Ezzard v. United States , 7 F.2d 808 ( 1925 )

LEWIS, Circuit Judge.

After trial and verdict of guilty defendant, plaintiff in error here, was sentenced to imprisonment and to pay a fine for violation of section 1 of the Act of December 17, 1914 (38 Stat. 785), as amended by the Act of February 24,1919, § 1006 (40 Stat. 1130 [Comp. St. Ann. Supp. 1919, § 6287g]). The indictment charged that defendant did “unlawfully, knowingly, willfully and feloniously deal in certain derivatives of opium and coco leaves, to wit, about one hundred five (105) ounces morphine sulphate and three (3) ounces cocaine hydrochloride, without having registered with the Collector of Internal Revenue for the District of Oklahoma and paid the special tax as required by the Act of Congress of December 17, 1914, as amended by sections 1006 and 1007 of the Revenue Act of 1918; the said W. T. Ezzard then and there being a wholesale dealer in morphine and cocaine and a person required to so register and pay said special tax as aforesaid.”

At the timo of his arrest by police officers defendant had in his automobile a trunk in which were the drugs named in the indictment. He had just gotten the trunk from the Santa Fé Railway station in Oklahoma City, under circumstances hereinafter stated. There was no evidence, direct or indirect, that Ezzard was then or ever had been a wholesale dealer in narcotic drugs, other than the fact that the trunk in his possession contained morphine and cocaine. He had not registered and paid the tax, but if not a dealer he was under no duty to do so. Section 1 of the act on which the indictment is based defines a wholesale dealer and the crime charged thus:

“Every person who sells or offers for sale any of said drugs in the original stamped packages, as hereinafter provided, shall be deemed a wholesale dealer. * * * It shall he unlawful for any person required to register under the provisions of this act to import, manufacture, produce, compound, sell, deal in, dispense, distribute, administer, or give away any of the aforesaid drugs without having registered and paid the special tax as imposed by this section.”

Section 8 of the act (Comp. St. § 6287n) provides that possession or control of the drug shall be presumptive evidence of a violation of the provisions of section 1 of the act. This is but a declaration of a rule of evidence, which doubtless would have been applied by the court without legislative enactment. In Insurance Co. v. Weide, 11 Wall. 438, 441 (20 L. Ed, 197), it is said:

“A presumption is an inference as to the' existence of a fact not actually known, arising from its usual connection with another which is known.”

There was no proof that Ezzard was a wholesale dealer; and, in order to sustain the verdiet of guilty, it was and is necessary to infer that the defendant was a wholesale dealer from the proven fact that he had possession of the drugs. That inference or presumption is rebuttable, defendant’s possession or control may have" been innocent and not for the criminal, purpose charged. The statute here, as the one construed in Beander v. Barnett, 255 U. S. 224, 41 S. Ct. 271, 65 L. Ed. 597, "is not intended to include and make criminal a possession which is not conscious and willing.” Presumptive evidence is said to be indirect or circumstantial evidence. Best on Evidence (Morgan’s Ed.) §§ 27, 293. Starkie on Evidence, vol. 1 (7th Amer. Ed.) side p. 558: “Circumstantial, or, as it is frequently termed, presumptive evidence, is any which is not direct and positive.”

Against the case thus made by the prosecution, resting on the presumption or inference that Ezzard was a wholesale dealer, he offered uncontradicted proof that he went for the trunk as an accommodation and had no knowledge or information as to its contents, and he thus claimed that the presumption was rebutted and overthrown. In substance he and his witnesses, all unimpeached and ■ uneontradicted, testified to these facts: He was a farmer residing twenty miles or more from Oklahoma City. While at breakfast one morning about 6:30 a- real estate agent in the city, who had in hand for Ezzard a transaction in real estate, telephoned him to come to Oklahoma City at once in connection with that transaction. Without that call he would not have gone to the city. On his way he crossed the Canadian river. A bridge was being constructed at that point and there were tents anil temporary buildings for the use of the men employed there. Ezzard stopped after crossing the river on account of some trouble with his automobile, and got out to fix it. A woman came to him from the direction of the tents and asked him if he would bring back with him a trunk at the Santa Fé Railway station, which she said belonged to one of the boys in the camp. He consented to do so, and she gave him a cheek for the trunk. When he reached the city he went.first to the real estate agent’s office, then to a bank which had some interest in the real estaté transaction, and then to the Santa Fé station. There he surrendered the cheek, obtained the trunk and put it in his automobile. The check ,had been issued by the New York Central Railway at New York City. Ezzard had never been in New York City, nor out of Oklahoma for several years. The trunk had become unlocked, and it was discovered before Ezzard came for it that it contained the drugs. It was watched and when Ezzard started away with it he was followed by policemen in another automobile. After he had gotten about five miles out of the city on his way home they stopped him, arrested him, took him and his automobile back to the city and placed him in jail. They asked him when they arrested him about the trunk, and he told them he was taking it to a woman at thé bridge, and insisted that they go with him there for the purpose of verifying his statement. They declined to do so. He was released from custody a day or so later, but was then unable to find the woman. He made several visits to the bridge camp for that purpose, and was told by the keeper of the commissary and by the ferryman that a woman had been there, but she had gone away. He testified that he had never had anything to do with narcotics and would not have known what the drugs were if he had seen them; that he did not know they were in the trunk; had no knowledge of its contents. Another witness, who crossed the river at the same place earlier in the morning than Ezzard crossed it, testified that a woman there asked him if he would bring a trunk out from Oklahoma City for her; that he was in a hurry and declined to do so. A deputy sheriff testified that two women whose father lived in the vicinity of the river crossing were in and out of that neighborhood from time to time; that he had arrested them on several oeassions, once for being implicated in the theft of an automobile, once for being drunk, and for other disreputable conduct; .that he knew they were users of narcotics and that both of them were known as “dope-heads.” Their father’s name- is Lawrence. One of the women had been convicted of .selling narcotics. The real estate agent in Oklahoma City corroborated the testimony of Ezzard that he came to the city that morning in response to a telephone call from him in connection with a real estate transaction, and the banker testified that he came to the bank on the. same transaction. Several of Ezzard’s neighbors testified to Ms g'ood reputation as a law-abiding citizen. The agent at the Santa Pé station who delivered the trunk to Ezzard testified that ho asked him where it was going, and Ezzard said to Newcastle, which is the river crossing, and that he was hauling it for a Mrs. Smith. Ezzard denied that ho told the agent that the trunk was for Mrs. Smith; he testified that ho did not know her name and that she did not say the trunk was hers. He lived about twelve miles from the bridge.

Presumptions or inferences of fact are not evidence, they are the result of evidence, and are raised on circumstances to supply tbe place of actual proof; when substantial proof is made contrary to the faet presumed, the presumption is rebutted. In civil cases they may sometimes fix the onus prohandi, but not so in criminal on the main issue. There, on a plea of not guilty, the burden and quantum of proof to establish the corpus delicti and defendant’s guilt never shifts. Lilienthal’s Tobacco v. United States, 97 U. S. 237, 266, 267, 24 L. Ed. 901; Davis v. United States, 160 U. S. 469, 487, 40 L. Ed. 499. Where possession is the offense charged, the corpus deliciti, and defendant’s possession is shown, a verdict of guilty will stand in the absence of proof establishing an innocent possession. Feinberg v. U. S. (C. C. A.) 2 F.(2d) 955. But the writer is of opinion that a prima facie case is unknown in criminal procedure. In no condition of proof is it permissible to instruct a jury that it had become the duty of defendant to establish his innocence to obtain an acquittal. The principle is clearly expressed in Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360, approved in Davis v. U. S., supra, thus:

“The law clothes the accused with a presumption of innocence which he never loses until a verdict of conviction has been pronounced. Ho pleads nothing affirmatively, save in rare and exceptional instances, hut by Ms plea of not guilty he puts upon the state the burden of establishing every faet necessary to constitute guilt. The changing phases of the evidence may make his case at various stag’es wear various aspects. At one moment it may seem that his guilt has been conclusively shown, and at the next it may appear to have been as conclusively negatived; hut Ms own attitude never changes. To every fresh development and every new circumstance ho repeats his plea of not guilty and in every new complication he rests upon Ms legal presumption of innocence. The testimony offered against him may indeed necessitate the production of something on Ms part to meet the ease as made out; but it can never do this until, uncontradicted and unexplained, it has demonstrated his guilt beyond a reasonable doubt. Shall it be said that, because this has been accomplished at somé particular stage of the testimony, the burden of proof has shifted, ail'd thence forward the duty is imposed upon him of re-establishing his innocence beyond all reasonable doubt? Nobody would venture so to assert, if the demonstration of guilt so made out was in regard to the commission of the act. * * *

The presumptions or implications which, in criminal cases, the law deduces from the establishment of particular facts, have no other force than to dispense with further proof of the thing presumed, unless something in the testimony, either theretofore or thereafter offered, suggests a doubt of the existence of the presumed fact. But the moment that doubt is engendered in reference to it, if it he as to a faet necessary to conviction, the state must establish the faet independently of the presumption; and the obligation to do this rests continuously upon her.”

In a civil ease, Fresh v. Gilson, 16 Pet. 327, 331 (10 L. Ed. 982), it is said:

“But presumptions can stand only whilst they are compatible with the conduct of those to whom it may be sought to apply them; and still more must give place, when in conflict with clear, distinct and convincing proof.”

In Erhart v. Dietrich, 118 Mo. 418, 24 S. W. 188, the defense to an action on a note was that it was found in the hands of the maker after the payee’s death, who was tho father of the maker, and after it was due, which raised the presumption that it had been paid. The court said:

“In this case there is no pretense of a gift causa mortis, and the circumstances surrounding the acquisition of the possession, and the uncontradicted evidence of the father’s mental weakness amply rebut the presumption of payment,. To indulge such a presumption under these circumstances would establish a dangerous rule.”

In State v. Jones, 64 Iowa, 349, 17 N. W. 911, there was conviction for murder. The defense was insanity, in support of which there was some evidence. Tho trial court had instructed the jury that if tho evidence shows that the insanity of defendant was probable, that evidence would not overcome the presumption of sanity. On that subject the court said:

“The presumption is not to be weighed against any measurable amount of evidence.”

Largen v. State, 76 Tex. 323, 13 S. W. 161, was a civil action. The court, in commenting upon a presumption relied upon by one of the parties, said:

“Presumptions cannot be indulged in opposition to facts which show that the fact sought to be established by presumption can have no existence.”

Surely, greater weight cannot be attributed to presumptions in a criminal case than is given them in a civil ease. In Lilienthal’s Tobacco Case, 97 U. S. 237, supra, it is said:

“Text-writers of the highest authority state that there is a distinction between civil and criminal cases in respect to the degree or quantum of evidence necessary to justify the jury in finding their verdiet.”

It may be conceded that the strength or weight of presumptions is for the jury, but it is obvious that the law attaches to them slight consideration in the face of Credible testimony leading to a contrary conclusion. When that is the ease, the issue should be decided on the testimony and not on the presumption, when the latter stands without support from other circumstances. We think it obvious that the proof, considering all of it, including the presumption, weighed heavily in favor of the defendant; and the only reason that we can find for the verdiet of guilty is our belief that the district attorney improperly aroused the suspicions of the jury against the defendant. He asked the defendant on cross-examination incriminating questions, to all of which a negative answer was give, and thereafter no effort whatever was made to establish the affirmative of those questions. The first question was, whether the defendant was not taking the drugs to his cousin, Buek Stevens, whom the defendant knew to be a peddler of narcotics. The next question was, whether he was not taking the drugs to his cousin, Lloyd Skelly, who was also a peddler of narcotics.. Both questions, in both of their aspects, were answered in the negative. The witness further said that he had not seen either of the parties referred to for several months, and seldom saw them.

Wé cannot rid ourselves of the firm belief that the proof in the case is more consistent with innocence than it is with guilt, and this court has frequently held that evidence of facts that are as consistent with innocence as with gtiilt is insufficient to sustain a conviction; and that where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a judgment of conviction. Sullivan v. United States (C. C. A.) 283 F. 865. Furthermore, as we have seen, the proof, what there is of it, to sustain the charge that defendant was a wholesale dealer in the drugs, was circumstantial, and circumstantial proof to sustain a verdiet of guiity must not only be consistent with the defendant’s guilt but it must also exclude every reasonable hypothesis of his innocence. We therefore think the court erred in refusing to instruct a verdiet of not guilty at the close of the testimony, to which refusal there was an exception, and which is assigned as error.

Reversed and remanded.