OLIVER v. UNITED STATES, 267 F. 544

WATKINS, District Judge. Edward T. Oliver, the plaintiff in error, a druggist at Bluefield, W. Va., was convicted in the District Court of the Southern District of West Virginia upon an indictment charging him in two counts with violation of the Harrison Narcotic Act (Comp. St. §§ 6287g-6287q).

Each count charged him with having in his possession and under his control a certain fluid compound, manufacture, derivative, and preparation of opium, commonly called paregoric, which contained two grains of opium in each fluid ounce thereof, and that he feloniously, unlawfully, and in violation of the aforementioned act sold, dispensed, and distributed to the purchasers named in the indictment 16 fluid ounces of said preparation, without having registered under the terms of the act, and without having paid the tax thereifi required, and that the preparation was sold, not as a medicine, but for the purpose of evading the intentions and provisions of the act.

The crime is charged substantially in the language of the statute. The assignments of error may be grouped and considered under the following general classifications:

(1) Constitutionality of the act.

(2) Sufficiency of the. indictment.

(3) Sufficiency of certain evidence.

(4) Oral charge of the court.

(5) Competency of the testimony of a thirteen year old witness.

(6) Evidence as to compromise. 1. While the constitutionality of the act is questioned, it is conceded that the Supreme Court has settled this question in the cases of United States v. Jin Fuey Moy, 241 U. S. 394, 36 Sup. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854; United States v. C. T. Doremus, 249 U. S. 86, 39 Sup. Ct. 214, 63 L. Ed. 493; W. S. Webb and Jacob Goldbaum v. United States, 249 U. S. 96, 34 Sup. Ct. 217, 63 L. Ed. 497. 2. The indictment charges an offense under the act, and the demurrer and motion to quash were properly overruled. The first

section of the act (Comp. St. § 6287g) makes it unlawful for any person to sell any derivative or compound of opium 'whatever without registration and without the payment of the,special tax provided.

Section 6 (Comp. St. § 62871) does not purport to exempt from the operation of the act the sale of all preparations which do not contain more than two grains of opium to the fluid ounce, but only such preparations of that character as are sold, distributed, given away, dispensed, or possessed as medicine, and not for the purpose of evading the intentions and provisions of the act. So far from being demurrable, the indictment is unnecessarily specific in negativing the exceptions contained in

section 6-

Section 8 of the act (Comp. St. § 6287n) makes it unnecessary to negative the exemptions, and also places the burden of proof of any such exemptions upon the defendant. The case of Webb & Goldbaum v. U. S., supra, recognizes the right of the government to require persons, who claim the benefit of the exemptions of the act, to comply with the requirements. The charge here is not against the mere possession, for which no registry or payment of tax is required, but is for the sale under conditions prohibited by the statute. The charge, therefore, is radically different from that in the Jin Fuey Moy Case. 3.

There was ample evidence to go to the jury upon the question of whether the drug was sold as a medicine or for the purpose of evading the intentions and purposes of the act. To begin with, there was testimony that the plaintiff in error kept on hand an abnormally large quantity of the drug. Two witnesses testified that they were addicts to the use of drugs containing opium, and that they had purchased these drugs from the plaintiff in error, with more or less frequency; one of the witnesses stating that she had been advised by him to quit the use of paregoric, because it was injurious. The testimony of J. M.

Branksy, an employe of the Internal Revenue Department, was to the effect that he purchased from plaintiff in error a pint of paregoric upon the statement that it was to be used by an addict, and subsequently, through Sherman French, obtained another pint upon the representation that it was to be used for like purpose. Plaintiff in error testified in his own behalf, and did'not controvert any of this testimony. 4.

The presiding judge, in his remarks to the jury, stated: “Now, the purposes of the act of Congress are, first,4 to obtain a license tax for the government as a part of its revenue; incidentally, its purpose is to prevent sales being made to those who are opium addicts, or administering to opium addicts.” In this there was no error. In the Jin Fuey Moy Case, the court said: ‘It may be assumed that the statute has a moral end, as well as revenue, view.” The exception provided for in

section 6 was based upon humanitarian grounds. The government being willing to forego its claim for revenue at the demand of suffering humanity furnishes no reason for denying it the right of a rigid énforceinent of the law against those who, by falsely claiming to act under the exemptions provided, would use this pretense as a means to debauch its citizens. 5.

Sherman French was permitted to. testify on behalf of the government, though, after being first examined by counsel for the government touching the matter of his competency as a witness, he stated that he was 13 years of age, but that he did not know the nature of an oath.

He was thereupon examined by the court, and asked if he knew what he was intended to do when he was sworn to testify the truth, and he replied, “To tell the truth.” It was peculiarly within the province and discretion of the court to determine the competency of the witness, and, in the absence of an abuse of discretion, the testimony must be held to be competent.

While it is true that the witness stated that he did not understand the nature of an oath, it is doubtless true that the court concluded that his answer related to his inability to give a definition of an oatli in more or less technical terms, rather than to his knowledge and realization of its obligation. In determining the competency, and intelligence of a witness, the court may and should take into consideration the general appearance and manner of the witness, as well as the statements made by him.

The general rule is that the question of the competency of children as witnesses rests within the sound discretion of the court, and is to be determined by the trial judge. It does not imply the necessity of defining the meaning of the word “oath.” People v. Bemell, 10 Cal. 66; State v. Meyer, 135 Iowa, 507, 113 N. W. 322, 124 Am. St. Rep. 291, and note, 14 Ann. Cas. 1; 1 Wigmore on Evidence, § 505; Greenl. Ev. § 367; Wheeler v. United States, 159 U. S. 523, 16 Sup. Ct. 93, 40 L. Ed. 244; Turner v. American Security Co., 213 U. S. 258, 29 Sup. Ct. 420, 53 L. Ed. 788. 6.

At the trial plaintiff in error was introduced as a witness on his own behalf, and he testified, among other things, that after his arraignment before the commissioner, and after he had been held to the grand jury and had given bond for his appearance, he. was advised by the representative of the government that his offense could properly be compromised with the Internal Revenue Department, and was also directed to take the matter up with G. C. Holt, who was one of the men connected with the office of the Revenue Department.

He stated further that Holt told him that he could make an offer of compromise to the Commissioner of Internal Revenue, inclosing a certified check for the amount of his offer, and that if Lilis offer was refused his money would be returned, and he could then make another offer. He further testified that he accordingly obtained and sent to the Commissioner of Internal Revenue a certified check for $100, dated March 6, 1919, accompanied by a letter in which he made an offer of the said sum as a compromise and settlement of the case.

This check was indorsed by the Commissioner of Internal Revenue and made payable to the order of S. A. Hays, Collector of Internal Revenue for the District of West Virginia, and it was stamped “Paid,” and across its face, when returned, was also stamped the words: “This ehecfe is in payment of an obligation to the United States and must not (sie?) be paid at par. ' No protest. S. A. Hays, Collector, Dist. of W. Va.” A receipt was forwarded to the defendant, signed by the said S. A.

Hays, Collector, in which receipt, among other things, appeared the following words: “Form 23, O. in C. for violation of Act • of Dec. 17/14, Narcotic Daw, .$100.60. Received payment Mar. 17, 1919. S. A. Hays, Collector, by Rathbone, Asst.” After admitting the aforesaid' evidence for the purpose of making up the record, the court excluded the same, and directed the jury not to consider the evidence, to which ruling the defendant, by counsel, excepted. ‘ The exclusion of this evidence was error.

Section 3229 of the Revised Statutes (Comp. St. § 5952) provides: “The Commissioner of Internal Revenue, with the advice and consent of the Secretary of the Treasury, may compromise any civil or criminal case arising under the internal revenue laws instead of commencing suit thereon; and, with the advice and consent of the said Secretary and the recommendation of the Attorney General, he may compromise any such case after a suit thereon has been commenced.” • .

Under this statute a compromise once effected, whether before or after prosecution, is as complete a discharge of the defendant as a verdict of acquittal by a jury. The evidence here shows that the defendant, not only adopted the course provided by statute, but that he acted under the specific advice of a representative of the government. It is true that there was no evidence that he had obtained or attempted to obtain directly from the Secretary of the Treasury his advice and consent, or that he had directly obtained or applied to the Attorney General for his recommendation.

The statute does not expressly state how the consent or approval of these officers is to be obtained. It is evidently contemplated, however, that the advice and consent of the Secretary of the Treasury and the recommendation of the Attorney General should be sought and obtained by the Commissioner of Internal Revenue, who himself finally passes upon the matter, and who is the party charged with directly dealing with the defendant, and it is to be presumed that, when he finally accepts an offer of compromise of a defendant, he has previously discharged his duty of communicating with the other officers.

To hold otherwise would bring the acts of the officers of the government under inquiry and frequently under a suspicion which ought not to be allowed to arise. It is of the highest importance that citizens, who deal with an officer of the government charged with an official duty, shall have the right to presume, in every instance, in the absence of positive proof to the contrary, that such officer did his duty. 22 R. C. L. pp. 472 to 475; Wilkes v. Dinsman, 7 How. 89, 12 L. Ed. 618; United States v. Crusell, 14 Wall. 1, 20 L. Ed. 821; Keely v. Sanders, 99 U. S. 441, 25 L. Ed. 327; Nofire v. United States, 164 U.

S. 657, 17 Sup. Ct. 212, 41 L. Ed. 588; 10 Ency. of U. S. Supreme Court Rep. pp. 421, 422, and cases cited. The government offered no testimony to contradict or explain the testimony as to a compromise. So far as the evidence went, it tended to show that the money offered in compromise to the proper officer of the government had been accepted and retained by him, and it should have been submitted to the jury as at least tending to show that a compromise had been effected. In the case of United States v. Chouteau, 102 U. S. 603, 26 L.

Ed. 246, the court held that sureties on a distiller’s bond could not be subjected to the penalty attached to the commission of an offense, when the principal had effected a full and complete compromise with the government, under the sanction of

an act of Congress, of prosecutions based upon the same offense and designed to secure the same penalty. The court said: “Tins compromise pleaded must operate for the protection of the distiller against subsequent proceedings as fully as a former conviction or acquittal. He bas been punished in the amount paid upon the settlement for the offense with which be was charged, and that should end the present action, according to the principle on which a former acquittal or conviction may be invoked to protect against a second punishment for the same offense.

To hold otherwise would be to sacrifice a great principle to the mere form of procedure, and to render settlements with the government delusive and useless.” In the case of Rau v. United States, 260 Fed. 134, 171 C. C. A. 170, the court said: “TJie Commissioner of Internal Revenue had the power and authority by virtue of the statute above referred to, and with the advice and consent of the Secretary of the Treasury, to compromise the criminal case as well as the civil ca.se arising under the internal revenue laws. The compromise may have been made before the institution of the criminal proceedings or after.

The provision relating to the necessary consent of the Attorney General evidently intends a cgmpromise after the institution of a civil or criminal action. If the defendant, in good faith, made the payment of the lax and penalty for the purpose of compromising the impending action, he is entitled to full protection and the benefits derived therefrom.

If the money was accepted with the promise of immunity from further punishment in a criminal proceeding, it would be a complete defense to this indictment. * * * The fact that the money was retained by the United States is some evidence of its acceptance in compromise. We believe that under the facts disclosed in tills record, sis far as the defendant was permitted to show them, it was required of the court to submit as a question of fact to the jury, under proper instructions, whether or not a compromise was entered into.” The case of Willingham v. United States, 208 Fed. 137, 127 C. C.

A. 263, is in accord with the view's herein expressed. Reversed.