MAUPIN et al. v. UNITED STATES, 23 F.2d 470

VAN VALKENBURGH, Cicuit Judge. Prank R. Snyder and W. R. Maupin were in-dieted in the Western district of Oklahoma for violations 'of the Act of Devember 17. 1914, as amended, commonly known as the Harrison Anti-Narcotic,Law (26 USCA §§ 211, 691, et seq.; Comp. St. § 6287g et seq.). The indictment was in three counts. The first was for sale of morphine January 4,1926, to one Homer Smith; the second, for sale on the same date to one A. L. Raithel; the third for sale January 5, 1926, to said A. L. Raithel.

In each count it was alleged that Snyder and Maupin were dealers in morphine, persons required to register and pay the special tax prescribed by the act, and that they had neither so registered nor paid. Defendant-Snyder applied for severance, which was denied. He then demurred to the indictment. It does not appear from the record that Maupin joined in this demurrer, but that is not found to be important.

The demurrer was overruled; at the trial both defondants were found guilty upon counts 1 and 2, and were sentenced on each count to imprisonment in the federal penitentiary at Leavenworth, Kan., for a term of five years —these sentences to run concurrently. Both defendants moved for a directed verdict at the close of all the evidence. This motion was sustained as to count 3 and overruled as to counts 1 and 2. The assignment of errors presents the following as the only questions meriting consideration :

(1) The validity of the indictment.

(2) The right of Snyder to a severance.

(3) Alleged error in the admission of evidence.

(4) Refusal of requested instructions.

(5) The refusal of the court to direct a verdict, and the sufficiency of the evidence to support the verdict and judgment. 1. In the indictment, every element of the offenses charged was well pleaded, and the demurrer was properly overruled. 2. The defendants were charged as joint offenders, and the denial of the application of Snyder for severance was in the exercise of a sound discretion. 3.

Error is urged “in the admission of evidence over the objection of the defendants and of each of them in permitting certain witnesses of the government to testify to other transactions of a similar nature which were collateral to the transaction charged in the indictment.” The vague and general language of this assignment is in direct violation of rule 11 of this court, which directs that “when the error alleged is to the admission or to the rejection of evidence the assignment of errors shall quote the full substance of the evidence admitted or rejected.” This assignment might, therefore, properly be disregarded.

Braden v. United States (C. C. A. 8) 270 F. 441. However, an examination of the record discloses that, in an attempt to show the joint activity of the defendants, a witness started to testify to a previous purchase of drugs. Objection to this line of testimony was promptly sustained by the court, the inadvertent answer was stricken out, and the jurors were admonished to disregard it. Throughout the record the court jealously protected the defendants, in this as in all particulars, and this assignment is wholly without merit. 4.

An exception was preserved to the action of the court in refusing four specified instructions requested. These requests dealt with the presumption of innocence, reasonable doubt, entrapment, and the fact that an indictment is merely a formal charge, and no evidence of guilt. All these matters wore fully and correctly covered by the court in its charge, and no error can be predicated upon its failure or refusal to adopt the language requested. 5. We come finally to the refusal of the court to sustain the motion for a directed verdict.

This action makes it our duty to examine the record to ascertain whether the evidence adduced is sufficient to sustain the verdict and judgment. In each count of the indictment the defendants are charged as dealers, under the first penal provision of

section 1 of the act (26 USCA §§ 211, 691, et seq.; Comp. St. § 6287g). Therein dealers are thus defined: “Every person who sells or offers for sale any of said drags in the original stamped packages, as hereinafter provided, shall be deemed a wholesale dealer. “Every person who sells or dispenses from original stamped packages, as hereinafter provided, shall be deemed a retail dealer.” Not only is there in the record no evidence that plaintiffs in error sold in or from original stamped packages, but the fair intendment of the testimony is to the contrary. The “government, therefore, failed to prove that plaintiffs in error were persons required to register under

section 1 of the act, and thus failed to establish a material element of the offense charged,” as was the case in O’Neill v. United States (C. C. A. 8) 19 F.(2d) 322. The construction of the act announced by this court in that case controls the disposition of the one before us. The evidence adduced was ample to sustain a verdict under the second penal provision of

section 1, but unfortunately the indictment was not based upon that provision. It follows that the judgment must be reversed and remanded for a new trial. It is so ordered.