Francis v. United States, 5424.

• Citation: 239 F.2d 560
• Decision Date: 14 December 1956
• Docket Number: No. 5424.,5424.
• Parties: Alfred Smith FRANCIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

239 F.2d 560 (1956)

Alfred Smith FRANCIS, Appellant, v. UNITED STATES of America, Appellee.

No. 5424.

United States Court of Appeals Tenth Circuit.

December 14, 1956.

Wendell A. Peters, Denver, Colo., for appellant.

Robert S. Wham, Asst. U. S. Atty., Denver, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., with him on the brief), for appellee.

Before BRATTON, Chief Judge, and HUXMAN and PICKETT, United States Circuit Judges.

HUXMAN, Circuit Judge.

Appellant was indicted, tried, and convicted for violating 26 U.S.C. § 4744(a) (I.R.C.1954), unlawful possession of marihuana. The issue of guilt went to the jury solely on the evidence of the Government. The defense rested without producing evidence in contradiction thereof. Grounds for reversal urged are that the evidence is insufficient to show that appellant knowingly had in his possession the marihuana seeds discovered in the car he was driving and that the evidence was incompetent to show that the seeds were capable of germinating which they must be to be within the statutory definition of marihuana, 26 U.S.C. § 4761(2).

The Government's evidence shows that Denver detectives apprehended appellant in an automobile in which marihuana smoking equipment and a cellophane package of marihuana seeds were found. Appellant admitted these articles were his. In fact, it was by his admissions that the detectives located several pieces of the smoking device in the car. He told them he had smoked a marihuana cigarette earlier that day and that the smoking device was used in smoking both cigarettes and the seeds. Smoking the seeds gave him a "terrific" headache. He explained that he had salvaged the seeds from a purchase of a half-can of marihuana and intended to take them to South America to enter the business of raising marihuana. He related substantially the same story to federal agents.

The arresting officers locked the envelope in which they placed the seeds in the evidence locker in the Denver detectives' vault. The vault is always unlocked but the locker is unlocked only when empty and by closing the lid, as in this case, when the evidence is placed in it it snaps locked. Only one detective has a key to this locker. He removed the envelope to analyze and examine the seeds which he found to be marihuana. After returning them to the locker he later gave them to Agent Ford, Federal Narcotics Agent, who gave them to an agent named Marsh, the evidence custodian. Marsh testified that the envelope has always been in his possession save on one occasion when checked out to Ford. Ford testified that he took them to one Twyman Klayder, a chemist with the United States Food and Drug Administration. Klayder testified that he determined the seeds to be marihuana. He removed ten seeds from the envelope, planted them, and within three and a half days four had sprouted. He resealed the envelope and returned the seeds to Ford who in turn returned them to Marsh.

Appellant's contention that this uncontradicted evidence fails to constitute possession of marihuana lacks merit. Contrary to his allegation, this is far more than merely circumstantial evidence that appellant and the seeds were found in the same car. The testimony of his reported admissions shows that the seeds and the smoking paraphernalia were his and that he intended to take the seeds to South America for farming purposes. A stronger case for possession is difficult to conceive. Appellant relies on United States v. Maghinang, D.C.Del.1953, 111 F.Supp. 760, in which the accused was acquitted for failure to show possession. That case fails to give him assistance, however. The accused there was apprehended while driving a borrowed car. Thorough search revealed that there were forty-one marihuana cigarettes in a well-concealed spot in the auto. When questioned...