DocketNumber： 6613
Judges： Stone, Kenyon, Scott
Filed Date： 4/12/1926
Status： Precedential
Modified Date： 11/4/2024
On the 13th day of June, 1922, a grand jury for the Southwestern division of the Western district of Missouri, returned three indictments against C. M. Spring Drug Company, C. M. Spring, and Russell W. Douglas, charging the defendants with violations of the Act of Congress approved December 17,1914, as amended, commonly known as the Harrison Narcotic Law (Comp. St. §§ 6287g-6287q). The cases were docketed and numbered 421, 422, and 423, respectively. Indictment No. 421 contained two counts numbered 1 and 2; indictment No. 422 contained eight counts numbered 1 to 8 consecutively; and indictment No. 423 two counts numbered 1 and 2. In each odd-numbered count of all indictments the defendant C. M. Spring Drug Company is alleged to be a wholesale dealer in opium and its derivatives and registered as required by the act, and to have paid the special tax required, and that said defendant on the dates therein specified did sell and give away a quantity of narcotic drugs therein described, not in pursuance of any written order from the purchaser therein specified; and the defendants C. M. Spring and Russell W. Douglas are alleged to have aided and abetted in the commission of said offense. Each even-numbered count of the respective indictments purports to deal with the identical transaction described in the odd-numbered count immediately preceding, but charges the sale specified to have been made on a false, fictitious, and forged order form, purporting to have been signed by the person to whom the same purported to have been' issued. The three indictments and all their counts were consolidated for the purpose of trial, and at the commencement of the trial the trial court withdrew from the consideration of the jury all odd-numbered counts of the indictments, and we need give these counts no further consideration. In framing the remaining even-numbered counts, the same general form is observed with the necessary changes of dates, names of purchasers, number of order form, etc.
Count 2 of indictment No'. 421 charges, in substance, that on the 6th day of December, 1921, C. M. Spring Drug • Company was a wholesale dealer and duly registered with the collector of internal revenue, and had paid the special tax required by law, and did sell one-half ounce of cocaine and one-half ounce of morphine to Charles Goff, not in pursuance of a written order from the said Charles Goff, but upon an order form serial No. D-743752 that had been theretofore sold by the collector of internal revenue of the District of Oklahoma to the B & M Drug Store, registered No. 2076, on which order form was written and printed a false, fictitious, forged, and fraudulent request for said narcotics purporting to have been signed by the B & M Drug Store of Owasso, Okl. The indictment sets out the order in full, and charges that said order was not written and signed by the B & M Drug Store, and that C. M. Spring Drug Company did unlawfully accept and fill the same. That C. M. Spring and Russell W. Douglas, then and there being, did knowingly and feloniously aid and abet the said C. M. Spring Drug Uompany in the commission of said offense.
Count 2 of indictment No. 422 charges a sale by C. M. Spring Drug Company of date of January 9, 1922, of one ounce of cocaine to one Lucian Matthews upon a forged order numbered D-743751, theretofore sold to the B & M Drug Store, and further charges that defendants C. M. Spring and Russell W. Douglas did aid and abet the drug company in the commission of said offense.
Count 4 of indictment No. 422 charges a sale by C. M. Spring Drug Company of date of January 9,1922, of one ounce of morphine to one C. H.. Spearman upon a forged order numbered D-743751 theretofore sold to the B & M Drug Store, and further charges that defendants C. M. Spring and Russell W. Douglas did aid and abet the drug company in the commission of said offense.
Count 6 of indictment No. 422 charges a sale by C. M. Spring Drug Company of date of January 9, 1922, of one ounce of cocaine and one ounce of morphine to one Lucian Matthews upon a forged order numbered D-743351 theretofore sold to the B & M Drug Store, and further charges that defendants C. M. Spring and Russell W. Douglas did aid and abet the drug company in the commission of said offense.
Count 8 of indictment No. 422 charges a sale by C. M. Spring Drug Company of date of January 9,1922, of one ounce of morphine- and one ounce of cocaine to one C. H. Spear-man upon a forged order numbered D~
Count 2 of indictment No. 423 charges a sale by C. M. Spring Drug Company of date of January 9, 1922, of four drams of morphine to one C. H. Spearman upon a forged order numbered T-652858 theretofore sold to T. J. Stewart, M. D., and further charges that the defendants C. M. Spring and Russell W. Douglas did aid and abet the drug company in the commission of said offense.
Now it will be observed that the four even-numbered counts of indictment No. 422 — and indeed the four odd-numbered counts before they were withdrawn — are all based upon a single transaction. In this connection the government’s testimony tended to show that on the 9th day of January, 1922, the government’s witnesses Matthews and Spearman entered the C. M. Spring Drug Company’s store in Joplin, Mo., and approached defendant C. M. Spring; that Matthews, who had met Spring before, introduced Spearman as Mr. Scott, his partner, and thereupon it is testified they stepped somewhat aside with Spring and apprised him of their desire to purchase some narcotics; that Spring asked them if they had order blanks, and they said that they had, and eaeh produced two blanks; that some of the blanks were not satisfactory to Spring, and he called defendant Douglas; that Douglas pronounced the blanks in question good, but said that they did not care to handle them, but selected another of the blanks and stated that they would use that one, and thereupon Matthews filled out the blank for the amount of narcotics desired, to wit, one ounce of cocaine and one ounce of morphine, and delivered the order to Douglas, who retired and returned with the entire order of narcotics wrapped up in a single package, and delivered the same to Matthews, whereupon Matthews and Spearman proceeded to the cashier’s desk and eaeh passed a $20 bill to the counter and asked to have $4 in change returned to eaeh, which was done. The government apparently treated this transaction as constituting four separate offenses, and to this subject we will revert later.
On the trial, the jury returned verdicts in No. 421 of guilty against the defendants C. M. Spring Drug Company and C. M. Spring, and not guilty as to defendant Russell W. Douglas. In No. 422 verdicts of guilty were returned on all four counts against all defendants; and in No. 423 verdicts of guilty were returned against all defendants. And thereupon the court entered judgment as follows:
In ease No. 421, C. M. Spring Drug Company to pay a fine of $2,000, and C. M. Spring to be imprisoned in the United States Penitentiary at Leavenworth, Kan., for a period of 3 years and pay a fine of $500. In case No. 422, that C. M. Spring Drug Company pay a fine of $2,000 on each of the four counts; that C. M. Spring he imprisoned in the United States Penitentiary at Leavenworth, Kan., for a period of 3 years on each of the four counts, and that he pay a fine of $500 on each of the four counts; that the sentence imposed on each of the four counts run concurrently with the sentence imposed in case No. 421; that Russell W. Douglas pay a fine of $200 on eaeh of the four counts. In case No. 423, that C. M. Spring Drug Company pay a fine of $2,000, and that C. M. Spring be imprisoned in the United States Penitentiary at Leavenworth, Kan., for a period of 3 years and pay a fine of $500, sentence of imprisonment to run concurrently with imprisonment imposed in case No. 421; that Russell W. Douglas pay a fine of $200.
Judgment was thereupon rendered against the C. M. Spring Drug Company in the aggregate sum of $12,000, against C. M. Spring in the aggregate sum of $3,000, and against Russell W. Douglas in the aggregate sum of $1,000.
Eaeh of the defendants have sued out writs of error in eaeh of said cases, and by agreement and permission of the court a single bill of exceptions has been settled and filed, covering all three cases; and the assignments of error are jointly filed by all of the defendants.
Defendants assigned fifteen separate errors in their original assignment, and later by permission filed four additional assignments. As frequently occurs, numbers of the assignments are mere varied statements of others, and for convenience we shall classify and group them for the purpose of consideration here.
Assignments of error Nos. 1 to 5, inclusive, involve consideration of substantially the same question and principle. The substance of assignment No. 1 is that the court erred in overruling defendants’ motion to abate the indictments and suppress the evidence because the alleged sale was made to servants of the government upon a fictitious and forged order in pursuance of a conspiracy by said agents to entrap the defendants. Assignments Nos. 2 and 3 are to the effect
As to the additional point raised by assignment of error No. 4, that the transaction in question did not constitute a sale, the question seems to have been squarely passed upon in this circuit in Smith v. United States, 284 F. 673, and it was there held that a transaction similar to the ones in question constituted a sale within the inhibition of the Harrison Narcotic Act.
Assignment No. 6: “That the court instructed the jury to find the defendants not guilty on odd-numbered counts of indictments numbered 421, 422, and 423, and, having so instructed, the court erred in not instructing the jury that the jury should find for the defendants on the even-numbered counts of the indictments. That said instruction in that respect was unauthorized for the reasons set forth in assignments numbered 3, 4, and 5.” What we have- said with respect to assignments Nos. 3, 4, and 5, is also conclusive as to assignment No. 6.
Assignment No. 7, is to the effect that the court erred in instructing the jury that they might find against defendants on the second count of indictment 421, for the reason that the same was based on the testimony of Gharles Goff, an addict, who admitted that that he had pleaded guilty to the unlawful sale of narcotics, and other crimes, and that his testimony was not corroborated. We know of no authority, and none is cited, to-the effect that an addict is not a competent witness. Neither does the fact that the witness had pleaded guilty or been convicted of a crime disqualify him. Such facts go to the credibility of the witness only. Counsel for plaintiffs in error, in support of their contention, cite Crawford v. United States, 212 U. S. 203, 29 S. Ct. 260, 59 L. Ed. 465, 15 Ann. Cas. 392, and Naftzger v. United States, 200 F. 497, 118 C. C. A. 598. These cases do not support counsel’s contention, but. do stress the thought that they should not be treated as ordinary witnesses of good character, that their testimony should be taken with caution, and in weighing the testimony consider whether they have been corroborated. The question of corroboration is to be considered in connection with weighing the testimony, and does not go absolutely to the disqualification of the witness. But in this case, were the question to be controlling, we would have no difficulty in concluding that, there was corroboration of the witness Goff.
Assignment No. 8, predicates error on. the charge of the court respecting the conduct of the government agents Greene, Grieson, and Witten. /It is pointed out that the-court charged that the conduct of these witnesses in effecting the pretended sale “was not dishonorable in any respect, but those-gentlemen were in the performance of a solemn duty imposed upon them by their government, and that, if the jury believed their testimony, which they were justified in believing, that they were there and did search Goff before sending him to- the drug store, then you are instructed that such conduct upon their part was such conduct as government, agents do use and may use,” and other matter of the same tenure. Viewed in the light, of the- testimony and circumstances, we think the language of the trial judge was not erroneous.
Assignment No. 9, predicates error on the court’s instruction to the jury that: “Good character does not, within itself, prove-a defense for the commission of a crime. It
Assignments Nos. 10 and 11, are as follows:
Assignment No. 10: “That under the indictments and under all the evidence the whole charge of the court was erroneous and against the law of the land, and was wrongfully given.”
Assignment No: 11: “Because under the indictments and under all the evidence the charge of the court was erroneous and prejudicial to the rights of the defendants under the Constitution and laws of the United States.”
These assignments are too general and raise no question on this record. Counsel for plaintiffs in error apparently recognized this for they have not argued them upon the brief.
Assignment No. 12: That the court erred in instructing the jury as follows:- “Now, gentlemen, if you should believe and find from the evidence in this ease that the C. M. Spring Drug Company made sales through its officers and agents of the narcotics mentioned in the evidence to the parties mentioned in the evidence, and that the forms were used and the requests made on such forms under such circumstances that the drug company, through its officers and agents, knew such order forms were in wrong hands; that is to say, they were not in the hands of an agent or attorney of such registrant or somebody duly authorized by him to make such purchase — if you believe, as the court charges, that said sales were made with knowledge on the part of the drug company, its agents and servants, that such blanks were in wrong hands and that they were false, fraudulent, and forged, then, gentlemen, you will be entirely justified in convicting each and all of the defendants on the charges made.”
We think in this connection that the jury were not misled. The only officer and agent connected directly with any of the transactions charged were C. M. Spring, president of the C. M. Spring Drug Company, and Russell W. Douglas, an employee. Viewed in the light of the record, we think there was no reversible error on this assignment.
Assignments Nos. 13,14, and 15 are general, and raise no specific questions.
Additional assignment No. 1 is to the effect that the court erred in excluding the juror Barclay upon the ground that he had had some business connection with the C. M. Spring Drug Company. While we think it quite probable that no error would have been committed by retaining this juror, still we think it within the discretion of the trial court to exclude him. The defendants had trial before a competent jury, and no prejudice in this respect resulted.
Additional assignment No. 2: That the court erred in admitting in evidence order forms Exhibits A to L, for the reason that they were all forms illegally seized by the officers of the government. The record clearly shows that these were order forms on file and being preserved by the defendant corporation, that they were preserved for the purpose of record in conformity with an act of Congress, and that, by the provisions of the law under which they were kept, the federal officers were entitled to access to them at all times. We think they were not private papers of the drug company or any other defendant. But there is another reason why no error was committed in receiving these documents in evidence. They were voluntarily relinquished to the government officers by the agents of the corporation.
Additional assignment No. 3 raises the same question as assignment No. 4, and is therefore without merit.
Additional assignment No. 4 presents a more serious question than any previous assignment. It is: “That the court erred in allowing witness Grieson to testify as to the volume of the narcotics purchased and the volume of the narcotics sold by the C. M. Spring Drug Company prior to December 6, 1921.”
This assignment goes to certain -questions propounded by the prosecution to the witness Grieson, a government inspector. We quote the testimony from the record.
“Q. I want to ask you if there was any-' thing in the volume of narcotics purchased, and the volume sold by the C. M. Spring Drug Company prior to December 6th, that caused you to make this investigation?
“Mr. Thurman: I object to that. The witness said awhile ago there is no limitation on the narcotic sale. Another thing, that calls for an expert; other houses of the same size might not have been in business so long; and it certainly is an improper question.
“The Court: Objection overruled.
“Defendants except.
“Mr. Gray: The further objection, that the witness has already testified, in order to*858 determine the amount of calls that a wholesale housfe would have for these drugs, you must take into consideration its location, the character of the inhabitants supplied, and matters of that nature, and to average it up and -say whether you do average with other wholesale drug stores is certainly an improper test to apply as to whether a man has violated a criminal law or not.
“The Court: Overruled.
“Defendants except.
“Q. What do you say as to that? A. Would I be permitted to state why I arrived at my conclusion?
“The Court: Yes; you may.
“A.j It was by deliberate comparison between the volume of business done. The C. J. Lincoln Drug Company, at Little Rock, Ark., do a volume of business something like $750;000 to $1,000,000, and I think a larger volume gross business than the C. M. Spring Drug Company. May I state it was the C. J. Lincoln Drug Company where I got the line on prices? The C. M. Spring Drug Company, in narcotics alone, did several times, or purchased and sold several times, the amount of narcotics during the year 1921, I think it was, than the C. J. Lincoln Drug Company did.
“Mr. Gray: I move to strike it all out, for the reasons originally given, and that#the bais of comparison is not rational and not substantial, and not correct in any particular. The demands for this drug in the territory in which Little Rock is situated is entirely different from the demands for the drug in this district, where it is a matter of common knowledge that we have people die every day with miner’s consumption, and in which the drug is given in every ease of that kind, practically, as testified by the witness, during stages of that disease. This is also a territory; a national census itself will show, that supplies four times the population of Little Rock, and, with a/ disease of this character, is so incomparable that it can have no weight except to prejudice the jury by simply showing the hald fact in this territory this drug company sold more morphine than some other drug company in some other state.
“Mr. Coon: I think your honor will take judicial notice of the territory Little Rock. There are mines and large oil developments, both in northern -Louisiana and Oklahoma, adjacent territory, and in southern Arkansas, and také into consideration this question was —the subject was indirectly referred to by counsel for defendant.
“The Court: The motion to strike out will be,sustained, and the jury instructed to disregard the answer.”
We think it was error, and very prejudicial, to permit the prosecution to bring out before the jury the matter of relative volume of sales by the C. M. Spring Drug Company as compared with other drug companies in other cities.
We are not unmindful that “the general rule is that, where evidence erroneously admitted is withdrawn from the consideration of the jury by the direction of the presiding judge, such direction cures any error which may have been committed by its introduction. It is also true that in exceptional instances the withdrawal of evidence improperly admitted does not cure the error.” Hopt v. Utah, 120 U. S. 430, 7 S. Ct. 614, 30 L. Ed. 708; Waldron v. Waldron, 156 U. S. 361, 15 S. Ct. 383, 39 L. Ed. 453; Throckmorton v. Holt, 180 U. S. 552, 21 S. Ct. 474, 45 L. Ed. 663; Remus v. United States (C. C. A. 6) 291 F. 501, petition for writs of certiorari denied 263 U. S. 717, 44 S. Ct. 180, 68 L. Ed. 522; Newman v. United States (C. C. A. 4) 289 F. 712; Stewart & Co. v. Newby (C. C. A. 4) 266 F. 295; United States v. Boston, C. C. & N. Y. Canal Co. (C. C. A. 1) 271 F. 894; Chesapeake & O. Ry. Co. v. Hare (C. C. A. 4) 283 F. 947; Hill v. Wabash Ry. Co. (C. C. A. 8) 1 F.(2d) 626; Maytag v. Cummins, 260 F. 74, 171 C. C. A. 110, 16 A. L. R. 712 (C. C. A. 8); C., M. & St. P. Ry. Co. v. Newsome, 174 F. 394, 99 C. C. A. 1 (C. C. A. 8); Knickerbocker Trust Co. v. Evans, 188 F. 549, 110 C. C. A. 347 (C. C. A. 1).
We think the facts and circumstances surrounding the occurrence before the jury brings this ease within the exception: The statement made by the witness impressed upon the minds of the jury that the very initiation of the charges against the defendants rested upon a “deliberate comparison between the volume of business done” by the Little Rock Company and defendant company.
We now revert to the question referred to earlier in this opinion. In the trial of indictment No. 422, four counts were submitted to. the jury," four separate verdicts returned, and four independent sentences and judgments pronounced. We are constrained to the conclusion in this connection that but one of these counts should have been submitted. The two men, Matthews and Spearman entered together, one introduced the other as his partner, and they proceeded to what appears to have been a common negotiation. A- single blank was used, and, so far as we are able to discern, a single contract of purchase entered
We think at this point we should notice one of the instructions given by the court to the jury in connection with the testimony of the witness Goff. We quote the part of the instructions referred to:
“Now, gentlemen, the testimony is: He went to the C. M. Spring Drug Company, after having been searched by certain agents of the government, and after he had gone there with a blank that had been supplied him, upon which certain erasures had been made, according to the testimony. The officials of the company, Mr. Spring and Mr. Douglas, after an examination of the blank, said to him the erasure of the blank was too plain, and they would not be willing to sell upon that blank. That thereupon he returned to the room in the Hotel Connor in this city, and there met the narcotic agents, who provided him with another blank. That he returned with a second blank to the C. M. Spring Drug Company, after having been searched for narcotics, and for any money he might have other than the money with which he was supplied. And upon his return with a different blank the C. M. Spring Drug Company, through its agents, supplied him with an ounce of morphine.
“Now, gentlemen, you would be entirely justified, in view of all that testimony, in believing the C. M. Spring Drug Company, through its officers and agent, understood and knew that was a fraudulent blank; that it was forged; that the blank was in wrong hands; and that it ought not to make a sale to Goff under such circumstances, because the law is that only the person to whom the blank has been issued can, either himself or his authorized agent, make such purchase. And the C. M. Spring Drug Company, through its officers and agents, you may infer from such testimony, was warned when Goff made his second appearance with another blank that he was not the proper bearer of the blank. He was not the registrant, nor was he representing the registrant under such circumstances that they should be justified in dealing with him.”
The phase of the charge here criticised is that", after summing up testimony upon a material matter,” the trial judge flatly and unqualifiedly said to the jury: “Now, gentlemen, you would be entirely justified, in view of all that testimony, in believing the C. M. Spring Drug Company, through its officers and agents, understood and knew that was a fraudulent blank; that it was forged; that the blank was in wrong hands; and that it ought not to make a sale to Goff under such circumstances.” This whole part of the charge strongly intrenches upon the argumentative, and concludes with the direct statement that on the evidence as stated the jury is justified in believing a fact, which, if believed, necessarily leads to a verdict of guilty. We think here the trial' court. invaded the province of the jury to such an extent as to constitute reversible error so far as concerns indictment No. 421.
In view of what has been said, we are of opinion that the case upon all. three indict
Reversed.