Wesson v. United States

• Decision Date: 03 March 1949
• Docket Number: No. 13771.,13771.
• Citation: 172 F.2d 931
• Parties: WESSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

172 F.2d 931 (1949)

WESSON v. UNITED STATES.

No. 13771.

United States Court of Appeals Eighth Circuit.

March 3, 1949.

Langdon R. Jones, of Kennett, Mo., and L. V. Rhine, of Paragould, Ark., for appellant.

G. D. Walker, Asst. U. S. Atty., of Little Rock, Ark. (James T. Gooch, U. S. Atty., of Little Rock, Ark., on the brief), for appellee.

Before GARDNER, Chief Judge, and RIDDICK and STONE, Circuit Judges.

GARDNER, Chief Judge.

Appellant, a physician practicing at Marmaduke, Arkansas, and the surrounding country, was charged with a violation of the Narcotic Law in an indictment containing four counts. Count 1 charged him with having made false and fictitious entries in his dispensing records and with having failed and omitted to show the dispensation of certain narcotics between the dates June 21, 1943 and May 10, 1945.

Count 2 of the indictment charged appellant with having sold, given away, bartered or exchanged, between the dates June 21, 1943 and May 10, 1945, 2,247 grains of morphine sulphate (cubes); 319 hypodermic tablets morphine sulphate, ¼ grain; and 76 fluid ounces tincture opium (containing 10% opium), all derivatives of opium, to divers persons unknown and in quantities unknown, not in pursuance of a written order of the said divers persons issued for that purpose by the Secretary of the Treasury of the United States, not in good faith and not in the course of his professional practice, violating Section 2554, Title 26, U.S.C.A.

Count 3 of the indictment charged that appellant, between the dates of June 21, 1943 and May 10, 1945, obtained by means of order forms issued for that purpose by the Secretary of the Treasury of the United States, drugs mentioned in Section 2550(a), Title 26 U.S.C.A., for purposes other than the use, sale or distribution thereof by him in the conduct of a lawful business in said drugs or in the legitimate practice of his profession, violating Section 2554(g), Title 26, U.S.C.A.

Count 4 charged that appellant, on or about June 30, 1946, sold four hypodermic tablets of morphine sulphate, ¼ grain, to Joseph M. Buchanan, not in pursuance of a written order of said Joseph M. Buchanan on a form issued for that purpose by the Secretary of the Treasury of the United States, not in good faith and not in the course of his professional practice, violating Section 2554, Title 26, U.S.C.A.

Appellant will be referred to as defendant. The case has been twice tried. On the first trial defendant was acquitted on the first and fourth counts of the indictment and convicted on the second and third counts. On appeal the judgment of conviction was reversed for errors in the admission of evidence. Wesson v. United States, 8 Cir., 164 F.2d 50. On the second trial defendant was acquitted on count 3 but convicted on count 2. At the second trial, at the close of all the evidence offered by the government and again at the close of all the evidence in the cause, defendant interposed a motion for judgment of acquittal on count 2 of the indictment. This motion being denied, he renewed the motion within five days after the jury was discharged and this motion was likewise denied.

Defendant seeks reversal on the grounds, (1) that the court erred in overruling his motion for acquittal; (2) the court erred in including in its charge government's requested instruction No. 1; (3) the court erred in permitting government's witness King to testify as to the special policy of Upjohn Company, without showing that defendant had knowledge of such policy, and erred in permitting government witness Schaefer to testify as to the general policy of the Narcotic Department; (4) the court erred in sending out to the jury certain government exhibits after the jury had been out several hours and in failing to give cautionary instructions as to the weight to be given such exhibits; (5) the court erred in reprimanding Dr. Lloyd in the presence of the jury.

In our view of the record the question of decisive importance is that which challenges the sufficiency of the evidence which was raised by the motion for acquittal interposed at the close of all the evidence.

To the defendant's contention that the evidence is insufficient to sustain the verdict, counsel for the government assert that this contention is precluded because, it is said, that this court on the former appeal held the evidence to be sufficient and that on the second trial the evidence on behalf of the government was substantially the same as on the former trial except for the matters which were held to be incompetent on the first appeal. This necessitates an examination of the record and briefs on the former appeal. It is, of course, only where the evidence on the second trial is substantially the same as that on the first trial that the rule of the law of the case is applicable. It is first observed that although on the first trial defendant was tried on four counts, on the second trial he was tried on only two counts. The printed transcript of the record in the first case contains only 147 pages, whereas the transcript of the printed record on the second trial contains 262 pages. The record on the first appeal contains no exhibits, while the record on the second appeal contains some 32 exhibits, some 13 of them being exhibits offered by the defendant and received in evidence. There were several witnesses who testified in the second trial who did not testify on the first trial.

On the first appeal defendant was represented by the same counsel who now represent him, and in their brief on the first appeal they admitted that, "There was a sharp conflict in testimony as to how much narcotic had been accounted for by Appellant by his prescription record, and the testimony offered by the defendant and the pharmacist, Wade Baxter, who checked the doctor's prescription record."

On the present appeal not only is there no such admission by counsel for defendant, but they charge that, "There is no dispute or conflicting evidence in any material facts in this case. The government relied entirely upon circumstantial evidence to obtain the conviction of the appellant."

The diligence of counsel for the government has failed to point out wherein there is any dispute or conflict in the evidence. In the opinion on the first appeal it is stated that during the period covered by the indictment appellant was shown to have bought narcotics equivalent to a total of 45,708 ¼-grain doses of morphine sulphate, which would have enabled him to dispense or administer narcotics at that time equivalent to more than 69 ¼-grain doses of morphine sulphate per day. The evidence in the record now before us is undisputed that ¼-grain doses of morphine sulphate were administered by defendant largely hypodermically and that does which were taken by mouth contained ½ grain. It also appears in the evidence now before us that at least 99% of the morphine sulphate administered by defendant was by mouth and it is said in defendant's brief in the present case that based upon the undisputed evidence, properly calculated the average number of doses per day dispensed by defendant but not necessarily used by the patient the same day, was 26 instead of 69. Counsel for the government do not dispute the correctness of this calculation but assert that there is no explanation why it was necessary to administer this number of doses. It also appears, which did not appear in the former case, that 75% of defendant's dispensation was morphine sulphate in cubes, which were used in the treatment of flu, severe colds, in his cough syrups and for other ailments. There was evidence in both trials that during the times charged in the indictment there were three flu epidemics in defendant's immediate locality.

We are clear that the record is substantially different on this appeal from that presented on the former appeal. It is therefore necessary to consider the evidence for the purpose of determining whether it was of such substantial character as to prove the guilt of the defendant beyond a reasonable doubt. The evidence is entirely circumstantial. We have searched the record with great care and think there is not a syllable of direct evidence of a single unlawful exchange, barter or gift of narcotics by defendant. There is no evidence of a single transaction with any addict, nor is there any evidence that any addicts frequented defendant's office, nor that any of his patients were narcotic addicts. Before considering the nature of the circumstances relied upon it is well to have in mind the rule of law relative to the probative force of such evidence. Even in a conspiracy case, which is ordinarily not susceptible of proof by direct evidence, facts and circumstances to sustain a verdict must be such as legitimately tend to sustain an inference. Inferences must be based upon proven facts or facts of which judicial notice must be taken and one inference cannot be based upon another inference. To sustain a finding of fact the circumstances proven must lead to the conclusion with reasonable certainty and must be of such probative force as to create the basis for a legal inference and not mere suspicion. Circumstantial evidence, even in a civil case, is not sufficient to establish a conclusion where the circumstances are merely consistent with such conclusion or where they give equal support to inconsistent conclusions. Adair v. Reorganization Investment Co., 8 Cir., 125 F.2d 901; Southern R. Co. v. Stewart, 8 Cir., 119 F.2d 85; Hoskins v. United States, 8 Cir., 120 F.2d 464; Massachusetts Protective Ass'n v. Mouber, 8 Cir., 110 F.2d 203. In Read v. United States, 8 Cir., 42 F.2d 636, 638, which was a criminal case, this court, in an opinion by the late Judge Kenyon, said: "The law applicable to the first proposition...