Landsborough v. United States, 10565.

• Decision Date: 01 June 1948
• Docket Number: No. 10565.,10565.
• Citation: 168 F.2d 486
• Parties: LANDSBOROUGH v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

168 F.2d 486 (1948)

LANDSBOROUGH v. UNITED STATES.

No. 10565.

Circuit Court of Appeals, Sixth Circuit.

June 1, 1948.

Wayne E. Miller, of Cleveland, Ohio (Wayne E. Miller, of Cleveland, Ohio, of counsel; and Griswold, Leeper, Miller & Corry, of Cleveland, Ohio, on the brief), for appellant.

Frank E. Steel, of Cleveland, Ohio (Don C. Miller, and Frank E. Steel, both of Cleveland, Ohio, on the brief), for appellee.

Before HICKS, ALLEN and MARTIN, Circuit Judges.

HICKS, Circuit Judge.

Appellant, Dr. Landsborough, was indicted and convicted of purchasing "a derivative of opium, to wit: forty (40) one-quarter grain Morphine Sulphate tablets, the same not being in the original stamped package, in violation of Section 2553, Title 26, United States Code 26 U.S.C.A. Int. Rev.Code, § 2553." He appealed.

The Government's evidence in resume is: that appellant was a doctor but had no license to handle or dispense narcotics since 1945; that on the 20th day of January, 1947, the date alleged in the indictment, Narcotic Agents McDonald and Ripberger, followed George Bishop, who was driving appellant's car, from the Lynnfield drugstore in Cleveland, Ohio, to Hiram, Ohio, where Bishop lived, and later to appellant's home at Garrettsville, Ohio, where Bishop left the car in the garage and went into appellant's home. When he came out he was accosted by the narcotic agents and questioned. The agents and Bishop then returned to appellant's house and found him in the kitchen. The identity of the agents was disclosed and Bishop said to appellant, "I just told them I brought you some morphine tablets." Agent McDonald followed appellant into another room and appellant came back into the kitchen, after telling McDonald he had some drugs, and laid a small vial Government Exhibit No. 2 on a table in the presence of Bishop and the agents. The vial contained forty tablets of one-fourth grain morphine sulphate and bore neither label nor tax stamps.

Both, at the close of the Government's testimony and of all the testimony, appellant moved for a directed verdict. These motions were overruled.

Appellant testified in his own behalf. He stated that the agents knocked on the back door; that Mrs. Landsborough was not at home; that in attempting to answer the knock he was moving into the kitchen as they walked in; that Mrs. Landsborough came in about fifteen minutes later; that while he was conversing with the agents he heard the front door open; that he excused himself and walked through the dining room and another small room into the office; that he told an arriving patient that he could not see her for some time and went back to the kitchen; that as he passed a table in the office he saw a vial of tablets lying there; that not knowing exactly what the vial contained, he picked it up and put it in his pocket; that when he got to the kitchen the agents began to search him and he put the bottle of tablets on a table without comment; that he did not at any time purchase the morphine sulphate tablets and that to his knowledge no one purchased them for him; that he picked up the vial from the table because he did not think they should be there; that it turned out that the vial he picked up in the office was the same vial that had been issued to him a week before on a prescription written by Dr. Deyell for fifty tablets of quarter grain morphine sulphate and that the prescription had been filled in Koshes' drugstore in Ravenna; that it was written for fifty tablets because appellant intended to go to Florida. Appellant further testified that Bishop came into the house about ten minutes...