Walker v. United States

• Decision Date: 17 October 1951
• Docket Number: No. 4300.,4300.
• Citation: 192 F.2d 47
• Parties: WALKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

192 F.2d 47 (1951)

WALKER v. UNITED STATES.

No. 4300.

United States Court of Appeals Tenth Circuit.

October 17, 1951.

Elmore A. Page, Tulsa, Okl., for appellant.

John S. Athens, Tulsa, Okl. (Whit Y. Mauzy, Tulsa, Okl., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

Appellant, Anna Lee Walker, was indicted in an indictment containing three counts, charging her with violating Title 18 U.S.C.A. § 1001.¹ Count one charged that on or about March 1, 1951 * * * Anna Lee Walker knowingly and wilfully made a false representation in a matter within the jurisdiction of an agency of the United States, in that she at the time and place set out in the indictment procured a prescription for four ¼ grain morphine sulphate tablets from Dr. O. A. Flanagan, falsely representing to him that her address was 822 South Cheyenne, Tulsa, Oklahoma. Count two charged that on or about March 1, 1951, she knowingly and wilfully used a false writing (the prescription which she had obtained), knowing same to contain a false statement, in that she uttered and filed with the William Penn Drug Store, 408 South Boston, in the City of Tulsa, Oklahoma, the prescription which she had obtained from Dr. Flanagan, knowing that said prescription contained the false statement that her address was 822 South Cheyenne, Tulsa, Oklahoma. Count three charged that on or about March 1, 1951, she knowingly and falsely made a false writing, knowing same to contain a false entry, in that she purchased from the Sooner Drug Store in Tulsa one ounce of paregoric and knowingly and falsely registered for such purchase her address as 1719 South Main Street, Tulsa. A trial was had to the court. Appellant was found guilty on all three counts and was sentenced to a term of imprisonment of eighteen months on each count, the sentences being made to run concurrently.

The evidence shows that prior to March 1, 1951, appellant had been living with her parents at 106 First Street South East, Miami, Oklahoma; that her occupation was that of a waitress; that on February 28 she came to Tulsa, bringing with her all of her clothes; that she came at the solicitation of Betty Lightfoot, who was living with her mother at 1719 South Main Street, Tulsa, Oklahoma; that Betty met her at the station; that she went with her to her mother's home where she left her grips and stayed all night; that on the evening of February 28 she and Betty went to the apartment of Sherry Delphine Smith at 802 South Cheyenne, Tulsa; that there she changed into some clean clothes belonging to Delphine; that she and Betty then went out and apparently stayed out all night and then returned to Betty's mother's home at 1719 South Main, wearing Delphine's clothes. She testified that because of conditions at Betty's mother's home, on her first visit to Delphine's apartment, she talked with her about staying at her apartment until she found work; that she talked with her some time the next morning and that it was understood that she was to come to Delphine's house that afternoon and stay with her.

About ten o'clock on the morning of March 1, she and Betty Lightfoot went to the Sooner Drug Store, where she obtained the paregoric involved in count three of the indictment. The records required to be kept by druggists for the sale of paregoric under the Federal regulations contained appellant's signature and gave her address as 1719 South Main. Thereafter about 1:15 P. M. she went to the office of Dr. Flanagan, where she obtained a prescription for four ¼ gain morphine sulphate tablets, set out in count one. The prescription was filled out and signed by Dr. Flanagan, who recorded her address as 822 South Cheyenne. She took the prescription giving her address as 822 South Cheyenne to the William Penn Drug Store, where it was filled and was given by the pharmacist to Betty Lightfoot, appellant being present in the store.

Thomas Richison, a witness called on behalf of the Government, testified that he was operating the Sooner Drug Store; that he kept a register for the recording of sales of exempt narcotic drugs; that anyone purchasing such drugs must register them in this register; that it was the practice in his store to require the purchaser to register such purchase, rather than the clerk who makes the sale. Dr. Flanagan testified that appellant, Anna Lee Walker, gave him the address 822 South Cheyenne and that he so recorded it in the prescription.

Delphine Smith, with whom appellant claims to have made arrangement to live some time during the day of March 1, does not live at 822 South Cheyenne, but lives at 802 South Cheyenne. H. B. Westover, the Federal Narcotic Agent, who arrested appellant, testified that at the time she told him she had given the address 806 and not 822 to the Doctor when she procured the prescription; that appellant told him that 806 was the address of Delphine Smith. There is no residence at 806.

Two grounds are urged for reversal — (1) that the evidence is wholly insufficient to sustain the judgment of guilty, and (2) that the judgments are void because Title 26 Code of Federal Regulations §§ 151.168 and 151.185, under which the charges are laid, are not within the power delegated to Congress by the United States Constitution.

The attacks upon counts one and two may be considered together. When appellant obtained the prescription for the morphine, upon which counts one and two were predicated, her address in the prescription and in the required record in the William Penn Drug Store was recorded as 822 South Cheyenne Street, Tulsa. That was not her address at the time she got the prescription and the drugs. The only questions are — did she knowingly and wilfully give an erroneous address to Dr. Flanagan when she obtained the prescription, and did she later present it at the drug store where she obtained the drugs and, if so, did she do this wilfully and knowingly. Dr. Flanagan testified that she gave him this address and that he recorded it as she gave it to him in the prescription. True, on cross-examination, he testified that he could have been mistaken and that he was "not infallible", but this did not overcome his positive statement that he recorded her address as she gave it to him. It is more the mark of a witness who wants to be fair, rather than evidence of a doubt as to what occurred.

If appellant knowingly and falsely gave her address as 822 South Cheyenne, Tulsa, when she obtained the prescription for the morphine tablets, she is guilty of the offense laid in count one and also of the offense charged in count two. Wilfulness is an element of the offense charged² and it was necessary for the Government to prove beyond a reasonable...