Nigro v. United States

• Decision Date: 09 March 1925
• Docket Number: No. 6632.,6632.
• Citation: 4 F.2d 781
• Parties: NIGRO v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

4 F.2d 781 (1925)

NIGRO v. UNITED STATES.

No. 6632.

Circuit Court of Appeals, Eighth Circuit.

March 9, 1925.

L. C. Boyle and A. N. Gossett, both of Kansas City, Mo. (E. C. Ellis, of Kansas City, Mo., on the brief), for plaintiff in error.

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

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

PHILLIPS, District Judge.

Mike Nigro, hereinafter called defendant, was charged by one indictment with having purchased 79 one-eighth ounce bottles of morphine and 73 one-eighth ounce bottles of cocaine, not in or from the original stamped package, contrary to the provisions of section 1, as amended, of the Anti-Narcotic Act (42 Stat. 298; Comp. St. Ann. Supp. 1923, § 6287g), and by another indictment with knowingly having in his possession certain false, forged, and counterfeit internal revenue stamps, in resemblance and similitude of the stamps provided under section 1, as amended, of the Anti-Narcotic Act (42 Stat. 298; Comp. St. Ann. Supp. 1923, § 6287g), contrary to the provisions of section 151 of the Criminal Code (35 Stat. 1116; Comp. St. § 10321). The indictments were consolidated for the purposes of trial, and the defendant was found guilty and sentenced under both indictments.

The defendant was a registered pharmacist and operated a drug store in Kansas City, Mo. On or about January 24, 1923, C. O. Bradshaw, a narcotic agent, and W. O. McDonald, an officer employed by the Law Enforcement Association of Kansas City, made an inspection of defendant's narcotic drugs at his place of business, then located at 600 East Fifth street, Kansas City, Mo. At the time of this inspection McDonald believed the stamps on part of the drugs looked queer and so advised Bradshaw. Thereafter the defendant sold his store at 600 East Fifth street, and on February 15, 1923, opened a store at 123 East Fifth street. He reserved from the sale his stock of liquors and narcotics, and moved the same to his new location on February 15, 1923. On the morning of February 20, 1923, Bradshaw made another inspection of defendant's narcotic drugs at the new location. After examining the drugs, he went to the office of W. H. Davenport, an officer in the United States Secret Service specially charged with the enforcement of the laws relating to counterfeiting. During the afternoon of February 20, 1923, Davenport and Bradshaw returned to defendant's drug store, examined the narcotic drugs, and determined that part of the drugs were stamped with counterfeit stamps. They seized the entire stock, consisting of 188 one-eighth ounce bottles of cocaine and a small package of cocaine, and 179 one-eighth ounce bottles of morphine and a portion of a bottle of morphine, and took the same to the office of Mr. Davenport. They there examined and checked the drugs in the presence of the defendant, and found counterfeit stamps on 79 bottles of morphine and 73 bottles of cocaine.

The defendant testified that at the time the stocks of narcotics and liquors were moved from the old to the new location he had in his employ a clerk by the name of Pennimore, who had worked for him approximately one month prior to February 15, 1923; that Pennimore moved the stock of narcotics in an automobile from the old to the new location; that on the night of February 15, 1923, Pennimore disappeared, having four days' pay coming to him; that defendant had endeavored to locate Pennimore, but had been unable to do so; that at the 600 East Fifth street store the narcotics were kept in a closet, the key to which was left in an unlocked drawer back of the prescription case; that shortly after the narcotics had been moved to the new location defendant noticed them on the floor in a small room which had been prepared for their safe-keeping, in about the same order as they had been kept in the old store; that his attention was not again called to the narcotics until February 20, 1923, when the inspection was made by the officers; that he had purchased the narcotics in good faith from Betz & Co. of Hammond, Ind., and prior to February 20, 1923, believed they carried genuine stamps; that he did not know how or when the drugs bearing the counterfeit stamps came into his stock; that in his opinion drugs with spurious stamps had been placed in his stock without his knowledge, and legitimate drugs taken therefrom; and that his records of purchases and sales indicated that he should have had in his stock on February 20, 1923, legitimate drugs equal to the total amount of legitimate drugs and spuriously stamped drugs found and seized on that date. Defendant also produced 10 witnesses, most of whom had known him from childhood, who testified to his good character.

In his charge to the jury, with reference to the first indictment above referred to the learned trial judge, among other things, said:

"Now, gentlemen, the law is that, if any person happens to have possession of such container without the revenue stamp of the government affixed, even though that person is a registrant, such person violates this law; and if he has possession of such drug as a dealer, then the law presumes that such person made an unlawful purchase of the drugs. It is not necessary under the law for the government to show that such person made the actual purchase, but the mere possession of such drug in packages upon which the revenue stamp has not been affixed carries with it the presumption of an unlawful purchase.

"In this case the defendant says in his testimony that such drugs came into his hands by accident. If you believe from the testimony that such drugs did come into his possession by accident, or by substitution by some person unknown, and that he knew nothing about such drugs being in his possession, then, under such circumstances, of course, it will be your duty to acquit him.

"On the other hand, the government has shown to you that the drugs in question — that is to say, the quantities mentioned in the indictments that were read to you — contained spurious or counterfeit or forged or false revenue stamps. It is hardly in controversy here that such stamps were spurious or forged.

"Now, gentlemen, if you find and believe from the testimony that a purchase of such drugs was made by the defendant, and that they had affixed to them these counterfeit stamps, if you believe they are counterfeit — and you would not be justified in reaching any other conclusion with respect to the stamps — then you will find the defendant guilty in this case, notwithstanding you may further find and believe he did not know that they were counterfeit or false or forged, because the government imposes on every dealer in this drug the obligation to take the chance, and to purchase such drug at his peril. He may be innocent of knowledge of this fact; he may believe they are genuine; but that does not satisfy the government. * * *

"The absence of an appropriate stamp means absence of the genuine revenue stamp. Not even a postage stamp that might be of greater value, not even a stamp that might be of equal value, will satisfy the government. There must be an appropriate narcotic stamp that must be placed on the package, regardless of the good intentions of the purchaser, under any circumstances. In other words, innocence on the part of the purchaser will not excuse him. So in this case, if you find from the evidence that the defendant purchased such drugs, and he was ignorant of the fact that these stamps were false or counterfeit or forged, you will find him guilty just the same on this indictment."

After the jury had deliberated for some time, they returned into open court, and the following, as disclosed by the record, from which we quote, occurred:

"The court inquired of the foreman of the jury if they had agreed upon a verdict. The foreman replied that the jury had not agreed. The court inquired if the foreman thought they would likely agree. The foreman replied that it did not appear that they would likely be able to agree. The court then inquired if the difficulty of the jury was upon a question of fact or in respect to the law of the case, and stated that if it was upon a matter of law he would give further instructions, if they would indicate the difficulty, but if it was upon a question of fact he would not be able to help them. The foreman replied that it was upon a question or issue as to facts. The court then requested the foreman that, without indicating how the jury stood in numbers, he, the foreman, should state to the court whether or not there was a predominance of the individual jurors in favor of a verdict one way or the other; the foreman replied there was a predominance. The court then instructed the jury that they should be subject, in their conferences and consultation among themselves, to the effect of reasonable argument, and should not obstinately and unreasonably hold out against a verdict, and should consider in...