Hastings, Chief Judge, and Schnackenberg, Circuit Judge, and Grubb, District Judge.
Willie Oliver, defendant-appellant, appeals from his conviction, upon a verdict of guilty after trial by the district court, on all counts of a six-count indictment charging unlawful reception, concealment, purchase, and sale of narcotics, and facilitation of narcotics transportation, and assault on narcotics agents who were performing their official duties, in violation of 21 U.S.C.A. § 174, 26 U.S.C.A. § 4705(a), and 18 U.S.C.A. § 111.*fn1
The sufficiency of the evidence to support the verdict is not challenged on appeal. As error, Oliver primarily assigns the refusal of the trial court to dismiss the indictment and to exclude certain evidence obtained through alleged violation of Oliver's constitutional rights.
The facts relevant to the contentions on this appeal are as follows. Upon being informed that he was under arrest for violation of federal narcotics laws, Oliver fled. A federal agent pursued him, but Oliver resisted arrest, scuffled with the agent, and ran away a second time. As Oliver ran, another agent confronted him and attempted to stop him, but Oliver assaulted him. Oliver broke away, but was subdued by a third agent.
Charges were brought against Oliver before the United States Commissioner on October 27, 1965. The Commissioner ordered his temporary commitment and set bail at $10,000. The following day an attorney was appointed for Oliver, and, on motion of Oliver to reduce bond, a district court judge reduced Oliver's bond to $1,000, with the special condition that Oliver report periodically to his court-appointed counsel.
On November 4, 1965, following the return of the grand jury indictment against Oliver, another judge of the district court issued a bench warrant for Oliver and fixed his bond at $50,000.
Since he could not meet his new bond, Oliver, on November 8, 1965, moved for reduction of bail. The judge, impressed by the fact that Oliver had violently resisted arrest and that he might, therefore, have violent proclivities, refused to reduce bail; but, in view of the preventive detention thus imposed, the judge also advanced the date of trial, which was held on November 15, 1965.
During Oliver's first commitment to jail on October 27, 1965, jail officials obtained information from Oliver for the purpose of filling out a routine history card. The information elicited from Oliver and entered on the card revealed that Oliver was a user of narcotic drugs, that he had used such drugs since he was seventeen, and that he had needle marks on his arm.
While Oliver was in jail following his second commitment, upon failure to meet the higher bail set for him, he was treated by a nurse employed by the jail. The nurse opened a jail hospital record for Oliver and entered on it the fact that Oliver was an addict and that he was given a drug to ease withdrawal symptoms.
This information, together with the jail record information concerning the use of drugs, was introduced by the Government at the trial, on rebuttal, after Oliver in his testimony on cross-examination denied addiction to and use of heroin.
At the trial on November 15, 1965, Oliver moved to dismiss the indictment on the ground that it was constitutionally void because the members of the grand jury returning the indictment were required, by means of their oath, to state a belief in God. This motion was denied. Oliver then waived trial by jury.
During the trial, Oliver testified that he had never been arrested or convicted of any narcotics violations and that he had never been involved in narcotics violations prior to the date of the narcotics sale for which he was indicted.
On cross-examination, the Government asked Oliver, over objection, whether he was an addict or had ever used heroin. Oliver denied ...