Brightman v. United States

• Decision Date: 24 August 1925
• Docket Number: No. 6769.,6769.
• Citation: 7 F.2d 532
• Parties: BRIGHTMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

7 F.2d 532 (1925)

BRIGHTMAN v. UNITED STATES.

No. 6769.

Circuit Court of Appeals, Eighth Circuit.

August 24, 1925.

Elbridge G. Wilson, of Tulsa, Okl. (James H. Sykes, of Tulsa, Okl., on the brief), for plaintiff in error.

W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.

Before SANBORN, LEWIS, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

Plaintiff in error, hereafter called defendant, was tried and convicted on an indictment charging him with having unlawfully purchased, on the 8th day of September, 1923, in Osage county, Okl., a certain derivative of opium, to wit, morphine; the same not being purchased in or from the original stamped package. Upon a second count charging unlawful sale, verdict was directed in defendant's favor.

The indictment was drawn under the Harrison Narcotic Law (act of December 17, 1914, as amended by sections 1006 and 1007 of the Revenue Act of 1918, 40 Stat. 1130 Comp. St. Ann. Supp. 1919, §§ 6287g, 6287l). Section 1 of the act (Comp. St. Ann. Supp. 1919, § 6287g) provides:

"It shall be unlawful for any person to purchase * * * any of the aforesaid drugs except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section by the person in whose possession same may be found."

The main undisputed facts are as follows: Two government informers, working under a government narcotic agent, approached the defendant in the city of Tulsa, in the Eastern district of Oklahoma, and told him they wished to buy some morphine, an ounce then, possibly more later. Defendant said that he would not deliver it in town. He thereupon called a taxicab, and told the driver where to take the two informers, and said that he would follow shortly. They were driven in the cab 5 or 6 miles northwest of the city to a roadhouse in Osage county, in the Western district of Oklahoma. A few minutes later defendant came up, and, after some further conversation, went behind a shed, a short distance from the house, and dug from the ground a small box which contained an ounce of morphine. He delivered it to the informers. They paid him $45 for it, took it back to Tulsa, and delivered it to the narcotic agent.

On the foregoing facts and others, not material to the present inquiry, the trial court directed a verdict in favor of defendant on the sale count, on the ground that the agents of the government caused the defendant to do the act constituting the offense. We are not here concerned with that ruling. The judgment now under review is based on the charge against the defendant of purchasing, not selling.

There was no direct evidence in the record of any purchase by the defendant, and the trial court so charged the jury. The government relied, however, for proof of the purchase, upon the presumption or prima facie evidence provided in the section of the statute above quoted. This presumption arises when the following facts appear: First, finding the drug in the possession of the defendant; second, absence of appropriate tax-paid stamps from the drug. In the instant case there was evidence from which the jury might find both of these two essential facts.

It has long been settled that legislation providing that proof of one specified fact shall constitute prima facie evidence of another fact is within the general power of government to enact rules of evidence. Luria v. United States, 231 U. S. 9, 25, 34 S. Ct. 10, 58 L. Ed. 101; Mobile, etc., R. R. v. Turnipseed, 219 U. S. 35, 43, 31 S. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463; Bailey v. Alabama, 219 U. S. 219, 238, 239, 31 S. Ct. 145, 55 L. Ed. 191; Jones v. Union Guano Co., 264 U. S. 171, 180, 44 S. Ct. 280, 68 L. Ed. 623; People v. Cannon, 139 N. Y. 32, 43, 34 N. E. 759, 36 Am. St. Rep. 668; Commonwealth v. Anselvich, 186 Mass. 376, 379, 71 N. E. 790, 104 Am. St. Rep. 590. And especially is this true in the class of cases of the character of the one at bar. Yee Hem v. United States, 268 U. S. 178, 45 S. Ct. 470, 69 L. Ed. ___; Gee Woe v. United States, 250 F. 428, 162 C. C. A. 498; United States v. Yee Fing (D. C.) 222 F. 154; United States v. Ah Hung (D. C.) 243 F. 762; Baender v. United States, 260 F. 832, 171 C. C. A. 558; Fiunkin v. United States (C. C. A.) 265 F. 1; Dean v. United States (C. C. A.) 266 F. 694; Pierriero v. United States (C. C. A.) 271 F. 912; James v. United States (C. C. A.) 279 F. 111; Bram v. United States, 282 F. 271 (this court); Willsman v. United States, 286 F. 852 (this court); Wong Lung Sing v. United States (C. C. A.) 3 F.(2d) 780.

The presumption of the statute alone, however, was not sufficient for conviction. Before the defendant could properly be convicted, it was necessary for the government to go further and prove that the venue was the Western district of Oklahoma. This was a prerequisite to a conviction, and the foundation of this prerequisite is contained in the Sixth Amendment to the Constitution of the United States, which provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." Wharton Crim. Ev. (10th Ed.) § 106a; Vernon v. United States, 146 F. 121, 76 C. C. A. 547 (this court); Moran v. United States (C. C. A.) 264 F. 768; Underwood v. United States (C. C. A.) 267 F. 412; Tuckerman v. United States (C. C. A.) 291 F. 958, 967.

In the Vernon Case, this court said: "Under this constitutional provision, the venue is as material as any other allegation in the indictment, and the burden to prove it rests upon the government."

It might be claimed that the prima facie evidence arising under the statute renders proof of the venue unnecessary. We do not think that the presumption or prima facie evidence of the...