Sullivan v. United States

• Decision Date: 19 October 1922
• Docket Number: 5891.
• Parties: SULLIVAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

283 F. 865

SULLIVAN v. UNITED STATES.

No. 5891.

United States Court of Appeals, Eighth Circuit.

October 19, 1922

James A. Embry, of Chandler, Okl., and S. A. Horton, of Oklahoma City, Okl., for plaintiff in error.

W. A Maurer, U.S. Atty., and J. W. Scothorn, Asst. U.S. Atty both of Oklahoma City, Okl., for defendant in error.

Before SANBORN and STONE, Circuit Judges, and MUNGER, District Judge.

SANBORN Circuit Judge.

This writ of error challenges the legality of the trial and proceedings in this case, which resulted in the conviction of H. E. Sullivan, the defendant below, and his sentence to imprisonment in the federal penitentiary for 18 months for his alleged unlawful and felonious obtaining, in violation of the Anti-Narcotic Act (U.S. Comp. Stat. Sec. 6287h), for other purposes than the use, sale, and distribution thereof by him in the conduct of a lawful business in the drugs or in the legitimate practice of his profession from John Schapp & Sons at Ft Smith, Ark., four ounces of morphine sulphate and three drams of cocaine, by means of an order form lawfully sold and delivered to Dr. L. M. Harrison, a registered physician of Hominy, Okl.

The question which the record in this case presents is whether or not there was substantial evidence at the trial that the defendant, Sullivan, used the order form to Dr. Harrison, the means, the use of which is denounced by the act, in obtaining or receiving the drugs. There was no conflict in the evidence, and it disclosed these facts: Some one stole some order forms from Dr. L. M. Harrison. On one of them some one other than the doctor signed his name, the address Warwick Okl., an order for the morphine sulphate and cocaine described in the indictment, inclosed them in a letter dated Warwick, Okl., March 27, 1920, with a draft for $68 and a request to ship the narcotics by express, and mailed this letter and its contents to John Schapp & Sons, wholesale druggists at Ft. Smith, Ark. There was no evidence in the case that the defendant did any of these things. John Schapp & Sons cashed the draft and sent the narcotics by express, addressed to L. M. harrison, Warwick, Okl. The express package containing them arrived at Warwick about 5 in the afternoon of March 30, 1920. It was taken from the train by the express agent and placed upon the truck to be taken to the railway station. The defendant, Sullivan, was on the platform near the truck. He picked up the package and walked from 3 to 12 feet towards the station when a deputy sheriff arrested him. He threw the package on the truck and said it was not his. He had been in Warwick during that day and had inquired at the post office once or twice whether there was any mail for Dr. L. M. Harrison or whether Dr. Harrison had received his mail. The county attorney took the express package and receipted for it to the express company. There was no other evidence that the defendant, Sullivan, obtained or aided any one in obtaining these drugs by means of the Harrison order form, or by means of any other order forms. The defendant, Sullivan, testified that in March, 1920, he had been for three years, and then was, addicted to the use of morphine and other narcotics, that he was not a wholesaler or retailer thereof; that he never sold a speck of them in his life; that he had been a bookkeeper; that he lived with his mother in Oklahoma City; that he had become acquainted in Oklahoma City with a man who said his name was Harrison who was a peddler of narcotics and from whom he had bought some of them for his own use; that this man Harrison had told him to meet him on March 30, 1920, at Warwick; that he (Harrison) would then have some morphine there that he could furnish to him for his own use, and that he went to Warwick on that day to meet this Harrison and get some morphine; that he hired Curly Weiner, who lived in Oklahoma City, had a car, and was an addict and a dealer in narcotics, to drive them to Warwick; that he met the trains there on March 30, 1920, inquired at the post office for mail for Harrison, and stayed at Warwick all day to meet him, but never found him; that he never claimed the express package, never offered to receipt for it, told the officers on his arrest and constantly thereafter that it was not his, that his name was H. E. Sullivan, and gave them his address in Oklahoma City. He testified that he never saw or signed a Harrison order form, and that he never sent any mail to John Schapp & Sons. The witnesses for the government corroborated Sullivan's testimony that when he was arrested and after his arrest he told them that the express package was not his, that he gave them his name and his residence in Oklahoma City, and they testified that he then gave to them the same explanation of his presence in Warwick that he testified to at the trial. No witness came to contradict the testimony of the defendant, and there was no other evidence at the trial which has not now been recited which ought to or could lawfully change the result which should have followed...