Cline v. United States

20 F.2d 494, 1927 U.S. App. LEXIS 2565

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 16, 1927
• Docket: 7613
• Status: Published

Opinions

LEWIS, Circuit Judge.

Cline, plaintiff in error, was convicted of the charge of selling ten grains of morphine to John Sivewright, and thereon sentenced to three years’ imprisonment in the penitentiary. The transaction and Cline’s connection therewith was brought about in this way: A government narcotic agent arrested one John E. Sivewright, without warrant, about 2 o’clock at night and took him to the agent’s office in Kansas City, where the agent interrogated Sivewright and then released him with instructions to report a.t the office the next morning at 10 o’clock. Sivewright testified that while he was at the agent’s office at night the agent said “he had it on me, evidence on me,” and that if I made a ease for him “he would turn me loose.” Sivewright further testified he went back the next morning at 10 o’clock and the agent talked to him again, that he told the agent he could not make the purchase, that he had been getting it up at Twelfth and Wyandotte from a chauffeur up there, hut the chauffeur had refused to sell to him three or four times and another man he had been buying it from was arrested a couple of days before that. He further testified that before he went to the narcotic agent at 10 o’clock he went to Louis Cline, whom he knew well and had been on friendly terms with for eight or nine years, and who at that time was salesman in a cigar store on the corner of Twelfth and Wyandotte Streets, and begged Cline to go to the chauffeur, who had a livery stand near the cigar store, and see if he could not buy morphine from the chauffeur for him. He pointed the chauffeur out to Cline. He told Cline he could not buy it from the chauffeur, that he was sick and he had to have it in order to work, that inasmuch as the chauffeur had a stand out in front of the cigar store Cline might talk to the chauffeur and get it for him, that he did this because the agent had told him he had to make a buy and he would then get turned loose; but ho did not state that to Cline as his reason for wanting to get the drug. He was crying when he talked to Cline. Cline had assisted him in other ways before that but he had never theretofore gotten any of the drug from Cline or through Cline. Cline testified that he had known Sivewright for eight or nine years, that they were friends and that he had helped Sivewright on different occasions, that Sivewright came to him at the cigar store on this morning sick and crying and said he had to go to work and he could not do it unless he got some morphine, that he told Sivewrigfit he ought to go to the hospital and take the cure, that Sivewright kept on begging him to get morphine for him. He said, “I will lose my job; lost a job a couple of weeks ago and I have been pretty well down. If you could get it for me you would help me out;” that he, Cline, repeatedly told Sivewright he would not do it but Sivewright pointed to the chauffeur standing on the corner and said, “I know you can get it,” and after Sivewright had pleaded with him for about a half-hour he told him he would see if he could get it from the chauffeur, and he told Sivewright to come back in the afternoon. Cline later went to the chauffeur and told him he wanted the morphine for a sick friend. He testified that Sivewright was a physical wreck, that he felt sorry for him and when he pointed out the chauffeur he decided to try to get it from him. He told Sivewright he would use his own money if he got it; he did not know whether he could get it from this chauffeur, or not. The chauffeur went down the street and came back in about a half-hour and gave Cline the morphine, for which Cline handed him five dollars. He further testified that he had never purchased or sold morphine on any other occasion, was not an addict and never had morphine in his possession except on this one occasion. When Sivewright left Cline that morning he told Cline to meet him in the toilet of a nearby pool-room when Sivewright should return in the afternoon. Sivewright went back to the narcotic agent when he left Cline. The narcotic agent gave Sivewright a marked five-dollar bill and at the appointed time in the afternoon the agent and a police officer followed Sivewright to the pool-room. They saw Sivewright and Cline go into the water closet and when they came out Cline was arrested and searched and the marked five-dollar bill found on his person. There is no contradiction of any of the testimony given by Sivewright and Cline in the particulars that have been Stated. The agent on his rebuttal testimony as to Sivewright’s physical condition did testify: “He didn’t look sick at all, outside of being a dope-fiend, a drug addict. You could tell it by his outward appearance, his eyes and so forth, but he wasn’t what you would ¿all sick. He had enough to keep him going.”-

There was no evidence that Cline had ever handled or furnished narcotic drugs to addicts, nor was it claimed that it had ever been reported that he had done so. He testified that he had not and that he got the drug for Sivewright because of SiveWright’s insistence and pleading and his friendship and sympathy for him, and for no other reason. Cline has a wife and two children, and he proved by several of his neighbors that he bore a good reputátion. His defense was that he had been entrapped into getting the drug for Sivewright.

W|e think the defense was completely and clearly made out and that the court erred in refusing to direct a verdict of not guilty on that ground, or else in not setting the verdict of guilty aside when it was returned. The court saw fit to submit the issue of entrapment to the jury, but, as we have said, the evidence on that defense sustains only one conclusion, i. e., the a'gent in using Sivewright entrapped Cline. Butts v. United States (C. C. A.) 273 F. 35, 18 A. L. R. 143; Meek v. United States (C. C. A.) 16 F.(2d) 568. Furthermore, while the court’s instruction ,to the jury on the subject of entrapment, given in general terms, correctly stated the law on that subject, its comments on the facts in relation thereto were not fair to the defendant. Only the facts that might have a tendency to weigh against the defendant were pointed out, — none that weighed in his favor were mentioned. If the court feels that it is under duty to review the facts for the purpose of aiding the jury in a correct understanding of them, it must do so in fairness to both litigants, and not state only the facts on One side of the issue; besides, the court in this case, in reviewing the facts favorable to the prosecution, came so dangerously near making an argument for a verdict of guilty that it cannot be said that was not its effect on the jury.

Reversed and remanded.