CM Spring Drug Co. v. United States

• Decision Date: 12 April 1926
• Docket Number: No. 6613.,6613.
• Citation: 12 F.2d 852
• Parties: C. M. SPRING DRUG CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

12 F.2d 852 (1926)

C. M. SPRING DRUG CO. et al. v. UNITED STATES.

No. 6613.

Circuit Court of Appeals, Eighth Circuit.

April 12, 1926.

COPYRIGHT MATERIAL OMITTED

A. W. Thurman, of Joplin, Mo., and Howard Gray, of Carthage, Mo., for plaintiffs in error.

S. M. Carmean and C. S. Walden, Asst. U. S. Attys., both of Kansas City, Mo. (Charles C. Madison, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before STONE and KENYON, Circuit Judges, and SCOTT, District Judge.

SCOTT, District Judge.

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 Company 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. Spearman upon a forged order numbered D- 743751 theretofore sold to the B & M Drug Store, 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.

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 each 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 each passed a $20 bill to the counter and asked to have $4 in change returned to each, 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 case 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 be 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 each 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.

Each of the defendants have sued out writs of error in each 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 that the court erred in refusing peremptory instructions of not...