Butler v. United States

• Decision Date: 09 June 1927
• Docket Number: No. 7628.,7628.
• Parties: BUTLER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

20 F.2d 570 (1927)

BUTLER et al. v. UNITED STATES.

No. 7628.

Circuit Court of Appeals, Eighth Circuit.

June 9, 1927.

Wright & Gill and Morris & Tant, all of Oklahoma City, Okl., for plaintiffs in error.

Roy St. Lewis, U. S. Atty., and Leslie E. Salter, Asst. U. S. Atty., both of Oklahoma City, Okl.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and DAVIS, District Judge.

BOOTH, Circuit Judge.

Plaintiffs in error, Lee Butler (under the name of J. J. Butler) and P. C. Butler, were jointly indicted in the Western district of Oklahoma, charged in the first count with conspiring to commit an offense against the United States, to wit, the selling of morphine, without having registered with the collector of internal revenue or paid the special tax required, and charged in a second count with the substantive offense of selling morphine without having registered or paid the tax, all in violation of section 1 of the Harrison Anti-Narcotic Act (Act Dec. 17, 1914, 38 Stat. 785, amended February 24, 1919, 40 Stat. 1130, § 1006, reenacted November 23, 1921, 42 Stat. 298, § 1005, and re-enacted June 2, 1924, 43 Stat. 328, § 705 Comp. St. § 6287g).

The charging part of the first count reads as follows:

"That heretofore, on or about December 1, 1925, at Oklahoma City, within the Western district of Oklahoma, and within the jurisdiction of this court, J. J. Butler and P. C. Butler, whose more full, true, and correct names are to the grand jurors unknown, did knowingly, willfully, unlawfully, corruptly, fraudulently, and feloniously conspire, combine, confederate, and agree together, and with divers other persons whose names are to the grand jurors unknown, to commit an offense against the United States, in violation of Act of December 17, 1914, as amended, to wit, the offense of dealing in and selling a derivative of opium, to wit, morphine, 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 Act Feb. 24, 1919, c. 18, par. 1006, and re-enacted by Act Nov. 23, 1921, c. 136, par. 1005; the said defendants then and there being dealers in morphine, and persons required to so register and pay said special tax as aforesaid; that said conspiracy was continually in existence between the dates of December 1, 1925 and January 5, 1926."

An overt act was alleged as follows:

"(1) That on or about December 7, 1925, at and within Oklahoma county, Oklahoma, the defendants J. J. Butler and P. C. Butler sold and delivered to one W. T. Hunter one ounce of morphine 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, Act February 24, 1919, c. 18, par. 1006 and re-enacted, Act November 3, 1921, c. 136, par. 1005; the said defendants then and there being dealers in morphine, and persons required to so register and pay said special tax as aforesaid."

The charging part of the second count reads:

"That heretofore, to wit, on or about December 7, 1925, at and within Oklahoma county, in the Western district of Oklahoma, and within the jurisdiction of this court, the defendants J. J. Butler and P. C. Butler, whose more full, true, and correct names are to the grand jurors unknown, then and there being, did then and there, 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, Act February 24, 1919, c. 18, par. 1006, and reenacted Act November 23, 1921, c. 136, par. 1005, unlawfully, willfully, knowingly, and feloniously sell, barter, exchange, give away, and deliver to one W. T. Hunter, a certain derivative of opium, to wit, about one ounce of morphine; the said defendants then and there being dealers in morphine, and persons required to so register and pay said special tax as aforesaid."

Defendants were tried and found guilty on both counts. A motion in arrest of judgment was overruled. Both were sentenced on the first count to imprisonment for two years in the penitentiary at Leavenworth, Kan., and on the second count to imprisonment for five years in the penitentiary and to the payment of a fine of $500. The two sentences of confinement were ordered to run concurrently.

Among the assignments of error is one challenging the action of the court in overruling a motion for a directed verdict on each of the counts, and another challenging the verdict of the jury as not supported by the evidence, for the reason that there was no evidence that the defendants were of that class of persons required in the Harrison Anti-Narcotic Act to register and pay the tax. These two assignments of error will be discussed together.

The evidence tended to show that two narcotic government informers, on the evening of December 7, 1925, went to the place of residence of Lee Butler in Oklahoma City. One of them, Lashbrook, had a preliminary conversation with Butler, and finally introduced him to Hunter, the other informer. Hunter told Butler that he wished to purchase an ounce of morphine. After they had talked for some time, a sale was agreed upon, the price to be $80. Lee Butler by telephone called his brother, P. C. Butler. Shortly after his arrival, Hunter counted out $80, which P. C. Butler took, and Lee Butler then directed Hunter to go with P. C. Butler. He did so, and was driven in an automobile to the outskirts of the city, where the automobile was stopped. P. C. Butler went into a field and dug up what afterward proved to be an ounce of morphine. This was delivered to Hunter; he tore open the wrapper, opened the can, examined it, and said it was all right. They then returned to the city. Later Hunter placed his initials on the can, and it was delivered to the narcotic agent. It was produced at the trial.

The evidence showed that the can did not have any tax-paid stamp upon it, either at the time of the trial or at the time it was purchased. There was no evidence on the question whether the defendants were registered under the act, or whether they had paid the special tax provided by the act. The court charged the jury on this phase of the matter as follows:

"It would be a good defense in a case of this kind if the defendants had registered with the collector of internal revenue and paid the special tax; that is, so far as the prosecution in this case is concerned. But if there is such a defense, and the defendants desired to present it, then it would devolve upon them to introduce evidence for the purpose of showing the registration and payment of the tax. They have not done so in this case, and you will take it that no such prerequisite is undertaken or performed by the defendants."

Instead of thus charging the jury, the trial court, on the record before it, should, we think, have granted the motion for a directed verdict, on the ground that the evidence was wholly insufficient to sustain the allegations of the indictment. It must be borne in mind that section 1 of the Harrison Anti-Narcotic Act, as amended by the Act of February 24, 1919, covers two separate and distinct classes of offenses: First, offenses that may be committed only by a limited class of persons, viz. persons required to register under the provisions of the act; second, offenses that may be committed by any person. The first class of offenses is defined in the clause of section 1 (which we have designated A) reading as follows:

A: "It shall be 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...