Fiunkin v. United States
| Decision Date | 18 May 1920 |
| Docket Number | 3398. |
| Parties | FIUNKIN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank J. Hennessy, of San Francisco, Cal., for plaintiff in error.
Annette Abbott Adams, U.S. Atty., and Wilford H. Tully, Asst. U.S Atty., both of San Francisco, Cal.
Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.
The defendant, plaintiff in error here, was indicted by two counts, one for having sold to one Donovan Collins one quarter dram of morphine, and the other for having sold to him one quarter dram of cocaine, without having paid the tax as required by what is known as the Harrison Narcotic Act, of December 17, 1914. After trial, the jury found him guilty on both counts. At the close of the government's case, the defendant moved for an instructed verdict in his favor. This was denied, and, the defendant offering no testimony, the case went to the jury under instructions.
The evidence shows that Dr. C. W. Montgomery, who is connected with the Internal Revenue Department, and Joseph Condit, who had been detailed by the United States Army to the Department of Justice, on the date named in the indictment took with them Donovan Collins, an addict, to 1022 Webster street, in the city of San Francisco, and there gave to him a marked $5 bill and a marked silver half dollar, and instructed him to go into the defendant's place of business and purchase a quarter dram each of morphine and cocaine. Collins went in and made the purchase from defendant of the morphine and cocaine, which defendant is charged with selling without paying the tax as required by law. When the purchase had been consummated, the defendant was arrested, and under search warrant search was made of his person and his place of business. The marked money was found on his person, and five other packages of morphine were found on the premises.
The question presented for decision is whether the court erred in not directing a verdict for defendant, upon the ground and for the reason that the government officers lured and incited the defendant to commit the offenses with which he was charged.
It is argued that the defendant was induced, through the machinations and instigation of the government officers, to commit the offense, or, in other words, that he was entrapped by such contrivance of the officers to do the thing which the law condemns. The evidence fails to show, however, that such was the case. The officers had nothing to do with the defendant's having the drugs in his possession. They had nothing to do with his willingness to sell the same for a consideration. They had nothing whatever to do with the conditions that prevailed prior to the time they...
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