Ezzard v. United States

STATES v. UNITED EZZARD 80S 7F.(M) рossession is Maurer, W. A. Atty., James A. <§=563 6. Criminal law —Where charged, defendant’s offense Ingraham and Scothorn, J. Asst. U. S. W. stand, guilty ab- shown, in will verdict of Attys., City, all of Okl. Oklahoma establishing posses- innocent sence of Before STONE and LEWIS, Circuit sion. charged, offense Where Judges, SCOTT, Judge. District delicti, possession is guilty stand, in the a verdict LEWIS, Judge. Circuit After trial and pos- establishing an innocent absence of verdict of defendant, plaintiff in er- session. ror here, was imprisonment sentenced to pay a fine for violation of <§=327— In condition of law 7. Criminal section of the permissible! to instruct Act of December 17, (38 Stat. 785), duty innocence. to establish on defendant as amended the Act February 24,1919, in criminal is unknown A facie case § Stat. 1130 [Comp. St. Ann. proof is it procedure, permissible in no condition Supp. 6287g]). § has be- indictment instruct a duty his in- charged come that defendant did “unlawfully, acquittal. obtain nocence to knowingly, willfully and feloniously deal in certain derivatives opium and leaves, coco Presumption in crim- law 8. Criminal <3=324 — wit, weight about one given greater (105) hundred five ounces inal casе morphine sulphate than civil case. in (3) and three ounces co- giv- Presumption in ease cannot caine hydrochloride, having register- without greater weight civil ease. than en in ed with the Collector of Internal Revenue for District of paid Oklahoma and slight spe- lav/ attaches 9. Criminal «=324 —Law cial tax required of cred- by the consideration to face Congress Act of testimony leading contrary conclu- to a ible of December 17, 1914, as amended ‍‌​‌‌​‌​‌​‌​‌​‌‌‌​​‌‌​​‌‌‌‌‌​​‌‌​‌​‌​​‌‌​​‌‌​​‌​​‍sec- sion, on testi- he and issue should decided tions 1006 аnd 1007 of the Act of Revenue mony, presumption. and not the said W. T. Ezzard then and Though wholesale them, slight dealer in morphine and co- consideration attaches law face of credible conclusion; and, contrary contrary testimony leading to a caine person and a required register to so where there and pay special said tax as aforesaid.” testimony, issue decided on At the timo of his arrest police officers stands when latter on not defendant had in his suj>port 1'rom automobile a trunk circumstances. without which were the drugs named in the indict- deal of unlawful Poisons «=9 —Evidence ment. just gotten He the trunk from drugs held insufficient. the Santa Fé Railway station in Oklahoma drugs dealing prosecution vio- In City, under circumstances hereinafter stated. amended § of Act Dee. lation by (Comp. Ann. was no St. § Act Feb. evidence, direct or indirect, held, Supp. 1919, 6287g), in ease Ezzard then or ever had been a heavily weighed including favor of presumptions, so wholesale dealer in narcotic drugs, other innocence, more and was thаn the fact that the trunk in guilt, innocence than consistent with required morphine contained reversal conviction. and cocaine. He had registered paid the tax, but <§=552(3) con- sustain Criminal —'To dealer was under do so. Sec- viction on circumstantial tion 1 of the act which the indictment is every hypothesis must exclude reasonable based defines a wholesale dealer and the innocence. circum- to sustain conviction order charged crime thus: evidence, proof only be con- must stantial sistent with defendant’s clude “Every person who sells offers for sale must ex- but any of said original stamped hypothesis every his inno- reasonable packages, as provided, hereinafter shall be cence. * * * deemed a wholesale dealer. dissenting. Stone, Judge, shall he person unlawful for any register provisions under the act of this In Error to the District Court of the Unit- import, manufacture, produce, compound, ed States Western Okla- District sell, deal in, dispense, distribute, administer, homa; Cotteral, Judg’e. John H. give away of the аforesaid W. T. Ezzard dealing was convicted of having registered paid spe- narcotics, brings and he error. Reversed and tax imposed by cial this section.” remanded. Section 8 (Comp. of the act 6287n) St. § B. F. provides Williams J. E. both of Luttrell, or control Norman, Okl., Horton, drug and S. A. Okla- shall be vi- homa City, Okl., plaintiff in error. provisions olation section 1 of REPORTER, 2d SERIES 7 FEDERAL city he for the trunk. When he act. This declaration of a rule of reached agent’s office, to the real would have been estate evidence, which doubtless went.first a applied to bank which had in the real legislative some interest by the court Fé transaction, and Santa Weide, enactment. 11 estaté In Insurance Co. v. Ed, cheek, ob- Wall. station. There 197), L. he surrendered the said: put “A tained the trunk and it in his automo- presumption is an inference as to the' ,had by actually bile. issued the New known, existence of a fact not aris- The check City. Railway at New York its usual with another York Central from connection City, Ezzard had never been in New York which is known.” years. nor out of Oklahoma for several thаt Ezzard was was [1-3] unlocked, it dealer; trunk and was dis- and, had in order wholesale become for it that covered before came guilty, verdiet of was and is Ezzard and drugs. contained watched to infer that defendant was wholesale away Ezzard it he was pos started proven dealer from the fact that he had when by policemen in another automo- drugs. followed pre session of That inference bile. five miles posses gotten After he sumption rebuttable, had way they stopped city on innocent and out home or control have"been sion his automo- criminal, him, him, arrested took him and purpose charged. The for jail. city bile and him in placed back in Beander here, as the construed statute one They they him about 224, 41 Ct. asked arrested Barnett, 255 U. S. taking it trunk, and and he told them he was to include "is not intended bridge, and that not con to woman at thé insisted which is make criminal they go purpose of willing.” Presumptive evidence with him there for the scious and They verifying declined evi his statement. circumstantial is said to be indirect or Ed.) custоdy day so. He was from (Morgan’s do released dence. Best on Evidence later, to find (7th or so then unable Evidence, 27, 293. on vol. §§ Starkie bridge or, woman. He made several visits Ed.) p. “Circumstantial, Amer. 558: side camp purpose, evi for that and was told termed, frequently as it is keeper ferry- commissary and posi is not direct and dence, is there, man woman had been but she that tive.” away. gone that had He testified he Against prose- thus made the case anything do narcotics and never had to with or infer- resting presumption cution, on the have known what the would not dealer, he ence that Ezzard was wholesale them; did not know if he had seen he went proof that he offered uncontradicted knowledge they trunk; had no were in the trunk as and had an accommodation witness, Another who contents, its contents. knowledge or information as river at the same earlier in crossed the presumption thus and he claimed that morning than Ezzard crossed testified and substance was rebutted overthrown. him if he would that a woman there asked and unimpеached he witnesses, and his n City Oklahoma bring trunk out from He uneontradicted, to these facts: testified hurry her; he in a declined residing twenty or more was a farmer miles deputy that two wo- sheriff testified do so. A City. at breakfast While Oklahoma vicinity father lived in the agent men whose a- real estate morning about 6:30 one neigh- crossing were in out river Ezzard a in hand for city, in the who had time; ar- time that he had borhood from estate, telephoned him to transaction real oeassions, for be- on once rested them several City аt in connection come to Oklahoma once automobile, ing implicated theft of that call he Without with that transaction. being drunk, disrepu- for other once for city. way On his gone to the would not have conduct; .that knew were users table he bridge A Canadian river. he crossed the that both of them were of narcotics and there point at that constructed “dope-heads.” Their known as father’s buildings temporary were tents anil women had is Lawrence. One Ezzard name- employed there. of the men usе .selling narcotics. been convicted crossing river on account stopped City agent in corrobor- real Oklahoma got automobile, with his estate some trouble of Ezzard he came ated the came to him from to fix it. A woman out morning response a tel- city him if he asked direction of the tents awith ephone him in connection call from at the him trunk bring back tes- transaction, and the banker real estate said Railway station, which she Santa Fé same came to the bank the. he camp. tified boys He belonged one of the neighbors transaction. of Ezzard’s Several him cheek gave and she so, consented fered velopment repeats been as sumption attitude various may ly, save in rare hut seem nounced. upon every until a verdict U. sumption of tain defendant writer expressed in v. U. S. struct guilty tablishing an innocent er condition fendant’s fense 40 Davis burden and presumed, the issue. civil cases prohandi, supply States, U. S. dence, and are not He lived a Mrs. Smith. Ezzard denied river and that she tion who fied testified to Ms ing citizen. The “The unknown in S., supra, thus: [4-7] L. Ed. testified that ho shifts. complication corpus agent 21 make that ho asked him where was Ezzard against changing phases of the state crossing, charged, the faet 97 Am. tbe conclusively negatived; There, law clothes never aspects. At one acquittal. evidence, they are the Ms Presumptions or (C. delivered that the trunk was but not so in at the next Ho his case at various stand plea they may delicti Lilienthal’s are raised on Rep. innocence innocence. The quantum said Cunningham State, рlea of proof is it that it did not establish his changes. g'oodreputation is presumption guilt pleads of conviction twelve every 237, A.) of not Where he rests in the absence of actual agent the trunk to that he was burden did not know 2 plea Newcastle, has been say sometimes exceptional new circumstance ho indeed miles F.(2d) approved in Davis nothing affirmative- to constitute criminal on the accused with shown, contrary to may appear 160 principle is at the Santa To become Tоbacco upon procedure. the trunk permissible to of not v. inferences of proof; when moment it innocence circumstances deliciti, guilty every fresh de- from the is for Mrs. U. S. necessitate the has been he never loses 24 EZZARD Ms rebutted. as a law-abid- result hauling it for hut stag’es wear conclusively Ezzard testi- establishing fix to establish L. guilty, the verdict legal instances, v. facie case guilt her name Feinberg 469, was hers. 56 Miss. Ms own the faet But duty of ho clearly United Pé sta- bridge. body to ob Smith; proof In no every going, main puts pre- pro- 7F.(3d) pre- onus nev sub 487, v. UNITED STATES fact of- told evi de in of es the able doubt. Shall it In v. probable, that evidence would not shows that presumption under these circumstances would had instructed the there ther’s mental 911, there was conviction for murder. The defense was rounding sumption and the uncontradicted evidence of the fa- causa mortis, and the circumstances sur- maker, maker was that it was found in the which and after it father of the 188,W. proof.” those them; viction, her.” obligation thereafter dependently ment that tablishment of thing criminal gard existence The innocence ty lar stage this has been onstration has demonstrated his production “In In “But In a conflict it, presumption court 331 paid. until, State v. presumptions imposed Erhart v. this case there is no to whom may raised the force than to of the presumptions the state must establish the faet civil it he as to a faet the defense said: cases, of the as made shifted, compatible beyond some evidence. Tho uncontradicted dangerous offered, suggests doubt is still more The court said: cоmmission venture insanity, weakness testimony, payment,. Jones, ease, acquisition thing ‍‌​‌‌​‌​‌​‌​‌​‌‌‌​​‌‌​​‌‌‌‌‌​​‌‌​‌​‌​​‌‌​​‌‌​​‌​​‍accomplished guilt something clear, Dietrich, the law deduces from the es- insanity of sanity. presumed this rests payee’s particular ail'dthence presumption out; Fresh him of engendered 982), 64 Iowa, 349, 17 N. W. so made out presumed, so to presumption; distinct and reasonable rule.” must dispense can stand implications which, guilt beyond with the conduct amply be said that if an action on a note either theretofore be To but it can never do dеath, 118 of the possession, support v. it continuously upon fact. assert, pretense the act. re-establishing necessary give sought On that at somé indulge is said: facts, Gilson, Ms Mo. forward the du- rebut the the burden of unexplained, hands tho evidence doubt with further who was tho that, unless in reference doubt? place, But part trial court if convincing was overcome of which was have no the dem- subject * 16 particu- such a to con- it had because to meet reason- of the whilst apply in re- 24 some- pre- due, ** gift Pet. mo- No- in- 2d FEDERAL REPORTER. SERIES tаin a seldom saw them. sistent answered in parties belief dence of ther said nocence as nating whatever was and this court has Both cotics. The next tive Skelly, who was the defendant was, the defendant attorney improperly aroused the of the verdiet answer was ing all of taches to weighed heavily We conclusion. strength jury the should of Credible criminal cases in quantum of evidence have no existence.” position thal’s Tobacco tributed was civil action. The than sought against ^[11] “Text-writers of the Largеn “Presumptions cannot be said: [9,10] “The ^[8] the parties, think it obvious that jury, whether the defendant was there is questions, in conviction; that the jury against the defendant. with Surely, greater questions, to be established of referred Wé cannot given those evidence taking finding presumption presumption support them to facts which that he had not to his but it is obvious that decided on testimony leading said: measurable innocence than weight State, When that give, reason that them questions. knew be a slight on cross-examination Case, distinction including thеir verdiet.” cousin, negative. is our to for several also a gtiilt to all of which from other both of their and that where question was, whether he respect to the 76 Tex. frequently in civil rid favor to be of consideration relied the is not is insufficient to highest belief that as consistent with in consistent ourselves peddler presumptions is Buek thereafter no effort amount of by presumption can conceded the we can find show that testimony The first seen of in a criminal the between civil case is more con his The the latter stands peddler ease. In indulged the Stevens, authority held that evi circumstances. ease, to is with 237, supra, cousin, to aspects, either of the months, witness the affirma commenting A.) of the the the district defendant; justify suspicions S. W. degree or narcotics.. evidence.” He asked consider the negative of such contrary to state the reasons question incrimi and not the weighed law at taking Lilien one of Lloyd cerning whom guilt, inno- issue state error. sub firm nar fur sus face case the op- the at drugs. the circumstances this it could his own evidence. He alone testified character oration was important, wit, end, truth of the cers to offer, knew tion corroborated planation, have instructed dence” amount of narcotics. The him. No sufficient and holds that showed sion of explain majority opinion ment narcotics without presented the evidence because parture great cause was an close tain sale We viction. every pellate seen, cence Ezzard was convicted of Reversed and STONE, guiity tеstimony requested to instruct therefore think his circumstantial with it. Other dealer of the at the time anything reasonable I think the as with importance purpose his exception, I defense rested law, drugs have would be charge witness was F. 865. statutory provision that must not Sullivan v. United States to this court think those character if trunk good camp story the defendant admitted guilt to him I feel long-established principles true, as to character about the trunk a verdiet of sustain the conviction. that defendant reverse remanded. hypоthesis what character registration on two material told of arrest, verdict. The majority and find drugs, The defendant but must containing a Furthermore, surrounding his deems Judge (dissenting). compelled would have it is the of defendant’s witnesses testified con- introduced tax. The get principles as innocent. the trip to which yet the court erred its defendant. impel “presumptive evi- consistent government relied the administration of judgment into town and his the trial court should the utmost opinion is to take the support is of as such or and in trunk. While defendant and circumstantial, the .trunk to his innocence. eyidenee sufficiency sole refusal also exclude woman who guilty at the me to by him who and to the government based are assigned dissent and as we very large exonerated possession points, sought dealer in drugs or That ex- a verdiet a whole- question with the of corrob- connec- posses- of con- In the to sus- (C. C. refus- value toas a de- very pay- offi- The Be- so. to of suit, therefrom, and should mitted where murrer ment it creates determination of the by excluding intеrvention sumptive or where the evidence ute. or or jury. mitted to the dence, slight, though to take the cient of the case the drawn facts however, Jury. satisfied sions sary ion an absence of reasonable sive ed and sion to the sented to it. The relative value to he accorded bility as is First, termine issues Here a “Legal Sufficiency nonsuit, or undisputed make evidence. submission existence or the concerning the court should must have determination one —-Whether ‍‌​‌‌​‌​‌​‌​‌​‌‌‌​​‌‌​​‌‌‌‌‌​​‌‌​‌​‌​​‌‌​​‌‌​​‌​​‍Had from evidence deemed true. such a character as to such there is no evidence J. or is on which the In such case therefrom, peculiar province the court by supported by numerous citations issue, beyond reasonable doubt. convict, presented inference determining only prima and not that the there is truth proper issue from the directing finding not be submitted the evidence which will warrant by Each of these evidence, and the evidence evidence; and of such support jury of fact from question either. The rule gone should a оf the facie is a or is doubtful whether suspicion there is jury determination of issues of does facts the issues reasonably will be as jury nonexistence dispose direction of a any court question involves two matters: submit no more as case of to such violation evidence; second, the tion. that different verdict.” by dismissal or non- becomes not believe the determination, oven reasonably may first Evidence by follows: legally evidence, however on an issue difference error for the as that statutory require so much jury by dismissal al convincing to the bility a character that should ho of it without the of is for the court should sustaining legal jury upon a matter of law second, is called justifiably material issues it EZZABD v. UNITED STATES conjecture, fact, or unless there can jury it is such evidence evidence one for the of material insufficient jury. conflicting, whether verdict, or sufficiency to Go well stat- not suffi- the stat proof as is to de- justify submis- conclu- Where, by drawn weight where neces- ant has exclu- jury; “pre credi- bacco court 7F.(2<1) opin- sub- find But pre- evi- ad de- his ho very ny facing I have some considerations erations court ity pearance able in an convince ity accepted it to the er things. here holds that court. At the trial, trunk, portant ant was to be position fendant ognized ity did not sonable but this ease should cent, either as to credibility 24 L. sufficient evidence meet and Which, judge of the statute, required showing. placed ^[808] puny S. Ct. court be reflected from fails of a credibility. any majority, the interest of effective moans of acquitted.” as statutory presumрtion Mugler litigation this court is that the trial court left are as of a witness v. United or the an have practical witness. Such force to doubt that All helps thing by “presumptive this and abundantly protected de offered an in the trial telling of the trial 273, to reach is so conclusive both as to credibil that jury and demeanor on the stand overcome—to evidence has been introduced to re “presumptive indictment for a felony. While the court which is greatest go appellate charging knowledge The very jury eyе was the case, I testimony be true. The trial case to determine whether defend jury appreciable to be these are cannot the truth while the C. A. 202 Obviously, the above consid the trial as well Kansas, Spurr these jury, effect thereof passing but some applicable The difference between the "presumptive C. respect the witness in the result explanation entirely court there into an jury. court. One of those is that “if the defendant lightly affect the witnesses court. But there are depends escape helps affecting credibility rehut —that of long-established 205; testing conclusive evidence?” as as true. The credi clearly there can he no rea a reasonable doubt 97 U. S. 123 so to determine when court should have the then he is entitled the ear. The toas positive language Here, or even are never avail declare; sufficient to re to a defendant byis Lilienthal's brushed aside. contents of the the conclusion them can nev here credibility. the views the credibil before upon many of innocent weight, the defend no means evidence,” appellate appellate standard, presump majority is to de destroy a^o major hut if inno A.). rec 813 im ap tri To tlie REPORTER, 2d SERIES FEDERAL escape I cannot the conclusion basic Besting upon its majority view the an invasion compelling, though .not warrants, jury province of trial and of the ease. facie conviction. It makes out witnesses) peculiar- (credibility ain field is to practical purpose of the statute best they are ly belonging to them and where аll of compel knows accused—who alone qualified conclusions, to reach correct pro concerning the facts —to statutory requirement that it emasculates explanatory duce such nothingness, here involved to as to his reasonable doubt law, conclu is, that result as matter per any accused accomplished sively plausible story presents a direct son posses the character of corroboration EL LIENTZ. DORADO REFINING CO. v. circum to some attendant sion “presump stancеs, practical value Eighth Appeals, Court Circuit. August 12, negli if not doubtful, becomes tive evidence” 1925. know, gible. Usually, prosecution No. 6766. of evidence advance- of the introduction n posses by explanation defendant, what Pleading <@=>406(5) <@=>353(4) —Sales —Com- nor witnesses, nor what will be made sion price plaint held to state of action for cause The chance sold, by whom. sufficiency corroborated nor how of furnace could joined. raised after issue ordinarily min to combat such in-, by plaintiff Where, under a contract al important to Therefore, the more imum. plant, tests stall new furnaces exercise judge low trial provided to deter- were be made therein the credibil passing their function ‍‌​‌‌​‌​‌​‌​‌​‌‌‌​​‌‌​​‌‌‌‌‌​​‌‌​‌​‌​​‌‌​​‌‌​​‌​​‍furnaces, saving mine the of fuel view the above price, testimony. I think ity of the com- determine the which was also to plaint made, alleging the'tests States Hem v. United supported Yee giving results, sufficient to exhibit 69 L. (April 1925) Ct. price, action state a cause' of sufficiency States, 282 F. ——; Bram questioned de- could alleged.' court); joined (this Pierriero v. United issue on the fendant (4th Baender v. United C. C. A.); Corporations <@=>406(1) of- —Administrative A. 558 260 F. authority condi- to waive ficers held to have States, A.); and United Gee Woe v. tion of contract. A.). (5th C. C. F. 162 C. C. A. 498 installation a contract for the Under plant plaintiff ant of defend- of new furnaces Charley Toy Also, see corporation, tests, 12-hour which' Unit Dean v. (2d A.), C. C. de- furnaces to old to be made of the A.). ed 266 F. 694 presi- new, saving fuel termine dent of majority opin- ground reprei A second overseer, defendant, who and its making tests, have au- sented held thе substantial evi- that where all of ion is officers, agree thority, its administrative guilt innocence dence as ebnsistent with 8-hour, instead to substitute 12-hourf to re- appellate court tests. With judgment conviction. verse a <@=>889(3) Appeal to al- and error —Failure quar- announced, have thus of law rule I. lege held contract of condition of waiver application for its I can see no rel but complaint fatal, dur- was amendable where ing trial. and rest must rest matter entire here. This plaintiff, suing contract, That did accused. If credibility of the upon the alone fully ‍‌​‌‌​‌​‌​‌​‌​‌‌‌​​‌‌​​‌‌‌‌‌​​‌‌​‌​‌​​‌‌​​‌‌​​‌​​‍allege condition, which he waiver of apply- is no need story is true proved trial, prejudicial, and' held is no false If rule. above judgment require not’ to reversal of permitted’ favor, amendment of could have- since the no evidence because there is place for rule complaint during trial. credibility of consistent with innocence. nothing to do with <@=>413 correspondence Evidence —Previous change incompetent to formal written- held rule; rule is plicability of opera- contract. entire evidence—whether wherever tive by plaintiff written Letters consistent with or not —is inno- be true incompetent to, negotiations during take to add held statutory presumption has cence, change modify, writ-< from, formal subsequently executed. at all because ten contract real force can have no al- possession must of innocent to the District Court of the- Error itself —in consistent with ways be Kansas;. District of United States premise based it admits and is Judge. Pollock, John C.

Case Details

Case Name: Ezzard v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 4, 1925

Citation: 7 F.2d 808

Docket Number: 6679

Court Abbreviation: 8th Cir.