Hamilton v. United States, 4987.
| Citation | 219 F.2d 364 |
| Decision Date | 04 February 1955 |
| Docket Number | No. 4987.,4987. |
| Parties | Chester S. HAMILTON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
219 F.2d 364 (1955)
Chester S. HAMILTON, Appellant,
v.
UNITED STATES of America, Appellee.
No. 4987.
United States Court of Appeals, Tenth Circuit.
February 4, 1955.
John S. Boyden, Salt Lake City, Utah, for appellant.
A. Pratt Kesler, U. S. Atty., Salt Lake City, Utah, for appellee.
Before PHILLIPS, Chief Judge, BRATTON, Circuit Judge, and VAUGHT, District Judge.
VAUGHT, District Judge.
The sole question here is whether or not the trial judge abused his discretion in vacating the probation of appellant.
The appellant, Chester S. Hamilton, owned and operated a drugstore in Brigham City, Utah, and also owned a 51 per cent partnership interest with Glade R. Day in a drugstore known as the Clearfield Pharmacy, located approximately 35 miles from Brigham City. The Clearfield Pharmacy (hereinafter referred to as the Pharmacy), was managed entirely by Day. Hamilton made infrequent visits to the Pharmacy but aside from his ownership, he exercised no control over its management.
In November, 1949, grand jury indictments were returned against Hamilton and Day charging each with evading and attempting to defeat a large part of the income and victory taxes due and owing by them to the United States of America for the calendar year 1943. The indictment against Hamilton contained three counts. On the 29th of November, 1949, Hamilton entered a plea of guilty on counts two and three and a plea of not guilty on count one, and thereafter on December 23, 1949, it was ordered that Hamilton be placed on probation
Following their indictment, Hamilton and Day procured the services of a competent auditor who took charge of the bookkeeping in the Pharmacy and made monthly reports to Hamilton, and apparently all of the information Hamilton had regarding the financial conduct and management of the Pharmacy was through these reports.
On April 14, 1954, an information, Cr. 51-54, was filed in the United States District Court for the District of Utah, charging the Pharmacy with violation of Sections 331 and 333, U.S.Code, Title 21, in six counts, and charging Glade R. Day with violation of the same sections in five counts. All of said counts were based upon sales of drugs within the purview of said sections without a prescription therefor from a practitioner licensed to administer said drugs, which resulted in said drugs being misbranded while held for sale in violation of said sections. On April 30, 1954, Day entered a plea of guilty on behalf of the Pharmacy to the six counts of the information, and a plea of guilty on behalf of himself on five counts. Thereafter, on June 7, 1954, Day appeared in court with counsel and the Pharmacy was sentenced to pay a fine of $1,000.00 on each of six counts, or a total of $6,000.00, and Day was sentenced to one year on each count to run consecutively. Sentence was suspended and the defendant placed on probation for five years. In the criminal income tax case, No. 15913, Day's probation therein was revoked by reason of his violation of law in criminal case No. 51-54, and he was sentenced to serve two years imprisonment.
On June 24, 1954, the court on its own motion issued an order directed to appellant, requiring him to appear before the court at ten o'clock the next morning to show cause why his probation should not be revoked. Appellant appeared with his attorney who stated to the court that appellant had no knowledge of the violations of the Pharmacy; that the appellant managed another store at Brigham City; that Day managed the Pharmacy; that appellant was present at the Pharmacy very infrequently; that the profits were...
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