Willsman v. United States

• Decision Date: 03 February 1923
• Docket Number: 5711.
• Citation: 286 F. 852
• Parties: WILLSMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

286 F. 852

WILLSMAN et al. v. UNITED STATES.

No. 5711.

United States Court of Appeals, Eighth Circuit.

February 3, 1923

Horace L. Dyer, of St. Louis, Mo., for plaintiffs in error.

Vance J. Higgs, Sp. Asst. Atty. Gen., for the United States.

Before LEWIS and KENYON, Circuit Judges, and JOHNSON, District Judge.

JOHNSON District Judge.

Plaintiff in error Henry Willsman and one Bert Grant were convicted of a violation of the Harrison Anti-Narcotic Act (Comp. St Secs. 6287g-6287q). They thereupon sued out a writ of error to this court. The defendant Grant subsequently abandoned the prosecution of the writ and is serving his sentence in Leavenworth.

The indictment contained four counts. The trial court directed a verdict for the defendants upon the first and second counts and submitted the third and fourth counts, with instructions that the defendants could be convicted upon one only of the two counts submitted. The jury convicted the defendants upon the third count, and acquitted them upon the fourth.

The third count of the indictment is based upon the paragraph of section 1 of the Anti-Narcotic Act, as amended by section 1006 of the Revenue Act of 1918 (40 Stat. 1130 (Comp. St Ann. Supp. 1919, Sec. 6287g)), which makes it 'unlawful for any person to purchase' opium, coca leaves, or any compound, manufacture, salt, derivative or preparation thereof, 'except in the original stamped package or from the original stamped package. ' Omitting the allegations of time and place, and recitals to the effect that the defendants had not registered and paid the special tax required by the act, the third count of the indictment charged that the defendants--

'unlawfully and feloniously did purchase from a person whose name is to the grand jurors unknown, a certain derivative of opium, to wit, 30 grains, more or less, of morphine sulphate, otherwise than in or from the original stamped package containing the same; that is to say, they, the said Henry Willsman and the said Bert Grant, * * * unlawfully and feloniously did purchase, from a person whose name is to the grand jurors unknown, said derivative of opium, to wit, the morphine sulphate aforesaid in a small pasteboard box about three inches long, two inches wide, and one and one-half inches deep, which said pasteboard box, as the container of said morphine sulphate, did not have affixed to it the internal revenue stamps as required by law.'

After conviction, plaintiff in error filed a motion in arrest of judgment, which was denied, and exception taken. This ruling of the trial court is assigned as error. The question raised under this assignment has been recently settled against the contention of plaintiff in error by the Supreme Court in United States v. Wong Sing, 43 Sup.Ct. 7, 67 L.Ed . ., decided October 23, 1922.

There is evidence in the record tending to prove a sale of the drugs described in the indictment by the defendant Grant, and also tending to prove that plaintiff in error aided in making the sale. There is no evidence in the record of a purchase of the drugs by either of the defendants. To sustain the verdict of conviction, the prosecution invokes the further provision of said paragraph of section 1 of the Anti-narcotic Act, which makes possession prima facie evidence of unlawful purchase. The provision reads:

'And the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section by the person in whose possession same may be found.'

Plaintiff in error contends that there is no evidence in the record that the drugs were found in his possession, and that the statutory rule of evidence above quoted may not be invoked to sustain the verdict against him.

The evidence respecting the possession of the morphine mentioned in the indictment was the testimony of the witness Anderson called by the prosecution. He testified that he called at the home of plaintiff in error (in the city of St. Louis) and showed him a letter or note which purported to be from one R., then confined in a jail in the state of Illinois. In the letter or note plaintiff in error was requested to send morphine to R. by the bearer. Witness told defendant that he and R. were friends; that R. wanted morphine badly, and had asked witness to get it for him from Willsman. Willsman in reply said he would see. They were in the front hall of Willsman's residence at the time. Willsman went to the back part of the house; he came back in about five minutes with his coat and hat on, and said, 'I have not got any stuff here, but I will go where we can get some. ' They walked north, and turned two or three corners. Willsman kept turning and looking back. He said: 'I have got to be * * * careful, because they stuck me for this the other day-- for selling this stuff. ' They walked about five or six blocks north, then got on a street car, and rode eight or nine blocks, got off, and walked east to the river on Second street. At the corner in front of a saloon he said: 'You stand here a minute, and I will be back. ' He went into a house, was gone about five minutes, and when he came back the defendant Grant was with him. Willsman said to witness: 'Give him your dough, and he will get you the stuff. ' Witness in reply said he did not think that a proper way to do business; he did not know Grant-- had never seen him before; he would give him the money when he got the stuff. However witness gave Grant the money. Willsman with an oath then said: 'We would not cheat the Doc (R.); he is one of the best friends I have got. ' Turning to Grant he said: 'Give him back the dough.' Grant handed the money back, and Willsman said to witness: 'You walk on up the street, and we...