RIVES, Circuit Judge.
Lavonne Newsom and Travis Dale Linton were jointly indicted on two counts,
Upon appeal Newsom urges that the district court erred: 1) in denying his motion for mistrial; 2) in admitting the testimony of the government chemist; 3) in denying his motion for judgment of acquittal; 4) in denying his motion and supplemental motion for new trial.
1. Motion for mistrial.
Each defendant having pleaded not guilty, the case was called for trial against both. During the questioning of the panel by the district judge, one of the prospective jurors, Sidney Edwin Anderson, "when asked if he knew either of the defendants, stated in open court and in the presence of the whole panel that he knew one of the defendants, and that he knew him when he, the prospective juror, Sidney Edwin Anderson, was with the Police Department, volunteering further, that under the circumstances of his knowledge, that he had handled him while he was in the Police Department."
The impaneling of the jury was recessed and, out of the presence of the jury, each of the defendants moved for a mistrial and objected to being tried before a jury selected from that panel on the ground that the statement was so highly prejudicial that the defendant could not get a fair trial.
The following colloquy ensued:
The trial proceeded against Newsom alone.
If the district court had permitted counsel to explain the extent to which Newsom's guilt or innocence depended on his knowledge that Linton was engaged in a criminal sale of marijuana, we think that it must have held that Anderson's statement was almost as prejudicial to Newsom as it was to Linton. While it seems to us probable that Newsom was prejudiced by Anderson's statement, so much discretion is vested in the district court as to whether to place a defendant upon trial before a jury selected from a particular panel, that we do not think a reversal would be warranted if this ruling stood alone.
2. Admissibility of testimony of Government chemist.
The substance was delivered to Mr. Fenlaw, the special employee, in a brown paper bag, introduced as Government Exhibit No. 1. Fenlaw and Agent English of the Narcotics Bureau placed their initials on the bag, and Agent English kept it in view from the time of its delivery to Fenlaw until it and its contents were placed in a wrapper on which English also placed his initials, and then delivered it to the chemist. The chemist initialed the wrapper and testified about the substance contained in the wrapper, introduced as Government Exhibit No. 2. Clearly, the substance was sufficiently traced notwithstanding the chemist's inability to identify the brown paper bag.
3. Motion for judgment of acquittal.
In addition to the chemist, only two witnesses testified for the government — Fenlaw, the "special employee" referred to in the indictment, and Agent English.
Fenlaw testified that he had never been arrested for narcotics, but had smoked
After Fenlaw's conversation with Linton, he went back to Agent English. Newsom followed Linton out to the automobile in which they had arrived. Agent English gave Fenlaw a "quick search" and handed him $125.00 of government money. Fenlaw went on to the automobile in which Newsom was then seated behind the steering wheel, with Linton in the middle of the front seat. Fenlaw got in on the right-hand side next to Linton. Linton reached under the right-hand seat, picked up the brown paper bag, and handed it to Fenlaw, who in turn handed Linton the $125.00
Fenlaw testified in general terms that all three occupants of the automobile engaged in a conversation concerning the marijuana. When asked to relate the conversation, he testified, "I don't remember word-for-word." He never did testify to any specific thing said to or by Newsom. Linton told him "there was a pound there, and if there was any shortage, let him know." He did not contact Newsom further, but did go to see Linton about a shortage in the marijuana — "It was about a quarter short." Linton didn't make it all good, but did give him some more marijuana. It was not until February 1, 1962, two and a half months after the transaction of December 15, that a warrant was issued for the arrests of Linton and Newsom.
Agent English testified that while he and Newsom were seated together in the waffle house, he engaged Newsom in conversation "designed to determine how much he might have to do with the transaction which, as far as I knew, was impending * * * but his only comments were, I believe, something relative to the weather * * *." Agent English did not observe whether Newsom was drinking or not. He observed the special employee in the automobile with Linton and Newsom, and knew that they were in the automobile for "several minutes."
The defendant Newsom testified as a witness in his own behalf. He was 28 years of age, a machinist by trade employed at a machine shop in Dallas. He was close with Linton's brother, and through him had met Linton about five years before December 1961. On the night of December 14, 1961, he had been to Guthrey's Club about three hours and had had several beers. While there, Linton approached him and asked to borrow his car. He refused that, but told Linton he would take him where he wanted to go. They drove by Linton's house and then to the waffle house.
Newsom denied any knowledge of any marijuana transaction. He testified that the special employee was in the car with him and Linton "not over a minute," that he saw Linton reach under the seat of the car and get something, but did not hear him say that it was a pound of marijuana and did not know that it was marijuana. He denied having paid any attention to the conversation between the special employee and Linton, testifying, "I seen a transaction but I couldn't swear
A character witness testified that Newsom worked for him for several years, he entrusted large sums of money to Newsom, and his reputation for truth and veracity was good. The Government did not attack Newsom's reputation or character.
The evidence was thus clear that it was the co-defendant Linton who actually sold and delivered the marijuana to Fenlaw and with whom Fenlaw had his subsequent dealings about the shortage. Fenlaw's testimony about the conversation and occurrence while he and Linton and Newsom were together in Newsom's car is the only direct evidence of Newsom's guilty knowledge of the marijuana. But for that testimony, the circumstances would be equally consistent with Newsom's explanation that he was simply transporting Linton as a favor. Fenlaw's testimony as to that occurrence and conversation was in such vague and general terms insofar as it concerned fastening guilty knowledge of the marijuana upon Newsom that there might be considerable doubt whether the jury could properly and reasonably find that the evidence excluded every reasonable hypothesis except that of guilt.
4. Motion for new trial.
On June 20, 1962, within five days after he was convicted and sentenced, Newsom filed a motion for new trial. On June 28, he filed an amended or supplemental motion based on claimed newly discovered evidence. To that motion was attached a certified copy of the proceedings, also on June 20, after Linton had entered a plea of guilty to the indictment. When asked by the court whether there was anything he wanted to say, Linton replied, inter alia: "I just feel sorry that it's happened because I've brought in some innocent people into it and gotten them hurt too. My friend Newsom, he wasn't — he had no knowledge of what I was doing that night and I got him in trouble because of it, and I'm sorry for it."
Attached to the supplemental motion was also an affidavit from Linton in which he swore:
An affidavit from Fred Bruner, Esquire, Linton's attorney, was also attached in which Mr. Bruner testified:
The record reveals that at the beginning of Newsom's trial, Linton was sworn as a witness at the request of both the government and the defendant Newsom, but that Linton was never placed on the stand.
Seldom indeed will this Court reverse a district court for refusing to grant a new trial.
Reversed and remanded.