Butts v. United States

• Citation: 273 F. 35
• Decision Date: 04 May 1921
• Docket Number: 5700.
• Parties: BUTTS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

273 F. 35

BUTTS v. UNITED STATES.

No. 5700.

United States Court of Appeals, Eighth Circuit.

May 4, 1921

John H Hopkins, of Omaha, Neb. (E. D. O'Sullivan, of Omaha Neb., on the brief), for plaintiff in error.

Frank A. Peterson, Asst. U.S. Atty., of Omaha, Neb. (Thomas S Allen, U.S. Atty., of Lincoln, Neb., on the brief), for the United States.

Before SANBORN and CARLAND, Circuit Judges, and LEWIS, District Judge.

SANBORN Circuit Judge.

Clarence O. Butts, the defendant below, was indicted, convicted, and sentenced for a violation of the Anti-Narcotic Act (6 Comp.Stat. 6287g, 6287h; 1 Supp. 1919, Sec. 6287g), in that he, being a person who dealt in, sold, and dispensed narcotic drugs, without registering with the collector of internal revenue or paying the special tax imposed upon such dealers by this act, sold to H. Rudolph three-fourths of an ounce of morphine sulphate, of the value of $190, about April 7, 1920.

Counsel for the defendant below have specified many alleged errors in the trial of this cause, one of the most serious of which is that the trial court denied a request of counsel for the defendant to instruct the jury that the defendant claimed that he was entrapped into delivering to Rudolph the morphine in question by the instigation of the government agents that, had it not been for the importunities and false statements made by Rudolph pursuant to the directions of the government agents, who started out admittedly for the purpose of entrapping the defendant into the commission of the offense charged against him, he would not have conceived or committed it; and that if the jury believed from the evidence that the defendant was induced by the importunities of Rudolph, acting under the orders and in conjunction with the government agents, to violate the law, and that through the instigation of these men the defendant was induced to sell or deliver to Rudolph the morphine, and that he would not otherwise have violated the law, they ought to return a verdict of not guilty. At the close of the trial when this request was made, these facts had been established by the evidence:

The defendant, during 14 years prior to April 6, 1920, had suffered 18 operations for tuberculosis of the bones, and he had been and was addicted to the use of morphine when he was in pain. He had never sold or dealt in the article prior to the transaction of about the 7th of April, 1920, which was the basis of his prosecution in this case. H. Rudolph was addicted to the use of morphine, and these two men were acquainted each with the other, and each knew that the other was addicted to this use. Rudolph had never obtained any morphine from the defendant prior to this transaction. Rudolph had been arrested about two weeks prior to the 2d of April for the violation of this Narcotic Act. Previous to that arrest he had been convicted of a prior violation of the act, and had served a year and a day at Leavenworth. Clyde Lake was a narcotic inspector in the Internal Revenue Service of the United States. He had arrested Rudolph about two weeks before April 7, 1920. Rudolph testified that while he was thus under arrest Mr. Lake sent for him to meet him at Green Davenport's house; that they met there; that Lake told him that he would let him go, if he would help him catch some of the law violators; that after they had talked this proposition over, and made an agreement between him and Lake and other officers of the government to catch Butts, he called the latter up on the telephone, told him he wanted some morphine, and Butts answered that he had none, and then Rudolph asked him if he could get an ounce, and how much it would be, and the defendant told him to call him the next day. He testified that he did not intend to use this ounce of morphine, but intended to get it so that the officers could arrest Butts, and he could be a friend of the officers; that the next day he called Butts again, and Butts told him he could get the morphine for $190; that Lake furnished Rudolph with the $190, and sent him to get the morphine, and as it was delivered by Butts to Rudolph the officers arrested Butts. Lake testified that the telephone calls and conversations of Rudolph with Butts were had when he was present with Rudolph; that he furnished the $190 and directed all the proceedings in which Rudolph took part. Butts testified that Rudolph called him on the telephone and asked him if he could get him some morphine; that Rudolph told him that he was...