HONEYCUTT v. UNITED STATES, 277 F. 941

WOODS, Circuit Judge. The indictment charged that the defendant, on July 19, 1920, did— “unlawfully, willfully, and felonioxisly buy, receive, and have in Us possession, from Cecil Pearce and Tom Williams, knowing tbe same to- have been stolen, which had been stolen by Cecil Williams and Tom Pearce from a certain interstate shipment at Raleigh, N. C., on said date, from car S. S. W. 13828 in the possession of the N. S. Railroad Co., an interstate carrier, consigned from Liggett & Myers Tobacco Co., at Durham, N. C., to B.

Facenheimer, at Baltimore, Md., and other parties in other states, certain goods and chattels, which had been moving, and which were a part of, and which had constituted, an interstate shipment of freight or express, to wit, ten (10) cases of Chesterfield cigarettes.” Before his trial and conviction the defendant by petition asked for an order directing the return of certain goods and paid checks given by defendant, which had been seized under alleged illegal- search warrants. The goods , and checks were described in a

schedule attached to the petition. On the day of the trial, before it began, the court made an order finding that the goods and checks had been illegally seized and directing the return of goods and checks described in the order. The

schedule in the order specifying the goods, to be feturned did not contain “28% bolts of overall goods” nor “34 dozen bottles of Vick’s salve” mentioned in the petition. As no reason for the omission is suggested in the record or the briefs, we assume it was due to inadvertence. But, even if these articles were not returned, neither the omission of them from the order nor the failure to return them could have influenced the jury, for it does not appear that they were used in evidence.

The main error assigned is in allowing the district attorney to call on the defendant on cross-examination to produce checks, hand them to the defendant, and have him to identify them. As it is hardly possible to condense without misrepresentation, we copy from the record the agreed statement of the facts pertinent to the appeal: “After the United States had offered evidence to maintain the issues on its part, the defendant, to maintain issues upon his part, called as a witness A. J. Honeycutt, who, being duly sworn, testified, upon cross-examination by the district attorney, as follows: ~ “Testimony of A. J.

Honeycutt. . “On -direct examination defendant testified that he bought cigarettes and denim, and other things which were stolen from the cars of the railroad, and paid to. the parties, Cecil Pearce and Tom Williams, checks in part for same.

That (hey took the goods and carried them to his store at night, and he would receive them and pay them for the same. “It also appeared in evidence that the witnesses Cecil Pearce and Tom Williams had, before the trial entered pleas of guilty to an indictment charging the breaking and entry, and larceny of the property charged in the bill from an interstate train, and that their judgment and sentence upon the plea had been withheld pending the trial of this cause. “The defendant, A. ,T.

Honeycutt, testified that he had paid several checks to Cecil Pearce, Priestly Pearce, and Tom Williams in part payment for the cigarettes, tobacco, denim, harness, and other things which were carried to his store at night; that his store was in the country, and the goods were carried there around 10 and It o’clock at night in automobiles; that Cecil and Priestly Pearce were boys about 17 and 19 years of age and bad no means; that Tom Williams was a colored man, who was a jitney driver and had no means; that the defendant marked on the cheek given' Cecil Pearce and Tom Williams the words ‘for labor,’ but the checks were given for these materials. “The cross-examination then proceeded. “ ‘Q.

You say that, when Cecil and Tom went there with those cigarettes, you marked on the check “for labor”? A. Xcs; they said the officers were watching them; that they were not working anywhere. “ ‘Q. Which one of them did you give the check to? A. Cecil. “ ‘Q. Did you give both of the checks to Cecil? A. I don’t think I gave but one cheek. “ ‘Q. It was dated the 20th of July? A. I don’t remember the date. “ ‘Q. Where are the checks? A.

You have them.’ “Thereupon, the district attorney banded to the witness an envelope containing the checks which had been seized by the officers of the government from the possession of the defendant, and which had been ordered returned to the defendant by the court, and proceeded as follows: “ ‘Q.

Will you look in there and find the check that you gave him?’ “The defendant in apt time objected, which objection was sustained by the court. “By the Court; On Tuesday afternoon the defendant’s counsel filed a notice in writing to the government for the return of certain cheeks and other property and papers taken from the possession of the defendant by the officer under search warrant. See Record. The court stated that it would sign an order directing the return of the checks, to which no objection was made by the district attorney.

Wednesday morning the district attorney handed to counsel for the defendant an envelope containing checks and other papers referred to in the notice, together with receipts requesting the counsel to sign the receipt; they stated that they desired to check over the papers before signing the receipt. The court postponed further examination until defendant’s counsel have opportunity to check up the papers and give receipt to the dislrict, attorney. “The defendant rests. “On Thursday morning, the district attorney having on Wednesday reserved the right to continue the cross-examination of the defendant A. J.

Honeycutt, Hie defendant again took the witness stand for further cross-examination, and testified as follows: “ ‘Q. Have you examined that envelope?’ “The court finds as a fact from an inspection of the record that before the trial began the defendant filed notice for the return of his checks, seized by the officers; that the notice was in writing', and the court ordered the return of the papers to the defendant, the said papers having theretofore, been in the possession of and inspected by the district attorney.

Whereupon, the defendant having before him upon the witness stand the checks and papers handed him by the district attorney, the district attorney proceeded as follows: S“Q. Have you examined these papers? A. Yes, “ ‘Q. Did you find any cheeks in there payable to Cecil Pearce?’ “The defendant in apt time objected, which objection was overruled by the court, and the defendant in apt time excepted, which is defendant’s exception No. 2. “ ‘A. Tes.’ “The defendant in apt time objected, which objection was overruled by the court and the defendant excepted, and this is defendant’s exception No. 3. “ ‘Q.

Tou stated on yesterday that you gave him a cheek for $133. Will you show us that cheek?” “The defendant in apt time objected, which objection was overruled by the court, and the defendant excepted, and this is defendant’s exception No. 4. “ ‘A. I reckon so.’ “Court: The district attorney thereupon hands to the witness the bundle of papers which were seized by the officers, and which had been returned to the defendant, and asked him to find that check. “ ‘Q. I want you to find the check dated July 20, 1920, for $133, payable to C. E.

Pearce?’ “The defendant in apt time objected, which objection was overruled by the court, and the defendant excepted, which is defendant’s exception No. 5. “ ‘A. This is it.’-” A number of other checks were introduced in response to similar questions. It seems clear that the court erred in admitting for any purpose the checks illegally seized in the execution of a search warrant and ordered returned to the defendant. Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann.

Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 315; Honeycutt v. United States, 277 Fed. 939 (filed November 17, 1921). But it seems equally clear that the error was harmless, in that the introduction of the checks added nothing to the probative force of the evidence already adduced.

The statement copied from the record shows that the defendant testified without objection to the purchase of the stolen goods late at night from boys, who carried them to his country store in the automobile, to the giving of checks for the purchase money, and to writing on the face of the checks “for labor.” The checks themselves evidence nothing whatever that the defendant had not already testified to, and added nothing to the force of the evidence already adduced against him. A judgment should not be reversed, on appeal, for error which could not have affected the result. Lancaster v. Collins, 115 U.

S. 222-227, 6 Sup. Ct. 33, 29 L. Ed. 373; Judicial Code, § 269 (Comp. St. Ann. Supp. 1919, § 1246); Dye v. United States (C. C. A.) 262 Fed. 6; Sneierson v. United States (C. C. A.) 264 Fed. 268. Affirmed.