243 F. 300 | 7th Cir. | 1917
(after stating the facts as above).
Section 1 requires a person proposing to handle the drugs to register “with the collector of internal revenue of the district his name or style, place of business, and place or places where such business is to be carried on,” and it defines the place of business to be “the office, or if none, then the residence” of the person. Distinction is thus made in the act between the “place of business” and the “place where such business is to be carried on.” The act defines the first in prescribing that it shall be considered the office, if any, and, if none, then the residence, of the applicant for registry. But evidently the place where the business is to be carried on may be anywhere in the United States,
“If the language of the section defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the*305 pleader may safely omit any such reference, as the matter contained in the exception is matter óf defense and must he shown by the accused.”
The same rule was recently applied by this court in Grand Trunk Ry. Co. v. United States, 229 Fed. 116, 143 C. C. A. 392.
Section 8 of the act, which makes it unlawful without registry to have possession of the drugs, and which likewise specifies certain ex-, cepted persons, has this proviso:
“Provided, further, that it shall not be necessary to negative any of tins aforesaid exemptions in any complaint, information, indictment or other writ or proceeding laid or brought under this a<rt; and the burden of proof of any such exemption shall be upon the defendant.”
It is claimed this has reference only to the exemptions specified in section 8. This might be so were it not for the words “any complaint, * * * indictment, etc., brought under this act,” which indicate the intended application of the proviso to the entire act. Our conclusion is that under the stated rule of construction, as well as under this proviso, it was unnecessary in the indictment to negative the statutory exceptions.
“When there are several charges against any person l’or the same act or transaction, or for two or more acts or transactions connected together, or for two or more; acts or transactions of Hie same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated.”
This indictment is within the purview of that section, and election was properly denied. Pointer v. United States, 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208; Rooney v. United States, 203 Fed. 928, 122 C. C. A. 230; McGregor v. United States, 134 Fed. 187, 69 C. C. A. 477.
“It is urged as a further ground of reversal of the judgments helow that the trial court did not instruct the jury that the testimony of the two girls was that of accomplices, and to be received with great caution and believed only when corroborated .by other testimony adduced in the case. We agree with the Circuit Court of Appeals that the requests in the form made should not have been given. In Holmgren v. United States, 217 U. S. 509 [30 Sup. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778], this court refused to reverse a judgment for failure to give an instruction of this general character, while saying it was the better practice for courts to caution juries against too much reliance upon the testimony of accomplices and to require corroborating testimony before giving credence to such evidence. While this is so, there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them. 1 Bishop’s Criminal Procedure (2d Ed.) § 1081, and cases cited in the note.”
We cannot say that Davis’ testimony is of -itself so unreasonable and improbable that a jury was not justified in believing it. It is corroborated by Taylor, who testified to long acquaintance with Wallace, who was instrumental in procuring employment for the witness with the city of Chicago ,- that he frequently purchased such drugs from Wallace prior to the Harrison Act, and that since the act became effective, he had occasionally seen Davis in Wallace’s store, and that one night the witness carried to Davis -a package which Wallace gave him, and on another night he and Wallace delivered a package to Davis, both deliveries being at places distant from the store, and under circumstances indicating intended secrecy of the transactions; and that Davis thus received the packages, containing, as Davis testified, large quantities of cocaine, which he “planted” in various places for future sale.
As to this witness complaint is made that on the trial he first testified denying all knowledge of any such transactions after March 1, 1915, and that when it appeared he had made prior statements under oath of such subsequent transactions, the court ordered him in custody of the marshal, and that the next morning he testified as above stated in regard to these subsequent transactions, implicating Wallace in an attempt to have the witness omit any reference to them. From what is disclosed in, the record, the action of the court respecting this witness was not unwarranted. The jury was cautioned by the court to examine carefully the conflicting stories told by this witness, and to determine the truth from all the evidence before them. The testimony that Wallace induced him to falsely deny these subsequent transactions was unquestionably prejudicial to the defense. But not more so in this than in any case where it is testified that a party to a transaction has attempted to suppress evidence bearing thereon. ,Evidence of such attempt is always admissible against the party making it, and is tobe considered by the jury with all the other evidence, in determining whether or not that is true which was so sought to be •suppressed or concealed. Wigmore on Evidence, § 278.
It cannot be said that the record is wholly barren of corroboration
There was practically no evidence offered to refute the testimony of Davis and Taylor. The defense consisted substantially in the testimony of several witnesses to Davis’ bad reputation for truth, some others who testified to Wallace’s previous good character, and two medical experts who testified that “dope fiends,” on becoming addicted to the habitual use of narcotic drugs, have no conception, of truth, and that their testimony is utterly unreliable—Davis, Taylor, Johnson, Foster, Gibson, Doss, E. B. Davis, Crawford, Moran, and Hauber, all witnesses admitting they were habitual users of cocaine or opium. It is upon such facts, personal to the witnesses, rather than upon any inherent weakness of their testimony incriminating Wallace, that reversal is asked on the ground of want of substantial evidence to show guilt.
However useful and beneficial to mankind the proper and scientific ■employment of such drugs has proved to be, if part of the price paid for their habitual use is the blunting or distortion of the moral sense, whereby the addict is less likely to comprehend or to state the truth, this fact, if appearing in evidence, is one from which, with all the other facts and circumstances appearing, the jury must determine where and what the truth is. If witnesses to prove unlawful sales of narcotic drugs are as a matter of law to be disbelieved and their testimony discarded from the fact alone that they are numbered among the unfortunate victims of the drug habit, it is readily perceivable how laws such as the act in question, having for their real object the due regulation of the handling of such drugs, would in many instances become practically inoperative through want of evidence, to enforce them. While the necessities of a case, and the desirability of enforcing the law, must not in any event permit conviction upon evidence less conclusive than such as shows guilt beyond reasonable doubt, a due degree of caution to avoid such outcome does not demand absolute rejection of the testimony of witnesses solely because the drug habit may tend to impair their perceptions, or to stimulate or dull the faculty for accurate observation, recollection, or relation. Where the witnesses relied on for conviction are such as those here indicated, the jury must consider everything which the evidence re
Finding no substantial error, the judgment is affirmed.