Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
An indictment containing three counts charged defendants with violating the government narcotic laws. Count 1 charged that they purchased heroin from an unknown person, not in or from the original stamped package, in violation of Sec. 2553 (a), Title 26 U.S.C.Count 2 charged that they knowingly received, concealed, bought and facilitated the transportation and concealment after importation of heroin, knowing it to have been illegally imported in violation of Sec. 174, Title 21 U.S.C. The 3rd count charged that they conspired to commit the crimes alleged in counts 1 and 2, in violation of Sec. 371, Title 18 U.S.C.
Defendants pleaded not guilty, waived trial by jury, and were tried by the court. Both were found guilty on all counts. Serritella was sentenced to five years and Chiarelli to three years respectively, on each of the three counts of the indictment, the sentences to run concurrently. This appeal is from the trial court's judgment.
To reverse the judgment, defendants contend they were not proven guilty of the charges made in any or all of the counts of the indictment, and specifically that the government failed to make out a case warranting their conviction.
In their brief defendants say: "We are aware of the rule which requires that the evidence must now be reviewed in the light most favorable to the Government. Ackerson v. United States, 8 Cir., 185 F.2d 485. Also we realize that it will do the defendants no good to secure reversal as to only one or even two counts. If the Government has proved their guilt as to any one count, the sentence must stand. United States v. Hornstein, 7 Cir., 176 F.2d 217; Sugarman v. United States, 9 Cir., 35 F.2d 663."
The evidence for the government discloses that on or about January 28, 1950, police officers Wallace and Page, of the Narcotics Detail of Chicago Police Department, were in the vicinity of 41st Street and Calumet Avenue, in the City of Chicago, Illinois, looking for two men suspected of delivering packages containing narcotics and reported to be in that neighborhood driving a blue Oldsmobile automobile, carrying 1950 Illinois license No. 757658.
An automobile of such description, with Serritella driving and Chiarelli seated beside him, drove up in front of 4059 Calumet Avenue while the officers were waiting in their own car in close proximity. Chiarelli left the Oldsmobile carrying a package under his arm and started to walk across Calumet Avenue. Officer Wallace drove his car alongside the Oldsmobile and he and Page identified themselves as police officers. Officer Page followed Chiarelli as he crossed the street. Serritella drove his car into the side of the officer's car. To protect himself from injury, officer Wallace jumped back into his car. Chiarelli ran south on Calumet Avenue, and officer Page fired a shot in the air to halt him. But he continued to run, and was shot and wounded by officer Wallace while turning the corner at 41st Street and Calumet Avenue. Serritella fled from the scene in his Oldsmobile, pursued by officer Wallace, who was outdistanced, but later, on February 18, 1950, Serritella was apprehended in a tavern in the company of Chiarelli.
In his flight Chiarelli threw the package he was carrying into the street. The package contained heroin and did not bear the required federal tax-paid stamps. In the package two envelopes containing heroin bore fingerprint impressions of Serritella. The blue Oldsmobile was purchased and owned by Serritella under the name of Tony Capolo, and registered with the Secretary of State of Illinois under that name. Defendants did not testify, but evidence on an issue no longer in the case was presented in their behalf.
Motions to acquit defendants were denied and a judgment finding both defendants guilty was entered.
On behalf of Serritella, it is contended that the proof did not show that he had possession of the heroin in question. Willsman v. United States, 8 Cir., 286 F. 852; Henry Woo v. United States, 4 Cir., 73 F.2d 897, and Grantello v. United States, 8 Cir., 3 F.2d 117 are cited, without argument; the facts in those cases are not similar to the facts in the case before us. No argument is made here that under the evidence he did not have possession. The package containing the drug was in the Oldsmobile when the police officers drove alongside the car. The evidence showing his fingerprints on two envelopes, and his presence at the scene and participation in the happenings on January 28, 1950, in the vicinity of 4059 Calumet Avenue, was not controverted.
Sec. 2(a) of Title 18 U.S.C. provides: "Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal."
In United States v. Cohen, 2 Cir., 124 F.2d 164, 165, certiorari denied Bernstein v. U.S., 315 U.S. 811, 62 S. Ct. 796, 86 L. Ed. 1210, a narcotics case, it was said: "Under the first statute we have quoted it was only necessary to show possession of the narcotics to establish guilt and under the second statute, making an abettor a principal, it was not necessary that each of the defendants should have had the narcotics, but only that one or more of them had possession while the others aided in the illicit transaction to which that possession was incidental. United States v. Hodorowicz, 7 Cir., 105 F.2d 218, 220, certiorari denied, 308 U.S. 584, 60 S. Ct. 108, 84 L. Ed. 489; Vilson v. United States, 9 Cir., 61 F.2d 901."
It is apparent from this record that appellants were acting in concert in an illegal undertaking, and that the narcotics in ...