Hood v. United States

• Decision Date: 25 September 1926
• Docket Number: No. 7307.,7307.
• Citation: 14 F.2d 925
• Parties: HOOD v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

14 F.2d 925 (1926)

HOOD v. UNITED STATES.

No. 7307.

Circuit Court of Appeals, Eighth Circuit.

September 25, 1926.

Warren K. Snyder, of Oklahoma City, Okl. (R. P. Hill and Edward C. Snyder, both of Oklahoma City, Okl., on the brief), for plaintiff in error.

W. L. Coffey, Asst. U. S. Atty., of Tulsa, Okl. (John M. Goldesberry, U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and JOHN B. SANBORN, District Judge.

KENYON, Circuit Judge.

Plaintiff in error was convicted in the United States District Court for the Northern District of Oklahoma upon each of the three counts of an indictment charging him respectively with the unlawful purchase of one ounce of morphine on the 23d day of July, 1925, with having unlawful possession of the same, and with making an unlawful sale thereof in violation of the provisions of the Act of Congress of December 17, 1914, § 1, as amended by the Act of Congress of February 24, 1919, § 1006, commonly known as the Harrison Anti-Narcotic Act (section 6287g, vol 1, 1919 Supp. U. S. Compiled Statutes of 1916).

Plaintiff in error filed 25 assignments of error, many of which are not argued, and as to a number of which the objections now urged were not in any way suggested in the trial court. For instance, counsel for plaintiff in error argues as to the failure of the court to give a certain instruction requested, but admits that this instruction is not found in the record. He also argues as to the impropriety of certain instructions given. There were no objections or exceptions taken to any of the instructions. Hence questions relating thereto are not before us. There is no necessity of taking up the assignments of error seriatim.

The important ones relate to the action of the court in refusing to sustain a motion to require the government to elect upon which count of the indictment it relied for conviction; for refusing to sustain the demurrers to the various counts of the indictment at the conclusion of the plaintiff in error's case, and in not sustaining the motion to direct a verdict for plaintiff in error upon each of the counts of the indictment; also alleged errors in admitting evidence over objections; also certain remarks of the court which it is claimed tended to prejudice the rights of plaintiff in error and to influence the jury to disbelieve his testimony. In view of the conclusion reached, as hereinafter announced, it is unnecessary to consider the question raised with regard to defendant's motion to require the government to elect upon which count of the indictment it relied for conviction.

We are satisfied from a careful examination of the record that there was absolutely no evidence in the case to sustain the first count of the indictment, which is the one relating to the purchase. Some effort is made by the government in its brief to sustain the conviction on this count, not by reason of any evidence, but by virtue of a claimed presumption of purchase arising from the fact that the jury found the defendant guilty on the third or the sale count. It must be borne in mind that this is not a case of admitted possession of the drug, from which inferences and presumptions under the statute might be drawn. Possession was denied. To say that, because a jury found plaintiff in error guilty of a sale and also of possession, a presumption of purchase arises sufficient in itself to warrant conviction, and relates back to the time the court passed on the motion, is in our judgment carrying the doctrine of presumption entirely too far. Without pursuing this subject further, we may say we have reached the conclusion that the court should have directed a verdict of acquittal on the first count.

We pass to the third count, which charges that defendant did "willfully, unlawfully, and feloniously sell, barter, and exchange, to one George H. Glessner, one ounce of morphine, which said morphine, at the time of said sale, barter, and exchange, was not in pursuance of a written order of the said George H. Glessner, and not within any of the exceptions or exemptions providing for the sale, barter, or exchange of narcotics in the aforementioned act of Congress." There was testimony to sustain this charge. George Glessner testified directly to buying an ounce of morphine from defendant and paying therefor the sum of $100. Fred Glessner testified that he was present with his brother on the 23d day of July, 1925, when the morphine was purchased, and detailed the transaction....