Opinion
No. 8955.
February 9, 1942.
Appeal from the District Court of the United States for the Western District of Tennessee; Marion Speed Boyd, Judge.
On petition for rehearing, 124 F.2d 431.
Petition denied.
For former opinion see 124 F.2d 431.
Certiorari was denied by Supreme Court, 316 U.S. 675, 62 S.Ct. 1043, rehearing was denied, 316 U.S. 710, 62 S.Ct. 1267, 86 L.Ed 1776; and second petition for rehearing was denied, 316 U.S. 711, 62 S.Ct. 1273, 86 L.Ed. 1776.
Dwayne D. Maddox, of Huntingdon, Tenn., for appellant.
Wm. McClanahan, U.S. Atty., of Memphis, for the United States.
Before SIMONS, ALLEN, and McALLISTER, Circuit Judges.
This case came on to be heard upon the petition for rehearing, the brief in support thereof, the answer of the appellee thereto, and the reply to the brief of the appellee; on consideration whereof, it appearing that the appellant was convicted of selling narcotics in violation of Section 2554(a) I.R.C.; 26 U.S.C.A. Int.Rev. Code, § 2554(a).
And it appearing that appellant has been tried twice under the indictment herein; and that the principal questions raised in the petition for rehearing were not called to the attention of the District Court, the record showing that no demurrer was filed, no application for a bill of particulars was made, no objections or exceptions were taken and no request was made to charge the jury; and it appearing that these questions were not raised at the hearing on the merits in this court, and that the judgment is not to be reversed under such circumstances unless clear miscarriage of justice is shown, Miller v. United States, 6 Cir., 300 F. 529, certiorari denied, 266 U.S. 624, 45 S.Ct. 123, 69 L.Ed. 474;
And it appearing that while the indictment charges that the sale of morphine sulphate was not made in pursuance of a written order "on a form issued in blank for that purpose by the Commissioner of Internal Revenue", and while Section 2554(a) requires that such order be written on "a form to be issued in blank for that purpose by the Secretary" of the Treasury, the Secretary is authorized by statute to delegate and has delegated authority to the Commissioner of Internal Revenue to issue such order forms; Act of March 3, 1927, 44 Stat. 1381, §§ 4(a) and 4(b); Treas.Dec. No. 3999, issued March 18, 1927; Treas.Dec. No. 1 (Bureau of Prohibition), issued April 1, 1927; Act of June 14, 1930, 46 Stat. 585, § 3(b); Treas.Dec. No. 2 (Bureau of Narcotics), issued July 1, 1930; Section 2606, Title 26 U.S.C.A. Int.Rev.Code; Treas.Dec. No. 4884, issued February 11, 1939:
And it appearing that the indictment sufficiently apprised the appellant of the charge against him and is sufficiently specific to bar a second conviction for the same offense, and that there is no clear miscarriage of justice shown by the present record:
It is ordered that the petition for rehearing be, and it hereby is, denied.