Martinez v. United States
Opinion of the Court
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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 He 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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