two drinks,” and gave the bottle to Mr. O’Hara and took the $5. Now, the defendant says that he was in the hall; that he did have his coat off, as the officers of the government say he did; that he did come into the room with the bottle of whisky in his hand; that he did deliver to one of these men the bottle and did receive $5. Now, that far the testimony harmonizes. Now, he said that the woman gave it to him; ho did not know what it was; told him to give it to the man, and he did it; then the officers came in and they found the $5 in his hand, just as the officers testified they did. Now, he was asked whether the bottle was wrapped up; he said, ‘No.’ He said he did not know what was in the bottle. It is for you to determine the fact. Now, if he was in the hall, and if this woman gave him the bottle, and told him to deliver it to these men, and he did not know what was in the bottle, and gave it to the men, without knowing what was in the bottle, and got the $5 without knowing what was in the bottle, or what he was doing, if you believe that, then he is not guilty, because he didn’t know what was in the bottle. If you believe that a man could be bn the police force in Seattle •for three years, and have a flask like that passed to him, with that color of contents, a man on the police force, and not knowing it was whisky or prohibited spirits provided by the Volstead Law and the-prohibition amendment, then you must conclude that way, because it is for you to determine what the fact is. Now, I don’t want you to conclude from any opinion you may think I have of the facts. I don’t believe a word of it myself; I believe he knew what was in the bottle, but that must not control 'you; you must find the fact. And while I have a right to tell you what I think about the facts, you must not be controlled by what I think about them; you must weigh all the testimony and all the circumstances, and determine what the truth is. If you have a reasonable doubt as to the facts, then you should return a verdict of not guilty. But, if you are convinced beyond a reasonable doubt that he did know what was in the bottle, then it is your duty to return a verdict of guilty on the first count, and of guilty on the second count, because the possession of that one bottle would be sufficient to violate the law, as charged in the information, of possession and sale. * * *

“Now, in these instructions, gentlemen of the jury, I have related and referred to the facts or testimony and the. circumstances, with a view of illustrating or demonstrating some proposition of law which has its application to the facts, and have expressed some personal opinion; but I do not want you to be controlled by it in any sense, but I want you to conclude upon the evidence itself, so that the law may be administered fairly, if the, law has been violated that it may be enforced, and the parties who violate it be punished. When the courts cease to function properly then God have mercy upon the people of the United States. Law is a rule of civil conduct prescribed by a superior power, and persons must.regulate their conduct with relation to that law. It is a rule-by which people shall live, and when they violate . that rule why then they must be punished; that is the only way we can have government; and when courts and juries won’t function it will only be a short step to a condition of anarchy. If you believe that the defendant went on the stand and perjured himself, with a view of escaping a penalty, you will so conclude. Pass upon this fairly. It is your duty as 12 fair-minded men to give the defendant a square deal; he is entitled to it. The government is entitled to a square deal; give it a fair and square deal in this case and if you have a reasonable doubt upon all the circumstances developed here, you will resolve it in favor of the defendant; if you are convinced beyond a reasonable doubt, then return a verdict of guilty in this ease, as your conscience dictates, and the right and truth is.”

The argument is that the court, by its comments upon the testimony and upon the general consequences of a failure of courts and juries to “function,” emphasized the evidence which was adverse to the defendant, and invaded the province of the jury, and prevented it from properly performing its function. But in the federal courts the expression of the opinion of the judge upon the facts is not ground for reversal, provided, always, the court clearly and unmistakably instructs that all matters of fact, including those upon which the court may have expressed its opinion, are ultimately for the jury to pass upon. In Lovejoy v. United States, 128 U. S. 171, 9 S. Ct. 57, 32 L. Ed. 389, the Supreme Court held that a court of the United States, in submitting a ease to the jury, might at its discretion “express its opinion upon the facts, and that such an opinion is not reviewable on error, so long as no rule of law is incorrectly stated and all matters of fact are ultimately submitted to the determination of the jury.” Tuckerman v. United States (C. C. A.) 291 F. 958. Applying the rule stated to the charge given, it was not error for the court to express its opinion upon the facts, for in positive language and more than once it was made perfectly clear that the jury were the “sole judges of all the facts in the case”; that they must not be “controlled in any sense” by what the judge thought about the facts; that they must give defendant and the government a “square deal” and conclude upon the evidence itself what was the truth.

There is left for consideration the language by which the judge depicted that, if courts and juries fail to perform their duties, anarchy is but a step away. How could that statement have prejudiced the defendant'/ Of course, courts and juries must act within their respective spheres, by upholding the law where the evidence proves guilt, as well as where it fails to meet the measure of proof legally required. Considering the whole charge, there was nothing which told the jury that the way to function in the ease before them was to convict, regardless of legal evidence establishing guilt beyond a reasonable doubt.

The judgment is affirmed.