tions imposed by the act. Such registration and payment of the special tax did not authorize, warrant, or entitle him to enter into a conspiracy with other persons to sell and barter these drugs, and in event you believe from the testimony adduced that the defendant Phillip Bryan entered into the conspiracy as above described and defined, if any such conspiracy was formed, and if you further believe from the testimony that the act charged to have been done by him, if it was done, to wit, the sale to one Farris Herring of about 5 grains of morphine, was in fact made in pursuance of and to effect the object of the conspiracy, and was not made in his personal capacity as a registered and licensed pharmacist or druggist, then it would be your duty to consider this defendant in the same light and attitude as the remaining defendants in this count. The testimony adduced also reveals that the defendant Clarence G. Wallace was registered and had paid the special tax in conformity with the provisions of the act, as a manufacturing chemist, for the period covered by the charge of conspiracy contained in the third count of the indictment. You are charged that in event you find and believe from the evidence that the defendant Clarence G. Wallace had in his possession about an ounce of morphine for the purpose of selling and distributing same to effect the object of the conspiracy charged in the third count, his registration and payment of the special tax as a manufacturing chemist would be no defense for him. Again, I charge you, as a matter of law, that all who take part in the conspiracy after it is formed and while it is under execution, and all who, with knowledge of the facts, concur in the plan originally formed and aid in executing it are fellow conspirators. Their concurrence without proof of the agreement to concur is conclusive against them. They commit the offense when they become partners to the transaction or further the original plan. In considering and reaching your conclusions under the third count you should take into consideration the testimony adduced before you as it bears and sheds light upon the acts and transactions of the respective defendants named therein, and if after weighing and considering the testimony and the facts and circumstances in evidence you believe therefrom and believe beyond a reasonable doubt that the defendants, Clarence G. Wallace, Phillip Bryan, Joe Meadows, Joe Lane, and Tood Wallace, conspired, confederated, and agreed together to commit the offense charged-that is, to sell and barter morphine, which is a salt and derivative of opium, and to sell and barter cocaine, which is a salt and derivative of coca leaves, to sundry persons, and if you further believe that to effect the object of such a conspiracy, if it was formed, Clarence G. Wallace bought and had in his possession about 1 ounce of morphine for the purpose of selling and distributing the same to effect the object of the conspiracy, or if you believe that Charlie Hollingsworth had in his possession and under his control about 10 grains of morphine for the purpose of selling and delivering same to one Dan Waggoner for the purpose of effecting the object of the conspiracy, or if you believe that Phillip Bryan sold to one Farris Herring about 5 grains of morphine to effect this object—then and in that event it will be your duty to find the defendants guitly under the third count of the indictment. If you do not so find, it will be your duty to find them not guilty. In event you find and believe from the evidence that certain of the defendants named conspired and confederated together as above stated, and that one or more of the defendants named did not conspire and confederate, then it would be your duty to find those of the defendants so conspiring and confederating guilty and those not so conspiring and confederating not guilty. The fourth count of the indictment charged that the defendants Clarence G. Wallace, Phillip Bryan, Charlie Hollingsworth, Joe Meadows, Joe Lane, and Tood Wallace, without being then and there registered and without having paid the special tax as required by the act of Congress approved December 17, A. D. 1914, unlawfully and knowingly sold to Charlie Smith about 10 grains of a certain salt and derivative of opium-that is, morphine-not in pursuance of a written order such as is required by such act of Congress, and then and there under such circumstances that neither the said Charlie Smith nor such sale came under any of the exceptions and exemptions provided for in said act of Congress. To the charge contained in the fourth count each of the defendants save and except Charlie Hollingsworth has entered his plea of not guilty. As to the defendant Charlie Hollingsworth, while he has entered a plea of guilty to this count, after hearing the evidence, I find that it does not connect him with the offense charged, and you will therefore find him not guilty under this count. I further instruct you that the evidence adduced before you fails to connect the defendants Joe Meadows and Tood Wallace with the offense charged in this count, and you will therefore find the defendants Joe Meadows and Tood Wallace not guilty of the charge contained in this count on their plea. Section 2 of said act provides, among other things, as follows: It shall be unlawful for any person to sell * * * any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. If you believe from the evidence that the defendants Clarence G. Wallace, Phillip Bryan, and Joe Lane sold to Charlie Smith the morphine as alleged in the fourth count, then and in that event you will find the above-named defendants guilty. If you do not so find, you will find them not guilty. In connection with this count I charge you that the registration and payment of the special tax as required by law by Phillip Bryan to do business in the name of the East Side Pharmacy, and of Clarence G. Wallace as a manufacturing chemist, would be no defense to the charge as contained in this count. If after considering the testimony as adduced before you in connection with this count you fail to find any one or more of the above-named defendants— that is, Clarence G. Wallace, Phillip Bryan, or Joe Lane-guilty, you will find such defendant or defendants not guilty. The sixth count of the indictment charges that the defendants Clarence G. Wallace, Phillip Bryan, Charlie Hollingsworth, Joe Meadows, Joe Lane, and Tood Wallace, and without having paid the special tax as required by law, unlawfully and knowingly sold to Dan Waggoner about 10 grains of morphine, not in pursuance of a written order such as is required by the act of Congress and then and there under such circumstances that neither the said Dan Waggoner nor the sale as aforesaid came under any of the exceptions or exemptions provided for in said act. The defendants Clarence G. Wallace, Phillip Bryan, Joe Meadows, Joe Lane, and Tood Wallace have plead not guilty to the charge contained in this count, and the defendant Charlie Hollingsworth has plead guilty thereto. It therefore becomes your duty to return a verdict of guilty against Charlie Hollingsworth under this count on his plea. You are charged that the evidence adduced before you fails to connect the defendants Joe Meadows, Joe Lane, and Tood Wallace with this count, and you will therefore find them not guilty of the charge made therein. I say to you that under this count, as in the fourth count, the registration by Bryan and by Wallace, respectively, under this act of Congress and the payment of the special tax, is not a defense to the charge contained therein. Now, if you believe from the evidence that the defendants Wallace and Bryan sold or aided and assisted Charlie Hollingsworth in selling about 10 grains of morphine to Dan Waggoner, and that the sale to Waggoner was not made in pursuance of a written order such as is required by law, then and in that event it will be your duty to find the defendants Clarence G. Wallace and Phillip Bryan guilty under this count of the indictment. If you do not so find as to both of them or either of them, then it will be your duty to find them or either of them as your survey of and conclusions from the evidence warrant. The ninth count of the indictment charges the defendants Clarence G. Wallace and Phillip Bryan unlawfully obtaining of and from the Maxwell-Clark Drug Co., in the city of Fort Worth, about 1 ounce of a salt and derivative of opiumthat is, morphine-by means of a certain order form theretofore procured by Clarence G. Wallace from the collector of internal revenue of the third district of Texas, the same being the order form provided by law for securing narcotic drugs, which said morphine was so obtained by the said Wallace and Bryan for a purpose other than the sale and distribution thereof by them in the conduct of a lawful business in said drug, or in the legitimate practice of a profession-that is, to be sold by them, the said Wallace and Bryan, to persons not registered under the act of December 17, 1914, and who had not paid the special tax provided by said act, and not in pursuance of any written order or prescription, and contrary to law. To these charges the defendants Clarence G. Wallace and Phillip Bryan, respectively, have entered their plea of not guilty. Section 2 (d) of the act provides in part as follows: No collector shall sell any of such forms (meaning the forms provided to be sold to intending purchasers of narcotic drugs) to any persons other than a person who is registered and has paid the special tax as required by section 1 of this act in his district. Section 2 (d) further provides that It shall be unlawful for any person to obtain by means of such order forms any of the aforesaid drugs for any purpose other than the use, sale, or distribution thereof by him in the conduct of a lawful business in said drugs or in the legitimate practice of his profession. The evidence adduced under this count of the indictment reveals that Clarence G. Wallace was registered as a manufacturing chemist and had paid the special tax as provided by the act. Now, if you believe from the evidence that the defendant Clarence G. Wallace by means of said order forms procured from the collector of internal revenue of the third district of Texas, and by means of said order forms so procured, obtained about 1 ounce of morphine for a purpose other than the use thereof by him in the conduct of a lawful business in said drug—that is, the use thereof in the business of a manufacturing chemist-then and in that event it will be your duty to find the defendant Clarence G. Wallace guilty under the ninth count of the indictment. If you do not so find, it will be your duty to find him not guilty. You are further charged that the evidence fails to connect the defendant Phillip Bryan with the charge contained in the ninth count of the indictment, and you will therefore acquit him on this count. The law clothes the defendants with the presumption of innocence, which attends and protects them until it is overcome by testimony which proves them guilty "beyond a reasonable doubt," which means that the evidence of a defendant's guilt as charged must be clear, positive, and abiding, fully satisfying the minds and consciences of the jury. It is not sufficient in a criminal case to justify a verdict of guilty that there may be a strong suspicion or even a strong probability of guilt; nor, as in civil cases, a preponderance of evldence in favor of the truth of the charge against the defendant; but what the law requires is proof by legal and credible evidence of such a nature that when it is considered by the jury and given its natural effect they feel, when they have weighed and considered it, of a secure, undoubted, and entirely satisfactory conviction of the guilt of the defendant or defendants. This, and this only, is required. It is not necessary that the jury should have a certainty which does not belong to any human transaction whatever; it is only necessary that they should have that certainty with which they themselves act in transacting their own most important concerns in life. This, and this only, is required. If this is proved, the jury should convict; if not, they should acquit. During the progress of the trial the court has commented upon the evidence and its weight. I now say to you that such comment was made simply and solely for the purpose of assisting in the development of any light that might be such as to enable the jury to understand the case and to discover and seize upon the very truth. And if the comments of the court during the progress of the trial and in the course of this charge do not harmonize with the views entertained by you gentlemen of the jury I now say to you that you should put aside the views of the court and reach your own conclusions irrespective thereof, because, as I have already stated, you are the judges of the credibility of the witnesses, of the weight of the evidence, and the facts proved thereby. This case, gentlemen, with all its facts and circumstances is now before you. It calls for your full and fair deliberation and consideration, and your verdict, whatever it may be, should be based alone upon the evidence and upon the facts and circumstances in evidence, measured by the law given you in this charge, and not in any degree upon the feelings either of sympathy, of bias, or of prejudice. You will retire, gentlemen, select your own foreman, and consider of your verdict. INDEX. A. Abstracts of judgments; certificates; emergency revenue law.. Acetate of lime; denatured alcohol.. Dept. No. 2250 2128 2252 Advertisements of whisky shipped on approval. 2168 Affidavits to tax returns... 2174 Air domes, special tax on; emergency revenue law. 2217 Alcoholic medicinal preparations, revised list of; special tax. 2222 Amending section 3246, Revised Statutes; special tax. 2179 Annual inventories by cigar and tobacco manufacturers.. 2259 2151 Application for receiver (United States v. Capital City Dairy Co.). Assessment of 100 per cent penalty. 2209 2251 2118 2266 B. Bad debts; income tax... Bankers; special-tax computations.. Banks and trust companies; ownership certificates; income tax.. Bonds and dividends, interest from; income tax.. Bonded manufacturing warehouses, distilled spirits in tank cars to....... Bills of lading; emergency revenue law. (See Emergency revenue law.) Branding and marking retail packages of oleomargarine. 2201, 2224 2125 2258 2208 2127 2162 2257 2141 2164 2165 2133 2212 2233 2248 2263 2249 Carnivals, circuses, exhibitions, etc.; emergency revenue law.. 2183 Certificates; abstracts of judgments; emergency revenue law.. Charter parties, stamp tax on (United States v. Hvoslef et al.). Circuses, carnivals, exhibitions, etc.; emergency revenue law. (287) 2183 2251 2247 |