Bethea v. United States, 1 F.2d 290

Bethea v. United States

1 F.2d 290

7th Cir.

1924

Check Treatment

EVAN A. EVANS, Circuit Judge.

Defendant was convicted and sentenced for violating sections 1 and 2 of the Harrison Narcqtic Act (Comp. St. §§ 6287g, 6287h), in that he, being “a person who was dealing in, bartering, and selling a certain derivative of opium, had not registered his name and place of businеss with the collector of internal revenue, etc., and had not paid to said collector the special tax therefor as required by law,” and “did unlawfully barter and sell a large quantity of a certain derivative of opium, to wit, morphine hydrochloride, contrary to the form of the statute,” etc.

A reversal is sought because (a) the indictment is insufficient; (b) the evidence is insufficient to support a conviction; (e)‘ of errors in instruction; (d) the government was estopped from prosecuting this action.

The аttack upon the sufficiency of the indictment is predicated upon the pleader’s failure to negative the excеption appearing in sections I and 8 of this act (Comp. St. §§ 6287g, 6287n). Under repeated decisions it was not necessary for the pleader ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to negative the exceptions. United States v. Loewenthal (D. C.) 257 Fed. 444; Manning v. United States (C. C. A.) 275 Fed. 29; Di Preta v. United States (C. C. A.) 270 Fed. 73; United States v. Behrman, 258 U. S. 280, 42 Sup. Ct. 303, 66 L. Ed. 619; Rothman v. United States (C. C. A.) 270 Fed. 31; Cabiale v. United States (C. C. A.) 276 Fed. 769; Bacigalupi v. United States (C. C. A.) 274 Fed. 367; last sentence, section 8, Harrison Narcotic Act.

The evidence does not support the contention that defendant was entrapped, or was led into the commission of the crime, by the government’s officer. At most the *291evidence tends to show that the government inspector, having some reason to believe that morphine and other narcotics were being’ sold to addicts in the city of Peoria, and further believing that the drugs were obtained in a certain drug store, sent to this place of business an individuаl who asked the clerk for a “shot” to be administered presently; later he came back with some marked bills, and obtained а large quantity from plaintiff in error, an employee in the drug store, hut not a prescription clerk. There was no such showing as wаs made in the case of Voves v. United States, 249 Fed. 191, 161 C. C. A. 227, or as in Butts v. United States (C. C. A.) 273 Fed. 35, 18 A. L. R. 143; but the facts fall more clearly within the rule announced in Fisk v. United States (C. C. A.) 279 Fed. 12, Lucadamo v. United States (C. C. A.) 280 Fed. 653, and Smith v. United States (C. C. A.) 284 Fed. 673.

The assignment оf error dealing with the insufficiency of the evidence to support the verdict rests upon two grounds. It is first urged that the government failed to show that morphine hydrochloride is a derivative of opium. This contention, highly technical, is not borne out by the record. In addition to the testimony of the addict showing that he ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ordered a “shot,” which was administered to Mm, and that he negotiated for “10 ouncеs in one bunch,” and later called at the drug store, where plaintiff in error weighed out 52 grains, put it in a box, and delivered it to him, there was the testimony of a chemist who analyzed the drug thus received and pronounced it to be “'morphine hydrochloride.”

There was no suggestion then made that this term was not understood by court, counsel, or jury to include a salt or derivative of opium. In fact, quеstions propounded to defendant’s and government’s witnesses seemed clearly to assume that morphine hydrochloride was a derivative of opium. Moreover, one witness, without objection, stated: “I made a test to determine whether it was morphine or not. Q. What was it? A. It was a salt of morphine. * * I am a graduate in pharmacy and a pharmaceutical chemist. ■' ” Was 10 yеars a retail druggist.” Numerous courts have held that it is not necessary for (he government to show that morphine hydrochloride is a dеrivative of opium. Hughes v. United States, 253 Fed. 543, 165 C. C. A. 213; Ryan v. United States (C. C. A.) 283 Fed. 976; Greenberg v. United States (C. C. A.) 285 Fed. 868.

More serious is the contention that plaintiff in error was not required to register or to pаy a license fee and therefore could not be convicted of the offense charged in the indictment. In United States v. Jin Fuey Moy, 241 U. S. 394, 36 Sup. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854, the court held that only “persons” who cаme within the class defined by section 1 of the act were required to register. Paragraph 1 defines tMs class to be “every pеrson who imports, manufactures, produces, compounds, sells, deals in, dispenses, or gives away opium or cocoa leaves, or any compound, manufacture, salt derivative, or preparation thereof.”

Does plaintiff in error сome within the language of a person who “sells,” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“deals in,” ,or “gives away”? In United States v. Wong Sing, 260 U. S. 18, 43 Sup. Ct. 7, 67 L. Ed. 105, the court, referring to section 1 and the two classes therein referred to, said: “We are unable to concur with the District Court. The provisions quoted by the court have a certain relation, but they have also a certain independence.” One makes it “unlawful for any person to purchаse” the drugs; the other “enumerates other persons who have a larger connection with the drugs, and requires them to register the fact and pay the tax prescribed.”

Without referring to other decisions, it may be stated to be their holdings that Congress, by the 1919 amеndment (Comp. St. Ann. Supp. 1923, § 6287g), evidenced an intention to distinguish between purchasers and sellers. Generally speaking, it is a seller that is rеferred to in the first paragraph of section 1. True, other persons may be required to register, even though they be not sellers; but (heir business necessarily contemplates selling. For instance, an importer would not import, a manufacturer would not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍manufаcture, a producer would not produce, nor a compounder compound, excepting for the purpose of a subsequent sale.

This being the basis for the classifications, we see no reason for giving the verbs that define the activity of the person who must register, to wit, “sell, deal in, or give away” any narrow construction. They a,re in themselves general and comрrehensive, and we conclude that they include plaintiff in error.

Other assignments of error need not be discussed elaboratеly. They have been duly considered. We have given heed to the urge that conviction is based upon the unsupported testimоny of an addict. TMs is not entirely correct. While the addict alone testified to the conversation with plaintiff *292in error, other witnesses corroborated him as to possession of marked money when he went into the drug store, and to the morphine hydrochloride in his possession when he reappeared. The issue of guilt was clearly one for the jury.

Likewise, the suggestion that plaintiff in еrror was an employee of a licensed and registered druggist, and therefore not required to register, is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍rejected, because the evidence shows he was not acting within the scope of his employment, but entirely independent thereof, in making this sale.

The judgment is affirmed.