VAUGHT, District Judge.
The defendant appeals from a conviction under three counts of an indictment which charged possession of spirituous intoxicating liquor, transportation of whisky, and the sale of whisky to William E. Houston, all on April 20, 1931, at 1029 East Archer street in the city of Tulsa, Old. The fourth count charges possession of home-brew on April 29, 1931, at 708% North Quincy street in that city.
The defendant moved to suppress the evidence under count 4 because of an unlawful seizure. However, the ruling on the motion was postponed until the trial of the ease, when the fourth count was dismissed. Two of the assignments of error are relied upon for reversal; and they are: (1) That the trial court admitted evidence of other offenses; and (2) that the Assistant United States Attorney used language in his argument equivalent to an assertion that the defendant did not testify in his own behalf.
1. The evidence supporting the first three accusations should be noticed. The witness Houston testified to the purchase of whisky from the defendant on April 20th. On that day, he said: “I bought two gallons of whis-ky from Ured Hood, the deal being made by me calling him over the telephone and ordering it. I knew I could call him over the ’phone and buy whisky because he had [154]*154been at my house and told me to * * * he told me at any time I wanted one or two gallons I could call him. He gave me his telephone number but I do not remember the number now. * * * The whisky was delivered to me on the 20th of April and I was arrested about fifteen minutes after the whisky was delivered. I was arrested by officers Jack Stegall and W. F. Jones of the City of Tulsa.” He also said that he advised the officers of his arrangement with Fred Hood.
Officer Stegall testified, referring to Houston: “He furnished me with the telephone number which I called. I told the party answering the ’phone I wanted him to meet me at three. That was the way I was given to specify the time of the day instead of the number of gallons. He said, ‘In a few minutes.’ * ® * At the time I called the telephone number a man’s voice answered the ’phone. I asked for Fred and this voice says, ‘Yes,’ I said, ‘Can you come at three?’ And he said, ‘In a few minutes.’ The name I gave when I was talking over the ’phone was Houston. At the time I was at the police station. ® * * I later found out the number given me was Fred Hood’s number. * * * I verified this from the telephone office.”
The officer Stegall testified he took the number Houston gave him which was Hood’s house, called for three gallons of whisky by code to be delivered at. Houston’s home, and Strickland drove up in a car belonging to ■Hood’s mother with the three gallons of whis-ky-
The witness Spargher testified to the transactions of which appellant complains. He stated he purchased of defendant a pint of whisky and two or three bottles of home-brew about ten days prior to April 29th, on which later date the defendant was arrested by the officers. The witness also fixed the date as maybe three or four weeks before the arrest. He further stated that on April 29th he had some negotiations with the defendant in which he told defendant he wanted a pint of liquor, but did not recall the defendant’s answer, and at that point the officers came upon the scene. The inquiry presented is whether these transactions were erroneously admitted in evidence.
In this ease, the questioned evidence had a close relation to the charges laid in the indictment. The first transaction related by Spargher certainly tends to establish the alleged possession of intoxicating liquor on April 20,1931. If about or before that date the defendant was selling whisky and home-brew to Spargher, it reasonably tends to show he possessed and had on hand a supply of whisky on April 20th. The second transaction of April 29th, in which there were the negotiations for a sále, was but ten days later. It bore materially on the charge that he had possessed whisky oh April 20th.
It is a general rule that, in a prosecution for a particular crime, other independent offenses are irrelevant and inadmissible. Coulston v. United States (C. C. A.) 51 F.(2d) 178; 16 C. J. 586. But there are exceptions to the rule. One of them was stated in Doyle v. United States (C. C. A.) 33 F.(2d) 265, 266, to occur where the other offenses ‘‘are so related to the main issue, or are part of the surrounding circumstances in respect to time and character, as to aid in its solution,” and it was added, “considerable discretion is allowed the trial judge in deciding whether such evidence tends in some degree, at least, to corroborate the other evidence.” In Grantello v. United States (C. C. A.) 3 F.(2d) 117, 119, it was held that like offenses were inadmissible against a defendant “where no question of his intent is in issue,” and “no connection between such offenses and those charged is proved.”
In the case of Petroff v. United States (C. C. A.) 13 F. (2d) 453, a different and subsequent transaction occurring ten days later was ruled tó be inadmissible as tending to show a propensity to commit crimes of the same or a different class, but not too remote in tending to show, in connection with the facts and circumstances, that defendant was on the prior date engaged in possession and selling liquor, and had the equipment and means for so doing, and it was said -to aid in determining the truth of the transaction charged. In Myers v. United States (C. C. A.) 49 F.(2d) 230, the discovery of liquor in defendant’s possession one day after the date of the charge was held admissible to corroborate the direct evidence that he was engaged in the liquor traffic; and the Petroff Case was cited as a precedent.
In Johnston v. United States (C. C. A. 9) 22 F.(2d) 1, 5, the court says: “The general rule is unquestioned that,, when' a defendant is put on trial for one ofirense, evidence of a distinct offense unconnected with that laid in the indictment is not admissible. While this is the general rule, the exceptions are so numerous that it has been said: ‘It is difficult to determine which is the more extensive, the doctrine or the acknowledged exceptions.’ * * * It does not apply where the evidence of the other offense-directly tends [155]*155to prove the crime charged in the indictment * » or when it is so connected and intermingled with the crime charged as to form one entire transaction, and proof of one involves proof of the other.”
And the court further says: “Evidence which is relevant is not rendered inadmissible because it proves or tends to prove another and distinct offense.”
In Moore v. United States, 150 U. S. 57, 14 S. Gt. 26, 37 L. Ed. 996, the court makes the following comment: “When the tendency of testimony offered in a criminal case is to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appears that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused in the minds of the jurors.”
And the court further holds: “We think it was within the discretion of the court to admit the testimony in dispute of Kitty Young. As intimated in the case of Alexander v. U. S., 138 U. S. 353, 11 S. Ct. 350 [34 L. Ed.
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VAUGHT, District Judge.
The defendant appeals from a conviction under three counts of an indictment which charged possession of spirituous intoxicating liquor, transportation of whisky, and the sale of whisky to William E. Houston, all on April 20, 1931, at 1029 East Archer street in the city of Tulsa, Old. The fourth count charges possession of home-brew on April 29, 1931, at 708% North Quincy street in that city.
The defendant moved to suppress the evidence under count 4 because of an unlawful seizure. However, the ruling on the motion was postponed until the trial of the ease, when the fourth count was dismissed. Two of the assignments of error are relied upon for reversal; and they are: (1) That the trial court admitted evidence of other offenses; and (2) that the Assistant United States Attorney used language in his argument equivalent to an assertion that the defendant did not testify in his own behalf.
1. The evidence supporting the first three accusations should be noticed. The witness Houston testified to the purchase of whisky from the defendant on April 20th. On that day, he said: “I bought two gallons of whis-ky from Ured Hood, the deal being made by me calling him over the telephone and ordering it. I knew I could call him over the ’phone and buy whisky because he had [154]*154been at my house and told me to * * * he told me at any time I wanted one or two gallons I could call him. He gave me his telephone number but I do not remember the number now. * * * The whisky was delivered to me on the 20th of April and I was arrested about fifteen minutes after the whisky was delivered. I was arrested by officers Jack Stegall and W. F. Jones of the City of Tulsa.” He also said that he advised the officers of his arrangement with Fred Hood.
Officer Stegall testified, referring to Houston: “He furnished me with the telephone number which I called. I told the party answering the ’phone I wanted him to meet me at three. That was the way I was given to specify the time of the day instead of the number of gallons. He said, ‘In a few minutes.’ * ® * At the time I called the telephone number a man’s voice answered the ’phone. I asked for Fred and this voice says, ‘Yes,’ I said, ‘Can you come at three?’ And he said, ‘In a few minutes.’ The name I gave when I was talking over the ’phone was Houston. At the time I was at the police station. ® * * I later found out the number given me was Fred Hood’s number. * * * I verified this from the telephone office.”
The officer Stegall testified he took the number Houston gave him which was Hood’s house, called for three gallons of whisky by code to be delivered at. Houston’s home, and Strickland drove up in a car belonging to ■Hood’s mother with the three gallons of whis-ky-
The witness Spargher testified to the transactions of which appellant complains. He stated he purchased of defendant a pint of whisky and two or three bottles of home-brew about ten days prior to April 29th, on which later date the defendant was arrested by the officers. The witness also fixed the date as maybe three or four weeks before the arrest. He further stated that on April 29th he had some negotiations with the defendant in which he told defendant he wanted a pint of liquor, but did not recall the defendant’s answer, and at that point the officers came upon the scene. The inquiry presented is whether these transactions were erroneously admitted in evidence.
In this ease, the questioned evidence had a close relation to the charges laid in the indictment. The first transaction related by Spargher certainly tends to establish the alleged possession of intoxicating liquor on April 20,1931. If about or before that date the defendant was selling whisky and home-brew to Spargher, it reasonably tends to show he possessed and had on hand a supply of whisky on April 20th. The second transaction of April 29th, in which there were the negotiations for a sále, was but ten days later. It bore materially on the charge that he had possessed whisky oh April 20th.
It is a general rule that, in a prosecution for a particular crime, other independent offenses are irrelevant and inadmissible. Coulston v. United States (C. C. A.) 51 F.(2d) 178; 16 C. J. 586. But there are exceptions to the rule. One of them was stated in Doyle v. United States (C. C. A.) 33 F.(2d) 265, 266, to occur where the other offenses ‘‘are so related to the main issue, or are part of the surrounding circumstances in respect to time and character, as to aid in its solution,” and it was added, “considerable discretion is allowed the trial judge in deciding whether such evidence tends in some degree, at least, to corroborate the other evidence.” In Grantello v. United States (C. C. A.) 3 F.(2d) 117, 119, it was held that like offenses were inadmissible against a defendant “where no question of his intent is in issue,” and “no connection between such offenses and those charged is proved.”
In the case of Petroff v. United States (C. C. A.) 13 F. (2d) 453, a different and subsequent transaction occurring ten days later was ruled tó be inadmissible as tending to show a propensity to commit crimes of the same or a different class, but not too remote in tending to show, in connection with the facts and circumstances, that defendant was on the prior date engaged in possession and selling liquor, and had the equipment and means for so doing, and it was said -to aid in determining the truth of the transaction charged. In Myers v. United States (C. C. A.) 49 F.(2d) 230, the discovery of liquor in defendant’s possession one day after the date of the charge was held admissible to corroborate the direct evidence that he was engaged in the liquor traffic; and the Petroff Case was cited as a precedent.
In Johnston v. United States (C. C. A. 9) 22 F.(2d) 1, 5, the court says: “The general rule is unquestioned that,, when' a defendant is put on trial for one ofirense, evidence of a distinct offense unconnected with that laid in the indictment is not admissible. While this is the general rule, the exceptions are so numerous that it has been said: ‘It is difficult to determine which is the more extensive, the doctrine or the acknowledged exceptions.’ * * * It does not apply where the evidence of the other offense-directly tends [155]*155to prove the crime charged in the indictment * » or when it is so connected and intermingled with the crime charged as to form one entire transaction, and proof of one involves proof of the other.”
And the court further says: “Evidence which is relevant is not rendered inadmissible because it proves or tends to prove another and distinct offense.”
In Moore v. United States, 150 U. S. 57, 14 S. Gt. 26, 37 L. Ed. 996, the court makes the following comment: “When the tendency of testimony offered in a criminal case is to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appears that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused in the minds of the jurors.”
And the court further holds: “We think it was within the discretion of the court to admit the testimony in dispute of Kitty Young. As intimated in the case of Alexander v. U. S., 138 U. S. 353, 11 S. Ct. 350 [34 L. Ed. 954], where the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the eonduci of a, particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear’ that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused in the minds of the .jurors. There are many circumstances connected with a trial, the pertinency of which a judge who has listened to the testimony, and observed the conduct of the parties and witnesses, is better able to estimate tbe value of than an appellate court, which is confined in its examination to the very words of the witnesses, perhaps imperfectly taken down by the reporter.” See, also, Astwood v. United States (C. C. A.) 1 F.(2d) 639; Brown v. United States (C. C. A.) 265 F. 623; Hosier v. United States (C. C. A.) 260 F. 155; Lueders v. United States (C. C. A.) 210 F. 419.
Our conclusion is that, under the circumstances shown in this ease, it was not error to receive the evidence in question.
2. The prosecuting attorney 'was forbidden to comment in his argument on the fact that the defendant did not testify in the ease. It was the privilege of the defendant to be a witness, but his failure so to do created no presumption against him. Title 28, c. 17, § 632, ü. S. Code (28 USCA § 632). If the .prosecuting attorney mado such comment and it was not condemned by the court, it was reversible error. Wilson v. United States, 149 U. S. 60, 13 S. Ct. 765, 37 L. Ed. 650. But tee statement of the prosecuting attorney was only that Spargher testified he bought whisky and home-brew of the defendant, and ho added: “Who says he didn’t do it? Who denies — .” This is not tantamount to an assertion that the defendant did not testify to a denial of the transactions. To so construe the remarks, it must have been plain that only the defendant could have disputed the testimony for the government. Shea v. U. S. (C. C. A.) 251 F. 440; Slakoff v. United States (C. C. A.) 8 F.(2d) 9. But it does not appear that no other testimony was available to contradict the witness. On this record, we are of the opinion that this assignment is not well taken.
The judgments in this ease should be, and are, affirmed.