Weaver v. United States, No. 11532.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: GARDNER, WOODROUGH, and THOMAS, Circuit
• Citation: 111 F.2d 603
• Parties: WEAVER v. UNITED STATES.
• Docket Number: No. 11532.
• Decision Date: 01 May 1940

111 F.2d 603 (1940)

WEAVER
v.
UNITED STATES.

No. 11532.

Circuit Court of Appeals, Eighth Circuit.

May 1, 1940.

111 F.2d 604

COPYRIGHT MATERIAL OMITTED

111 F.2d 605

Harold A. Prince, of Grand Island, Neb., and Robert Van Pelt, of Lincoln, Neb. (E. B. Perry, L. J. Marti, J. P. O'Gara, and Arthur E. Perry, all of Lincoln, Neb., on the brief), for appellant

Fred G. Hawxby, Asst. U. S. Atty., of Lincoln, Neb. (Joseph T. Votava, U. S. Atty., and Ambrose C. Epperson and Emmet L. Murphy, Asst. U. S. Attys., all of Omaha, Neb., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

The appellant was convicted and sentenced on two counts of an indictment containing five counts in which he and Erma Shaneyfelt were charged jointly with violation of the Federal Narcotic Act, 26 U.S. C.A.Int.Rev.Code § 2550, 18 U.S.C.A. § 88. The first count charged a conspiracy to violate the Act and alleged as overt acts illegal sales on December 9, 1937, October 6, 1938, October 14, 1938, and October 17, 1938. Each of the alleged overt acts was charged as a substantive offense in counts 2, 3, 4, and 5 respectively. At the conclusion of the government's case the court directed a verdict for Erma Shaneyfelt on all counts of the indictment and for the appellant on count one, the conspiracy count. The case against the appellant was submitted to the jury on counts 2, 3, 4, and 5; and the jury returned a verdict of guilty on counts 2 and 4 and of not guilty on counts 3 and 5. Counts 2 and 4 charged illegal sales on December 9, 1937, and October 14, 1938.

The appellant seeks reversal on the grounds that the court erred (1) in not declaring a mistrial, after the dismissal of Erma Shaneyfelt from the case, because of evidence of conversations with her in the absence of appellant; (2) in receiving in evidence testimony of prior transactions of the defendant; (3) in receiving in evidence exhibits which were neither properly nor sufficiently identified; and (4) in failing to instruct the jury, as requested, in reference to the credibility of a certain government witness.

1. At the conclusion of the government's case and after the dismissal of the conspiracy charge against both defendants and of all counts against Shaneyfelt, appellant moved for a mistrial on the ground in substance that conversations between government witnesses and Shaneyfelt were admitted under the conspiracy charge which were not admissible against appellant on counts 2 and 4 charging substantive offenses.

The evidence in support of count 2 is that Ray Carrick and Patrick Mullen, government witnesses, went to Dr. Weaver's office on December 9, 1937, and gave appellant $6 for morphine. After receiving the money appellant left the office, asking the witnesses to wait as he had to send out for the morphine; that after 10 or 15 minutes Miss Shaneyfelt opened the door and handed Carrick a bottle containing the morphine; that when he started walking out the door she said: "Don't go out with that in your hand, put it away so nobody will see it." He put it in his pocket. This conversation was not objected to. There was no motion to strike it. It can not be said to have been prejudicial.

With respect to the transaction on October 14, 1938, the date of the sale charged in count 4, Mullen testified that he went to the appellant's office leaving Crouch, the government agent, about a block away. Over appellant's objection he said that Miss Shaneyfelt told him (in the absence of appellant) that the dope had come that the doctor was telling him about a few days before; that he counted out $6; that she went into another room where appellant was; that he recognized appellant's voice; that after hearing a conversation between appellant and Shaneyfelt something (afterwards found to be morphine) was put in a pill box and given to him by Shaneyfelt and he gave her the six dollars.

The entire conversation in this transaction, it will be observed, was in the absence of the appellant, and was hearsay. It was shown, however, that Shaneyfelt was the

111 F.2d 606

servant of the appellant. The court instructed the jury that appellant would be liable for the acts of his agent acting within the scope of her authority delegated to her by appellant, but if she made the sale without his knowledge or consent he would not be liable under count 4. The question was submitted to the jury without objection and without exception to the instruction. The instruction as a whole is a correct statement of the law. Pennacchio v. United States, 2 Cir., 263 F. 66

But, if there was error in admitting the testimony, the conviction can not be reversed on this account. Only one sentence was imposed, imprisonment for three months and a fine of $300. Since the sentence does not exceed the maximum authorized for conviction on count 2 the error is without prejudice. Taran v. United States, 8 Cir., 88 F.2d 54, 59; Little v. United States, 8 Cir., 93 F.2d 401, 409; United States v. Trenton Potteries, 273 U. S. 392, 401, 47 S.Ct. 377, 71 L.Ed. 700; 50 A.L.R. 989; Abrams v. United States, 250 U.S. 616, 619, 40 S.Ct. 17, 63 L.Ed. 1173; Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692.

2. Over appellant's objection the government witness Patrick Mullen was permitted to testify that he had purchased morphine from the appellant in the fall of 1935, and that he saw the appellant four or five times each month after that. It is appellant's contention that this evidence was not admissible to show intent for the reason that to sustain an indictment under the statute the government is not obligated to show intent, relying on Coulston v. United States, 10 Cir., 51 F.2d 178, and that no foundation was laid to support the testimony that the thing purchased by him was morphine. There is no merit in either of these contentions. It was competent for Mullen to testify that the substance purchased by him was morphine. Pennacchio v. United States, 2 Cir., 263 F. 66. And the statute under which the appellant was indicted does not apply to the dispensing or administration of narcotics in the course of a doctor's professional practice nor to good faith moderate dispensation to an addict for self administration. Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819, 39 A.L.R. 229. The appellant is a licensed physician who had registered as required under the Federal Narcotic Act. The evidence was properly admitted on the question of good faith. Thompson v. United States, 8 Cir., 258 F. 196; Moffatt v. United States, 8 Cir., 232 F. 522; Freeman v. United States, 5 Cir., 86 F.2d 243; Hood v. United States, 8 Cir., 14 F.2d 925. Coulston v. United States, 10 Cir., 51 F.2d 178, presents a different situation.

3. Government exhibits 3, 6, 8, and 10 were the packages of morphine alleged to have been sold to...