The defendants are seeking to reverse the judgment of the District Court, in which they were convicted for conspiracy to sell 20 pounds of opium, not in pursuance of written ordеrs of the purchasers on forms issued for that purpose by the Commissioner of Internal Revenue. Joseph Wiener is the father of the other two defendants. The government charges and sought to prove the following facts: Joseph and Abram kept a small grocery store in their home at 103 Hickory street, Wilkes-Barre, Pa. On or about December 2, 1920, Abram Wiеner made application to the collector of internal revenue at Scranton to be licensed as a dealer in opium and other narcotics under thе firm name of Joseph Wiener & Son. The license was granted, and Joseph and Abram became registered dealers. This license was renewed, and again on July 1, 1921, they registerеd with the collector at Scranton as dealers in narcotics. On July 12, 1921, they ordered from the firm of Merck & Co., New York, 20 pounds of opium, which they received two days later. On July 25th they tоok this to New York to sell, but did not do so, and on the 27th they returned with it, and the next day Joseph put it into a traveling bag and set it in a hallway adjoining the store. On that day Sam Wiener, who did not live аt home, with his employer, a man by the name of Baker, visited
The government charges the defendants with conspiracy to sell opium in violation of the Harrison Narcotic Act (Comp. St. §§ 6287g-6287q), and set out the above facts as overt acts done by the defendants to effect the object of their conspiracy. All the facts alleged may be true, but the proof is meager, and the conclusions to be drawn therefrom questionable. The record doеs not disclose any evidence establishing that the defendants ordered opium from Merck & Co. on July 12, 1921, or that they received it two days later. They did, however, get it from some place; but the evidence is silent as to the place. The only evidence to prove that they went to New York to sell it on July 25, 1921, and returned on July 27th, is found in a single statement made by Leonard Sudack. He testified that Sam Wiener and Baker were in his room one night “talking about opium,” and, on being asked what they 'said, he replied:
“They were talking that they would go to New York to sell it, and they went a couple of times to New York to sell it.”
But it is difficult, if not impossible, to determine who went, and when they went, if at all, and what opium they took with them. If, however, they were speaking of the 20 pounds of opium mentioned in the indictment, and if the pronoun “they” refers to the defendants, and they went on July 25, 1921, and returned two days later, this testimony was strickеn out by the trial judge, and is therefore not before us. The following is the testimony:
“Q. Where was Baker? A. I was laying on the bed, and Baker and Wiener came in and started to talk about the opium.
“Q. Did they sit down? A. Yes, sir.
“Q. Were they smoking? A. Yes, sir.
“Q. Go on and tell us what they said. A. They were talking about opium.
“Q. Who were? A. Baker and Sam Wiener.
“Q. What'did they say? A. They were talking that they would go to New York to sell it, and they went a couple of times to New York to sеll it.
“Mr. Donahoe: We ask to have that stricken out.
“The. Court: That may be stricken out.”
All that there is left, therefore, from which to establish a conspiracy, are the first, sixth, 'seventh, and eighth overt acts set out: Registering as dealers in narcotics under the circumstances, placing the bag containing the opium in the hallway, showing it to Baker and informing him of its contents, and reporting the alleged theft to the police of Wilkes-Barre.
Registration as a dealer in narcotics and keeping a grocery store may be bringing together incongruous businesses, and therefore suspicious; but there does not appеar to have been any suppression of facts or deception practiced by the defendants in registering and becoming authorized dealers in narcotics, and sinсe the government permitted and apparently sanctioned the union of incongruous businesses, it is a serious question as to whether or not registration is a fact from which a lеgitimate inference of guilt may be drawn.
Reporting the alleged theft of the opium to the police was the natural, practical, and sensible thing to do, if the оpium was actually stolen. The larceny of the opium was the consummation of the conspiracy, according to the government, and the crux of this case. If it was not stolen, the judgment of the District Court was right, and should be affirmed; but, if it was stolen, the conspiracy built up by the government falls, and the judgment should be reversed. This final act in effecting the object оf the alleged conspiracy may serve as a commentary on the other three overt acts. If the evidence as to the theft justifies the conclusion that the opium was not stolen, it naturally follows that there was a conspiracy, and the other overt acts were steps taken to carry it out. If, however, the evidence does nоt justify such conclusion, the other overt acts are insufficient.
If the evidence is as consistent with the theory that the opium was stolen as it is with the theory that it was not stolen, the motiоn for binding instructions, for the reason that the allegations in the indictment had not been proved, should have been granted, and defendants’ first point, that they could not be convictеd under the evidence in the case, should have been affirmed. Every person is presumed to be innocent until his guilt is proved beyond reasonable doubt. The presumption of innоcence is evidence in favor of the accused, introduced by the law in his behalf. This principle is "axiomatic and elementary, and its enforcement lies at the foundаtion of the administration of our criminal law.”
“It Is a maxim which ought‘to be inscribed in indelible characters in the heart of every judge and juryman.” Coffin v. United States,156 U. S. 432 , 453, 456, 15 Sup. Ct. 394, 404 (39 L. Ed. 481 ).
“Unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial court to instruct the jury to return a verdict for the accused; and where all the substantial evidenсe is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a judgment of conviction.” Union Pacific Coal Co. v. United States.173 Fed. 737 , 740,97 C. C. A. 578 , 581; Wright v. United States,227 Fed. 855 , 857,142 C. C. A. 379 .
In the case of Hart v. United States,
“Mow it is a familiar rule in criminal cases that, to justify a conviction upon circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt,”
No one knows whether or not the оpium was stolen. There is not a word of testimony that it was not. The defendants reported that it was, and their report stands uncontradicted. They not only reported that it had beеn stolen, but they gave the name of the man whom they suspected, Baker, the friend and employer of Sam Wiener, and he at once disappeared from Wilkes-Barre.
We are of opinion that, under all the evidence in the case, the defendants should not have been convicted of conspiracy as charged in the indictment.
The judgment of the District Court is reversed