James v. United States

279 F. 111 | 5th Cir. | 1922

WALKER, Circuit Judge.

The plaintiff in error was convicted on each of the four counts of the indictment, each of which charged a violation of section 1 of the Harrison Anti-Narcotic Act (U. S. Comp. St. § 6287g), in that he, without registering and paying the prescribed tax, sold to a named person “about one ounce of morphine, the exact amount being to the grand jurors unknown, the said morphine being a salt and derivative of opium.”

[1] The sale alleged in the second count was to L. H. Rice. Rice was examined as a witness for the prosecution. The court overruled an objection of the defendant to the part of the testimony of this witness to the effect that the witness, under the direction of the defendant, delivered morphine received from the defendant to an unnamed and unidentified negro, who gave the witness money therefor, which money witness delivered to the defendant. That ruling was not erroneous. That part of the testimony of the witness was admissible, especially when it is considered in connection with another part of his testimony. He testified that at the time of the alleged transactions with the negro the defendant was giving the witness morphine and not charging him for it. It was open to the jury to disbelieve the part of the testimony of the witness which referred to the unnamed negro, and to find that the transaction testified to was a sale to the witness, or to find that in furnishing other morphine to the witness the defendant sold it; the price being the rendition of service by the defendant in effecting the sale to the negro.

[2] There was an absence of evidence in reference to the defendant registering and paying the tax. The defendant excepted to a part of the court’s charge to the jury to the effect that, in the absence of any proof on the subject, the allegations of the indictment in that regard are presumed to be true. That ruling was not erroneous. If the defendant was a dealer, the burden was upon him to show registry and payment of the special tax. His possession of opium, or a compound, manufacture, salt, derivative, or preparation thereof, was presumptive evidence of a violation of section 1 of the act. U. S. Comp. St. §' 6287n; Gee Woe v. United States, 250 Fed. 428, 162 C. C. A. 498.

[3] It is contended that the overruling of the defendant’s request for an instructed verdict of not guilty was erroneous, because of the absence of any evidence tending to prove that morphine is opium, or a compound, manufacture, salt, derivative, or preparation thereof. The word “morphine” is in common use, and means a kind of drug covered by the statute. It was not necessary to adduce evidence to prove the meaning of the word, the meaning of which may be assumed to have been known to the jury. Hughes v. United States, 253 Fed. 543, 165 C. C. A. 213.

There is no error in the record. The judgment is affirmed. •