Lamento v. United States

• Citation: 4 F.2d 901
• Decision Date: 30 March 1925
• Docket Number: No. 6619.,6619.
• Parties: LAMENTO v. UNITED STATES
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

4 F.2d 901 (1925)

LAMENTO v. UNITED STATES

No. 6619.

Circuit Court of Appeals, Eighth Circuit.

March 30, 1925.

W. G. Lynch, of Kansas City, Mo. (Henry C. Smith and Horace Guffin, both of Kansas City, Mo., on the brief), for plaintiff in error.

Charles C. Madison, U. S. Atty., and Samuel M. Carmean, Asst. U. S. Atty., both of Kansas City, Mo. (Charles S. Walden, Sp. Asst. U. S. Atty., and Harvey Roney, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for the United States.

Before SANBORN, Circuit Judge, and TRIEBER and PHILLIPS, District Judges.

SANBORN, Circuit Judge.

The defendant in the District Court below was indicted, tried, and convicted under the first count for a violation of sections 1 and 8 (sections 6287g, 6287n, U. S. Compiled Statutes) of the Anti-Narcotic Act of December 17, 1914, as amended February 24, 1919 (Comp. St. Ann. Supp. 1919, § 6287g), in that about July 5, 1923, at Kansas City, Mo., being a retail dealer, he was in possession of about six ounces of smoking opium without having paid the special tax provided by that act, and, under the second count, for a violation of the same act in that he purchased on or about the same date six ounces of smoking opium, "the same not being in or from the original stamped package." He was sentenced to imprisonment in the United States penitentiary for five years on each of the two counts; the sentence on the second count to run concurrently with that on the first count.

The evidence for the government was to this effect: That on July 6, 1923, W. O. McDonald, special officer of the Law Enforcement Association assigned to assist the government narcotic officers, commissioned metropolitan police commissioner, Pugh, deputy for county marshal's office, and Bradshaw, narcotic agent of the Internal Revenue Service, assigned to the Kansas City division, under a search warrant entered and searched room 306 of the Cotter Hotel in Kansas City. McDonald testified that he looked over the transom and saw a woman, Ruby McDonald, lying on the bed with a pipe for smoking opium beside her, that he smashed the transom, and saw the defendant and the woman throwing things out of the window, and the defendant going out through the window. No other witness testified that the defendant was the man in that room at that time, and Ruby McDonald testified that he was not there, and he and four other witnesses testified to the same effect, and that at the time of the search and seizure he was at 707 Highland, the residence of his fiancée. The officers mentioned testified that they found in this room 306 and on the roof of a building near the window in certain containers five or six ounces of smoking opium and a small box of pills sealed up, containing only a small amount, and that they also found the proper equipment for smoking opium, a pipe for that purpose, and an instrument they called the bowl for such a pipe, a lamp used in smoking opium, and a box containing gum opium prepared for smoking. Bradshaw testified that none of the opium which they found was in or from original stamped packages. Several witnesses testified that in conversation some months subsequent the defendant admitted that he was a smoker, that the equipment for smoking was his, that he was the man in the room who went out the window, and that he had at times peddled opium for a certain man whose name he gave. The defendant, on the other hand, testified that he never made any of these admissions, except that he was a smoker, an addict. There was no other evidence that he ever bought, sold, or possessed any opium or that he was a dealer or a distributor. There was no evidence that the defendant owned, lived in, or rented the building or the room, or the right to occupy it, or any part of it, where this opium was found.

In this state of the case counsel for the defendant complain of the charge of the court relative to each count of the indictment. At the opening of its charge the court properly stated to the jury that the court had nothing to do with the questions of fact in the case; that he might summarize the facts, but that this would be then merely for the purpose of aiding them in their deliberation; but they were not to be controlled by what the court might say as to any fact in the case. It then clearly stated to the jury the requirements by the government under the acts of Congress of paid revenue stamps on the containers or packages of the drugs used by manufacturers and sold to wholesalers, of the registration of such wholesalers, of their sales to the retailers exclusively in the original stamped packages, and of the retailer's registration. The court then reached the issue in the case whether or not, upon the evidence in the case, the charge in the first count of the indictment that the defendant was a retailer had been proved, and it charged as follows:

"Now, the retailer, when he is in possession of such drugs, he must possess two qualifications. In the first place, he must be registered with the government; and, in the second place, he must carry such drugs at all times in the original stamped package, so his sales must be made in the original stamped package, or from the original stamped package, and if any considerable quantity, for instance, the amount mentioned in the testimony, may be in possession of any person, it carries with it the conclusion that he is a retailer, and the obligation is upon him to register with the government, and it is of no consequence here as to whether he is actually registered or not. * * * Gentlemen, the court will charge you now that, if you believe and find from the testimony that the defendant was in possession of such drugs, namely, the opium that was offered and exhibited to you, on the 5th day of July, 1923, or at any time within three years before the 10th day of November, 1923, then, upon such testimony, you should find the defendant guilty as charged in the first count of the indictment."

In treating the question whether or not the defendant was the man in the room, the court charged:

"Now, gentlemen, there is but one question on that point for you; that is, to determine whether or not the man whom McDonald saw was in fact the defendant. If you believe that he was the defendant, and McDonald's statements are true, that it was the defendant he saw in the room at the time, and that he had in his possession the opium pipe and bowl and the jar of opium, then, gentlemen, if you believe that testimony, it will be your duty to return a verdict of guilty against the defendant on the first count, and, as I said to you heretofore, if you go further, and believe that he is guilty on the first count, then it will follow as a sequence that you will find him guilty on the second count of the indictment, because the law presumes, upon the testimony in this case, such packages being presented to you without any stamps upon them, and identified by the narcotic agents as being in that condition when they seized them in room 306, Cotter Hotel, then the law presumes that the defendant had made an unlawful purchase of such narcotic drugs; and, as I said, you should go no further, but find him guilty...