Jones v. United States
Citation | 377 F.2d 742 |
Decision Date | 01 June 1967 |
Docket Number | No. 18584.,18584. |
Parties | Maurice JONES, Appellant, v. UNITED STATES of America, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Norman S. London, St. Louis, Mo., for appellant.
William C. Martin, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee.
Before VOGEL, Chief Judge, and GIBSON and HEANEY, Circuit Judges.
Maurice Jones, appellant herein, was tried and found guilty by a jury on a two-count indictment charging violations of 26 U.S.C.A. § 4704(a), which provides as follows:
(Emphasis supplied.)
Count 1 of the indictment provided:
The second count charged a similar violation on or about the 22nd day of October, 1965, and involved 7.63 grams of heroin.
The government's testimony indicated that on October 8, 1965, and also on October 22, 1965, the appellant, after making arrangements with one Dudley Brown to sell him the narcotics referred to, brought the narcotics to Brown's home where, in the presence of Brown and under the observation of an agent of the Federal Bureau of Narcotics, he, on the first occasion, placed the narcotics on a coffee table and took the $150 left thereon in payment. On the second occasion Brown handed the money ($125) to the appellant, who handed the narcotics to him. Appellant chose to testify in his own behalf. He was his only witness. He denied the sales, denied that he was in Brown's home on the two occasions referred to, and claimed to have been elsewhere. Obviously, the jury chose to disbelieve him.
It is Jones' contention on appeal that the District Court erred in overruling his motions for judgment of acquittal at the close of the government's case and again at the close of the entire case because the evidence presented was at variance and did not correspond with the indictment. In other words, he argues that he was specifically charged with an unlawful purchase of narcotics but that the evidence offered by the government was completely at a variance in that it dealt only with the sale of narcotics. Factually, the appellant's statement is correct. The government's entire evidence disclosed possession and unlawful sales by the appellant. For establishment of unlawful purchases it relies on the statutory presumption contained in § 4704(a), supra, in that "possession" of narcotic drugs without the appropriate taxpaid stamps is prima facie evidence of a violation of the statute. Appellant cites to us a number of cases, but only one of which lends credence or support to his contention. It is from this court, Hood v. United States, 8 Cir., 1926, 14 F.2d 925, certiorari denied, 273 U.S. 765, 47 S.Ct. 570, 71 L.Ed. 880. In that case the appellant had been convicted upon each of three counts of an indictment charging respectively (1) the unlawful purchase of morphine on the 23rd day of July, 1925, (2) having unlawful possession of the same and (3) making an unlawful sale thereof, in violation of the Harrison Act, § 6287(g), Vol. 1, 1919 Supp., U. S. Compiled Statutes of 1916 (the predecessor of 26 U.S.C.A. § 4704(a)). This court held that the statutory presumption flowing from a showing of possession and sale was insufficient to sustain the conviction on Count No. 1 charging an unlawful purchase. The ruling in Hood was, however, effectively overruled by the Supreme Court two years later in Casey v. United States, 1928, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632. That case held that the statutory presumption arising out of possession was sufficient to sustain a charge of unlawful purchase and also of venue. Mr. Justice Holmes said, at page 418 of 276 U.S., page 374 of 48 S.Ct.:
Since Casey we know of no court holding with Hood. This court and a number of the other Circuits have all followed the holding of Casey and accepted the statutory presumption.
Under a similar narcotics prosecution, this court said in Ware v. United States, 8 Cir., 1962, 309 F.2d 457, 459:
In holding that possession established the statutory presumption of an unlawful purchase, we also concluded that the presumption included venue. We said, at page 462 of 309 F.2d:
In Frazier v. United States, 1947, 82 U.S. App.D.C. 332, 163 F.2d 817, affirmed, 1948, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187, rehearing denied, 336 U.S. 907, 69 S.Ct. 488, 93 L.Ed. 1072, the court said at page 818 of 163 F.2d:
...
To continue reading
Request your trial-
United States v. Liguori
...2d 789 (1967) (21 U.S.C. Section 174); United States v. Gibson, 310 F.2d 79 (2d Cir. 1962) (21 U.S.C. Section 176a); Jones v. United States, 377 F.2d 742 (8th Cir.), cert. denied, 389 U.S. 885, 88 S.Ct. 157, 19 L.Ed.2d 183 (1967) (26 U.S.C. Section 4704(a)). Under the circumstances the fail......
-
Taylor v. United States
...narcotics. This is because possession establishes prima facie evidence of the act proscribed by the statute. Jones v. United States, 377 F.2d 742, 745 (8 Cir. 1967), cert. denied 389 U.S. 885, 88 S.Ct. 157, 19 L.Ed.2d 183. The evidence here is undisputed, and in fact was admitted by Taylor ......
-
U.S. v. Furina
...707 F.2d 82 ... UNITED STATES of America ... The Residence of Nicholas FURINA, et al ... Nos. 82-5584, 82-5614 ... ...
-
Shea v. Gabriel
...520 F.2d 879 ... Thomas SHEA, Plaintiff-Appellant, ... James GABRIEL, United States Attorney, et al., Defendants-Appellees ... No. 75-1096 ... United States Court of Appeals, ... ...