524 F2d 1262 United States v. Noles

524 F.2d 1262

UNITED STATES of America, Plaintiff-Appellee,
v.
Joey Michael NOLES, Defendant-Appellant.

No. 75-1951.

United States Court of Appeals,
Fifth Circuit.

Dec. 24, 1975.

John K. Hutcheson, Jacksonville, Fla. (Court appointed), for defendant-appellant.

John L. Briggs, U. S. Atty., John J. Daley, Jr., Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BELL and DYER, Circuit Judges, and MEHRTENS, District Judge.

PER CURIAM:

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1

Appellant was convicted of possession with intent to distribute marijuana. 21 U.S.C.A., Section 841(a)(1). We reverse for a new trial.

2

The Court in its charge asked the jury the question, "How many of you know that from marijuana you go to heroin, or all the dangerous drugs?" This question was in such context as to amount to testimony by the district judge as to a fact.1 It exceeded the bounds allowed a district judge under Quercia v. United States, 1933, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321. The fact adduced, that of the use of marijuana leading to the use of heroin and other dangerous drugs, was prejudicial error to the degree of depriving appellant of a fair trial.

3

The other assignments of error have been considered. They rest on matters which are not likely to recur on a new trial and are pretermitted.

4

Reversed and remanded for further proceedings not inconsistent herewith.

1

"You see how the language of the criminal charge, the indictment, follows the language of the prohibition set forth in the statute. Whatever your concept or belief with regard to the law relating to marijuana, there again is a test of whether you have taken your oath seriously. There are people who say, 'So what? Big deal, marijuana. If that fellow wants to smoke it, why not let him.'

"The point is the law makes it a crime to possess with intent to distribute. Everybody is smart, especially when they don't know the subject intimately. How many of you know that from marijuana you go to heroin, or all the dangerous drugs? Just because here and there there may be a person who knows how to control himself in the use of marijuana, does that call for the legions who have no more backbone with regard to control or self-indulgence than an eel? But regardless of your thinking, this is the law . . ."