Opinion
No. 15249.
Argued September 15, 1959.
Decided February 11, 1960.
Mr. Murray Preston (appointed by the District Court), Washington, D.C., for appellant.
Mr. Richard H. Mayfield, Washington, D.C., also entered an appearance for appellant.
Mr. Arthur J. McLaughlin, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., and Carl W. Belcher, Asst. U.S. Atty., were on the brief, for appellee.
Before WASHINGTON, DANAHER and BURGER, Circuit Judges.
This appellant was charged with violation of the federal narcotics statutes, the first count being based upon 26 U.S.C. § 4705(a), the second upon 26 U.S.C. § 4704(a) and the third upon 21 U.S.C.A. § 174. She was acquitted as to the third count but was convicted and sentenced to serve five years on the first count and to serve twenty months to five years on the second count. This appeal followed.
These sections of the Code, (1958), denounce three separate offenses. Gore v. United States, 1958, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405, affirming 1957, 100 U.S.App.D.C. 315, 244 F.2d 763. Cf. Harris v. United States, 1959, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597.
We are satisfied that there was no error in the trial leading to the conviction on the second count. That judgment is therefore affirmed.
As to the first count (selling narcotics), the Government offered evidence that the appellant was asked by a plainclothes policeman to purchase narcotics for him; that he gave her money; that she went to a certain house where a seller of drugs was said to live; and that she later handed the officer a packet containing drugs. With the case in that posture, it became essential that the jury be instructed as to the elements necessary to establish a sale by the appellant. No such instruction was given. On that ground and without reaching other points raised, we hold that the court erred in failing to grant appellant's timely motion for a new trial.
No evidence was offered that appellant had bartered, exchanged, or given away narcotic drugs. Cf. 26 U.S.C. § 4705(a) (1958).
Affirmed as to the second count. Reversed as to the first count.