Weare v. United States

• Decision Date: 29 August 1924
• Docket Number: No. 6497.,6497.
• Parties: WEARE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

1 F.2d 617 (1924)

WEARE v. UNITED STATES.

No. 6497.

Circuit Court of Appeals, Eighth Circuit.

August 29, 1924.

Donald G. Hughes, of Minneapolis, Minn. (Neil Hughes, of Minneapolis, Minn., on the brief), for plaintiff in error.

Leland W. Scott, Asst. U. S. Atty., of St. Paul, Minn. (Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Before STONE and KENYON, Circuit Judges, and KENNEDY, District Judge.

KENYON, Circuit Judge.

Plaintiff in error was tried in the United States District Court of Minnesota, Fourth Division, upon an indictment in three counts charging a violation of the Act of December 17, 1914, commonly known as the Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-6287q). He was found guilty on the first and second counts, and by instruction of the court not guilty on the third count. The first count of the indictment charged that plaintiff in error, at the city of Minneapolis, county of Hennepin, and state of Minnesota, on the 9th day of February, 1923, being a person required to register under the terms of the Act of Congress approved December 17, 1914, did knowingly and unlawfully give to one Sittiden certain derivatives and preparations of opium, to wit, morphine, without having registered with the collector of internal revenue, and without having paid the special tax as provided by the said act of Congress. Count 2 charged plaintiff in error with the same offense by giving to one Walsh derivatives of opium.

The first assignment of error is not argued; hence waived. Braden v. United States (C. C. A.) 270 Fed. 441. Three questions are urged by plaintiff in error under the assignments argued as grounds for reversal of the judgment. We consider them in the order presented.

First. It is contended that Weare does not come within the class of those required under the Act of December 17, 1914, to register and pay the special tax, because the evidence fails to show that he dealt in, sold or gave away narcotics; in other words, that the evidence does not show him to have been in the business of selling or giving away narcotics.

The indictment is for an offense under section 1 of the Act of December 17, 1914 (Comp. St. § 6287g) which provides as follows: "Every person who * * * gives away opium or coca leaves or any compound, manufacture, salt, derivative or preparation thereof, shall register," etc. "It shall be unlawful for any person required to register under the terms of this act to * * * give away any of the aforesaid drugs without having registered and paid the special tax provided for in this section."

There was evidence in the case from which a jury would be warranted in finding that plaintiff in error on one occasion gave away the narcotics referred to. The case of Greenberg v. United States, 285 Fed. 865, was a case where it was contended, as here, that a single sale did not constitute the vendor a dealer. This court held that every person under the act was prohibited from selling and from making even a single sale without having registered and paid the special tax. This authority, we think, settles the proposition. No person has the right to make a single sale unless he is registered and has paid the special tax as provided by the act. In Braden v. United States (C. C. A.) 270 Fed. 441, it was claimed that the evidence was insufficient to show that the defendant was a person required to register under section 1 of the act. The court, referring to this section, said, "The law does not say `carry on the business of'" etc., and held that defendant was a person required to register under said section. Most of the cases cited by plaintiff in error on this question, such as Swartz v. United States (C. C. A.) 280 Fed. 115, and United States v. Wilson (D. C.) 225 Fed. 82, deal with section 8 of the Act of December 17, 1914, which relates to the possession of the drugs mentioned in the act, and are not in point here.

Second. Another assignment of error raises question as to certain portions of the charge of the court, and also statements made by the court in the presence and hearing of the jury, the complaint being that the same were argumentative.

It is the well-established rule in the United States courts that the judge may comment on the evidence and may express his opinion on the facts, provided he clearly leaves to the jury the decision of fact questions. Little v. United States (C. C. A.) 276 Fed. 915; Savage v. United States (C. C. A.) 270 Fed. 14; Lovejoy v. United States, 128 U. S. 171, 9 Sup. Ct. 57, 32 L. Ed. 389; Simmons v. United States, 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968; Allis v. United States, 155 U. S. 117, 15 Sup. Ct. 36, 39 L. Ed. 91; Johnson v. United States (C. C. A.) 270 Fed. 168; Oppenheim v. United States, 241 Fed. 625, 154 C. C. A. 383; Dillon v. United States (C. C. A.) 279 Fed. 639; Starr v. United States, 153 U. S. 614, 14 Sup. Ct. 919, 38 L. Ed. 841; Horning v. District of Columbia, 254 U. S. 135, 41 Sup. Ct. 53, 65 L. Ed. 185.

The instructions, however, should not be argumentative. The court cannot direct a verdict of guilty in criminal cases, even if the facts are undisputed. Dillon v. United States (C. C. A.) 279 Fed. 639. It should not be permitted to do indirectly what it cannot do directly, and by its instructions to in effect argue the jury into a verdict of guilty. We refer to some of the decisions on this question.

In Rudd v. United States, 173 Fed. 912, 97 C. C. A. 462, this court, in an opinion by Judge Hook, referring to judges commenting on the evidence, said: "His comments upon the facts should be judicial and dispassionate, and so carefully guarded that the jurors, who are the triers of them, may be left free to exercise their independent judgment."

In Sandals v. United States, 213 Fed. 569, 576, 130 C. C. A. 149, 156, the court reversed the case and said: "The jury is naturally sensitive to the court's expressions of opinion concerning the issues of fact in any case."

In Hickory v. United States, 160 U. S. 408, 16 Sup. Ct. 327, 40 L. Ed. 474, the court referred with approval to the doctrine of Starr v. United States, supra, and stated there were certain limitations on the power of a federal judge when instructing a jury and commenting on the facts, "limitations inherent in and implied from the very nature of the judicial office."

In Reynolds v. United States, 98 U. S. 145, 168 (25 L. Ed. 244), the court said: "Every appeal by the court to the passions or the prejudices of a jury should be promptly rebuked; * * * it is the imperative duty of a reviewing court to take care that wrong is not done in this way."

In Foster v. United States, 188 Fed. 305, 310, 110 C. C. A. 283, 288, the court said: "The greatest caution should be used in the exercise of this power."

In Mullen v. United States, 106 Fed. 892, 46 C. C. A. 22, the thought was emphasized that the court could only express its opinion on facts when based on evidence in the case. Other instances where the court reversed the case on account of the language of the trial judge being argumentative are Breese v. United States, 108 Fed. 804, 48 C. C. A. 36, and Cummins v. United States, 232 Fed. 844, 147 C. C. A. 38. See, also, Garst v. United States, 180 Fed. 339, 103 C. C. A. 469.

In Stokes v. United States (C. C. A.) 264 Fed. 18, 25, the question was raised that under the instructions of the court defendant did not have a fair trial. This court had before it the claimed unfair instructions, and in recognizing the right of trial judges in federal courts to comment upon the evidence, referred to the possibility of the trial court unconsciously so coloring its charge that the jury may be unfairly influenced in favor of one of the parties to the action, and said in holding the charge faulty: "Where the line must be drawn between comment upon the evidence of facts which is and that which is not permissible is determinable only by an examination of the language and a consideration of the circumstances of each particular case."

Examination of the language of the court in its instructions in this case leads inevitably to the conclusion that the exceptions and objections to certain parts thereof were well taken. In reading portions of the instructions, it would be difficult to tell whether one were reading the instructions of a court or the argument of a prosecutor. As a sample of their argumentative nature, we quote the following: "As I...