Ezzard v. United States

• Decision Date: 04 August 1925
• Docket Number: No. 6679.,6679.
• Citation: 7 F.2d 808
• Parties: EZZARD v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

7 F.2d 808 (1925)

EZZARD v. UNITED STATES.

No. 6679.

Circuit Court of Appeals, Eighth Circuit.

August 4, 1925.

B. F. Williams and J. E. Luttrell, both of Norman, Okl., and S. A. Horton, of Oklahoma City, Okl., for plaintiff in error.

W. A. Maurer, U. S. Atty., and James A. Ingraham and J. W. Scothorn, Asst. U. S. Attys., all of Oklahoma City, Okl.

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

LEWIS, Circuit Judge.

After trial and verdict of guilty defendant, plaintiff in error here, was sentenced to imprisonment and to pay a fine for violation of section 1 of the Act of December 17, 1914 (38 Stat. 785), as amended by the Act of February 24, 1919, § 1006 (40 Stat. 1130 Comp. St. Ann. Supp. 1919, § 6287g). The indictment charged that defendant did "unlawfully, knowingly, willfully and feloniously deal in certain derivatives of opium and coco leaves, to wit, about one hundred five (105) ounces morphine sulphate and three (3) ounces cocaine hydrochloride, 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 sections 1006 and 1007 of the Revenue Act of 1918; the said W. T. Ezzard then and there being a wholesale dealer in morphine and cocaine and a person required to so register and pay said special tax as aforesaid."

At the time of his arrest by police officers defendant had in his automobile a trunk in which were the drugs named in the indictment. He had just gotten the trunk from the Santa Fé Railway station in Oklahoma City, under circumstances hereinafter stated. There was no evidence, direct or indirect, that Ezzard was then or ever had been a wholesale dealer in narcotic drugs, other than the fact that the trunk in his possession contained morphine and cocaine. He had not registered and paid the tax, but if not a dealer he was under no duty to do so. Section 1 of the act on which the indictment is based defines a wholesale dealer and the crime charged thus:

"Every person who sells or offers for sale any of said drugs in the original stamped packages, as hereinafter provided, shall be deemed a wholesale dealer. * * * 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 without having registered and paid the special tax as imposed by this section."

Section 8 of the act (Comp. St. § 6287n) provides that possession or control of the drug shall be presumptive evidence of a violation of the provisions of section 1 of the act. This is but a declaration of a rule of evidence, which doubtless would have been applied by the court without legislative enactment. In Insurance Co. v. Weide, 11 Wall. 438, 441 (20 L. Ed. 197), it is said:

"A presumption is an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known."

There was no proof that Ezzard was a wholesale dealer; and, in order to sustain the verdict of guilty, it was and is necessary to infer that the defendant was a wholesale dealer from the proven fact that he had possession of the drugs. That inference or presumption is rebuttable, defendant's possession or control may have been innocent and not for the criminal purpose charged. The statute here, as the one construed in Beander v. Barnett, 255 U. S. 224, 41 S. Ct. 271, 65 L. Ed. 597, "is not intended to include and make criminal a possession which is not conscious and willing." Presumptive evidence is said to be indirect or circumstantial evidence. Best on Evidence (Morgan's Ed.) §§ 27, 293. Starkie on Evidence, vol. 1 (7th Amer. Ed.) side p. 558: "Circumstantial, or, as it is frequently termed, presumptive evidence, is any which is not direct and positive."

Against the case thus made by the prosecution, resting on the presumption or inference that Ezzard was a wholesale dealer, he offered uncontradicted proof that he went for the trunk as an accommodation and had no knowledge or information as to its contents, and he thus claimed that the presumption was rebutted and overthrown. In substance he and his witnesses, all unimpeached and uncontradicted, testified to these facts: He was a farmer residing twenty miles or more from Oklahoma City. While at breakfast one morning about 6:30 a real estate agent in the city, who had in hand for Ezzard a transaction in real estate, telephoned him to come to Oklahoma City at once in connection with that transaction. Without that call he would not have gone to the city. On his way he crossed the Canadian river. A bridge was being constructed at that point and there were tents and temporary buildings for the use of the men employed there. Ezzard stopped after crossing the river on account of some trouble with his automobile, and got out to fix it. A woman came to him from the direction of the tents and asked him if he would bring back with him a trunk at the Santa Fé Railway station, which she said belonged to one of the boys in the camp. He consented to do so, and she gave him a check for the trunk. When he reached the city he went first to the real estate agent's office, then to a bank which had some interest in the real estate transaction, and then to the Santa Fé station. There he surrendered the check, obtained the trunk and put it in his automobile. The check had been issued by the New York Central Railway at New York City. Ezzard had never been in New York City, nor out of Oklahoma for several years. The trunk had become unlocked, and it was discovered before Ezzard came for it that it contained the drugs. It was watched and when Ezzard started away with it he was followed by policemen in another automobile. After he had gotten about five miles out of the city on his way home they stopped him, arrested him, took him and his automobile back to the city and placed him in jail. They asked him when they arrested him about the trunk, and he told them he was taking it to a woman at the bridge, and insisted that they go with him there for the purpose of verifying his statement. They declined to do so. He was released from custody a day or so later, but was then unable to find the woman. He made several visits to the bridge camp for that purpose, and was told by the keeper of the commissary and by the ferryman that a woman had been there, but she had gone away. He testified that he had never had anything to do with narcotics and would not have known what the drugs were if he had seen them; that he did not know they were in the trunk; had no knowledge of its contents. Another witness, who crossed the river at the same place earlier in the morning than Ezzard crossed it, testified that a woman there asked him if he would bring a trunk out from Oklahoma City for her; that he was in a hurry and declined to do so. A deputy sheriff testified that two women whose father lived in the vicinity of the river crossing were in and out of that neighborhood from time to time; that he had arrested them on several occasions, once for being implicated in the theft of an automobile, once for being drunk, and for other disreputable conduct; that he knew they were users of narcotics and that both of them were known as "dope-heads." Their father's name is Lawrence. One of the women had been convicted of selling narcotics. The real estate agent in Oklahoma City corroborated the testimony of Ezzard that he came to the city that morning in response to a telephone call from him in connection with a real estate transaction, and the banker testified that he came to the bank on the same transaction. Several of Ezzard's neighbors testified to his good reputation as a law-abiding citizen. The agent at the Santa Fé station who delivered the trunk to Ezzard testified that he asked him where it was going, and Ezzard said to Newcastle, which is the river crossing, and that he was hauling it for a Mrs. Smith. Ezzard denied that he told the agent that the trunk was for Mrs. Smith; he testified that he did not know her name and that she did not say the trunk was hers. He lived about twelve miles from the bridge.

Presumptions or inferences of fact are not evidence, they are the result of evidence, and are raised on circumstances to supply the place of actual proof; when substantial proof is made contrary to the fact presumed, the presumption is rebutted. In civil cases they may sometimes fix the onus probandi, but not so in criminal on the main issue. There, on a plea of not guilty, the burden and quantum of proof to establish the corpus delicti and defendant's guilt never shifts. Lilienthal's Tobacco v. United States, 97 U. S. 237, 266, 267, 24 L. Ed. 901; Davis v. United States, 160 U. S. 469, 487, 40 L. Ed. 499. Where possession is the offense charged, the corpus deliciti, and defendant's possession is shown, a verdict of guilty will stand in the absence of proof establishing an innocent possession. Feinberg v. U. S. (C. C. A.) 2 F.(2d) 955. But the writer is of opinion that a prima facie case is unknown in criminal procedure. In no condition of proof is it permissible to instruct a jury that it had become the duty of defendant to establish his innocence to obtain an acquittal. The principle is clearly expressed in Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360, approved in Davis v. U. S., supra, thus:

"The law clothes the accused with a presumption of innocence which he never loses until a verdict of conviction has been pronounced. He pleads nothing affirmatively, save in rare and exceptional instances, but by his plea of not guilty he puts upon the state the burden of establishing every fact necessary to constitute guilt. The changing phases of the evidence may make his case at various stages wear various aspects. At one moment it may seem that his guilt has been conclusively shown, and at the next it...