Henry C. Wilson v. United States

366 F.2d 666, 125 U.S. App. D.C. 87, 1966 U.S. App. LEXIS 5283

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 3, 1966
• Docket: 19675_1
• Status: Published

Opinions

DANAHER, Circuit Judge:

In the District of Columbia Court of General Sessions this appellant was convicted of narcotics vagrancy under D.C. Code § 33-416a(b) (1) (B) (1961), which applies to any “vagrant” as defined in the Act who

“is found in any place, abode, house, shed, dwelling, building, structure, vehicle, conveyance, or boat, in which any illicit narcotic drugs are kept, found, used, or dispensed.”

The District of Columbia Court of Appeals affirmed¹ after noting that Wilson’s “principal thesis here is that the Narcotic Vagrancy statute is unconstitutional.” We granted the appellant’s petition for allowance of an appeal.

The Government tells us:

“In the opinion of appellee, the following question is presented:

“Whether 33 D.C.C. § 416a (i), as construed by the District of Columbia Court of Appeals, denied appellant due process of law under the Fifth Amendment?”

Despite the Government’s submission of the question in that form, we need not reach the issue of constitutionality. Subsection 416a(i) provides:

“(i) In all prosecutions under the provisions of this section [33-416a], the burden of proof shall be upon the defendant to show that he has lawful employment or has lawful means of support realized from a lawful occupation or source.” (Emphasis added.)

Our study of the record discloses that there was no issue respecting Wilson’s “lawful employment.” There was no inquiry as to whether or not he “has lawful means of support realized from a lawful occupation or source.” Neither of these alternatives seems to have been involved in the information filed in the trial court. There the Government had charged and had offered evidence only to show that on October 19, 1964, this appellant had been “found” in a “vehicle” in which “illicit” narcotic drugs were “kept, found, used, or dispensed.” The language of the subsection in question, set forth above, unlike subsection (A) or subsection (C) of section 416a, for example, does not specify that conviction may follow if the vagrant defined in section 416a(b) (1) “fails to give a good account of himself.” We can not assume that the omission of such language was other than purposeful, and certainly the record here discloses no proper foundation 2 for an application of subsection 416a(i), supra.

The evidence of record discloses that officers attached to the Narcotics Squad approached an automobile in the early afternoon of October 19, 1964. Three men were in the front seat while in the rear seat was the appellant with one Gar-nett (who was not arrested). Officers asked the driver for his permit, which was produced. They asked the owner of the car, also in the front seat, for the car registration, which according to the testimony, was thereupon removed from the glove compartment. An officer testified he then could see paraphernalia of a type utilized by narcotics users. The police next searched the car and found “in the space behind the rear seat” a needle, a bottle-cap cooker and an eyedropper syringe.

The appellant testified that he had left the Court of General Sessions on the morning of the 19th before or around noontime. He had been picked up by his friends who were to give him a ride back to his home in northeast Washington. They were waiting to have repairs made to the speedometer when the officers approached the car. Wilson admitted that he had twice been convicted of violations of the Harrison Narcotics Act but he testified that he knew nothing about and had not seen the various items said to have been narcotics paraphernalia.

We fail to perceive any issue deriving from this appellant’s mere presence as a passenger in the back seat of the car which gives rise to placing upon him a burden of proof within the meaning of D.C.Code § 33-416a(i), supra.

Reversed.

1 . Wilson v. United States, 212 A.2d 805, 806 (D.C.App.1965).

2 . In a prosecution under D.C.Code § 22-3302 (1961), the District of Columbia Vagrancy Act, we stated that the words not giving “a good account of himself” mean “not giving a good account when a question has been followed up by an order or demand. Since appellant was never confronted with an order or demand to explain her presence in the street, her conviction must be reversed.” Beail v. District of Columbia, 91 U.S.App.D.C. 110, 111, 201 F.2d 176, 177 (1952). Cf. Freeman v. United States, 116 U.S.App.D.C. 213, 214, 322 F.2d 426, 427 (1963).