Martinez v. United States

Fifth Circuit

Martinez v. United States

25 F.2d 302, 1928 U.S. App. LEXIS 2955

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 31, 1928

DocketNo. 5253

StatusPublished

Cited by5 cases

This text of 25 F.2d 302 (Martinez v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Martinez v. United States, 25 F.2d 302, 1928 U.S. App. LEXIS 2955 (5th Cir. 1928).

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Opinion

BRYAN, Circuit Judge.

Martinez is one of several defendants who were convicted of a conspiracy to sell and of selling morphine, in violation of section 2 of the Opium Act of 1914 (26 USCA § 696; Comp. St. § 6287h) which prohibits sales of derivatives, of opium “except in pursuance of a written order” of the purchaser “on a form to be issued izz blank for that.purpose by the Commissioner of Internal Revenue.” 38 Stat. 786.

[303]*303He seeks reversal on the sole ground that the government failed to prove the negative averment that the sales were not made in pursuance of the written orders required by the statute. Clearly, the conspiracy charge did not depend upon such proof, as an unlawful agreement could exist oven though no sales were made. But, as the sentence was greater than could have been imposed upon conviction for conspiracy, it becomes necessary to consider the substantive offense alleged. The presumption arose that the sale was unlawful upon proof that it bad been made, because the government was not bound to prove a negative when the fact as to whether there was a written order was one peculiarly within the knowledge of defendant. Bishop on Statutory Crimes, §§ 1051, 1052; Taylor v. United States (C. C. A.) 19 F.(2d) 813.

The judgment is affirmed.

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BRYAN, Circuit Judge.

Martinez is one of several defendants who were convicted of a conspiracy to sell and of selling morphine, in violation of section 2 of the Opium Act of 1914 (26 USCA § 696; Comp. St. § 6287h) which prohibits sales of derivatives, of opium “except in pursuance of a written order” of the purchaser “on a form to be issued izz blank for that.purpose by the Commissioner of Internal Revenue.” 38 Stat. 786.

[303]*303He seeks reversal on the sole ground that the government failed to prove the negative averment that the sales were not made in pursuance of the written orders required by the statute. Clearly, the conspiracy charge did not depend upon such proof, as an unlawful agreement could exist oven though no sales were made. But, as the sentence was greater than could have been imposed upon conviction for conspiracy, it becomes necessary to consider the substantive offense alleged. The presumption arose that the sale was unlawful upon proof that it bad been made, because the government was not bound to prove a negative when the fact as to whether there was a written order was one peculiarly within the knowledge of defendant. Bishop on Statutory Crimes, §§ 1051, 1052; Taylor v. United States (C. C. A.) 19 F.(2d) 813.

The judgment is affirmed.

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25 F.2d 302, 1928 U.S. App. LEXIS 2955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-united-states-ca5-1928.

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