Opinion
No. 14857.
December 14, 1955.
Eichi Oki, Honolulu, Hawaii, for appellant.
Louis B. Blissard, U.S. Atty., Charles B. Dwight, III, Charles R. Wichman, Asst. U.S. Attys., Honolulu, Hawaii, Lloyd H. Burke, U.S. Atty., San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, BONE, Circuit Judge, and BYRNE, District Judge.
Richard Yaw appeals from a judgment of conviction on the following charge of an indictment against him and other persons:
"That on or about September 30, 1954, in the City and County of Honolulu, Territory of Hawaii, and within the jurisdiction of this Court, Robert Yaw, Richard Yaw, also known as Dickyman, and Edward Joseph Peltier, Jr., also known as Eddie, being persons who, as transfer ees, were required to pay the transfer tax imposed by Section 2590(a) of Title 26, United States Code, did knowingly, willfully, unlawfully and feloniously acquire and obtain ten (10) marihuana cigarettes without having paid said transfer tax, in violation of Section 2593(a) of Title 26, United States Code." [Emphasis supplied.]
The ground of the appeal is that there is no evidence to support the verdict.
It is not contended that Richard Yaw himself was the "transferee" of whom it is charged that he did "acquire and obtain" the cigarettes. The contention is that Richard Yaw "knowingly and feloniously aided and abetted" one Peltier in acquiring them. 18 U.S.C. § 2. It is not questioned that Peltier did acquire them "on or about November 30, 1954" in violation of the statute and the sole question here is whether there is evidence that Richard aided and abetted in Peltier's acquiring them. Here the charge is not aiding and abetting the "sale" of the ten packages of cigarettes, a separate offense, nor of a "trafficking" in such cigarettes.
"Transferring" Marihuana to one who has not paid the tax imposed by Section 2590 is made criminal by 26 U.S.C. § 2591 (now 26 U.S.C. § 4741, 4742). "Trafficking" in marihuana is made criminal by 26 U.S.C.A. § 3234 (now 26 U.S.C. § 4755).
There is no testimony whatever that Richard Yaw ever saw or even knew of the existence of Peltier. Richard, a lad of 19 years of age, was the younger brother of Robert Yaw. On September 30, 1954 at about 3 o'clock P.M. one Cho, an undercover police officer, sought to acquire some marihuana cigarettes from Richard. Richard, who did not know Cho was an officer, said he did not have any but advised Cho that his brother Robert might get some for him. Through Richard's communicating with Robert, Cho met him at seven o'clock that evening. This was Richard's last connection with the transaction, Richard not being present at the evening meeting. Undoubtedly Richard could have been charged with aiding and abetting Cho in his subsequent acquiring of the cigarettes as a "transferee" from Peltier, but this is not the charge of the indictment, Cho's name not appearing in it.
When Cho met Robert that evening Robert had Peltier with him. Cho paid $10.00 to Peltier for ten cigarettes and the three drove in a car for some blocks and then stopped. Peltier left the car and disappeared. Returning, he handed Cho the cigarettes. The United States contends that though Richard never heard of Peltier, he nevertheless "knowingly" aided and abetted Peltier in becoming a "transferee" acquiring the cigarettes.
Even assuming this contention be correct, it is obvious that to sustain its burden of proof the United States must show that Peltier became a transferee and acquired the cigarettes after 3 P.M. of September 30, 1954, when Richard first acted in the transaction of this there is no evidence.
When Peltier left the car he well may have gone to obtain the cigarettes from where he kept a supply of them which he had acquired a long time before 3 P.M., September 30, 1954, Peltier's confession being that he acquired them "on or about" that day. The phrase "on or about" a date stated in the indictment as fixing the time of the crime, is held by the Second Circuit to be within a few weeks of the "on or about" date. United States v. Tramaglino, 2 Cir., 197 F.2d 928, certiorari denied 1952, 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670. In the Third Circuit proof of a felonious sale of liquor on March 4th or 5th was held sufficient on an indictment charging it to have occurred "on or about the 11th day of March, 1921". Thompson v. United States, 3 Cir., 1922, 283 F. 895, 896. The Supreme Court, in Ledbetter v. United States, 170 U.S. 606, at page 612, 18 S.Ct. 774, at page 776, 42 L.Ed. 1162, stated:
"Neither is it necessary to prove that the offense was committed upon the day alleged, unless a particular day be made material by the statute creating the offense. Ordinarily, proof of any day before the finding of the indictment, and within the statute of limitations, will be sufficient."
It is significant that the United States did not produce Peltier as a witness, he having plead guilty and hence his testimony as to when he acquired the cigarettes could not incriminate him. A witness available to the prosecution to maintain its burden of proof which it does not produce or explain why it cannot, is presumed one who would testify against the Government. See Wigmore on Evidence, §§ 286-90.
The judgment is reversed.