289 F. 484 (4th Cir. 1923), 2087, Nutter v. United States

Docket Nº:2087.
Citation:289 F. 484
Case Date:May 18, 1923
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 484

289 F. 484 (4th Cir. 1923)




No. 2087.

United States Court of Appeals, Fourth Circuit.

May 18, 1923

Frank M. Powell, of Clarksburg, W.Va. (J. Philip Clifford, of Clarksburg, W. Va., on the brief), for plaintiff in error.

T. A. Brown, U.S. Atty., of Parkersburg, W. Va., and W. C. Grimes, Asst. U.S. Atty., of Keyser, W. Va.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

ROSE, Circuit Judge.

The plaintiff in error, defendant below and so designated here, was tried on an indictment of five counts, charging as many forbidden sales of morphine to that number of different people. He was acquitted on all but the first, which alleged that he had made a sale to one Ace Williams. On that he was convicted, and to reverse the resulting judgment he has sued out this writ of error.

Williams was an addict. He was searched by a government officer to make sure that he had no drugs on his person, given $4, and sent to buy morphine from the defendant. According to his story, the defendant told him that he had none of the drug at the moment, but, if he would come back a few hours later, his wants would be supplied. All this Williams reported to the government inspector,

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at whose instance he had sought to make the purchase. He was sent back at the time named by the defendant, being again searched just before he entered the defendant's office. This time he says the defendant gave him the morphine and was paid for it. The defendant denies that any sale whatever was made, or that any drugs passed. Nevertheless his learned counsel claims here, as he did below, that the conviction should be set aside, because, as is alleged, the defendant was tempted or entrapped into doing what the jury found that he did. Such contention ignores, not only his own testimony that all of Williams' story was false, but the evidence of Williams that he had bought drugs from the defendant a hundred times before. Under such circumstances there was nothing of illegitimate entrapment or procurement in the government inspector's sending him to make the one hundred and first purchase under conditions which would enable the United States to offer corroborative proof that the sale had been made.

He now assigns various errors in the charge of the court to the jury. The only exception taken at the trial to the charge was to it as a whole, without any...

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