VAN VALKENBURGH, Circuit Judge.
Plaintiff in error was indicted at the 1926 term of the District Court of the United States for the District of Oklahoma, upon four counts. The first two counts were withdrawn from the consideration of the jury. Conviction resulted upon the third and fourth counts. Upon the fourth count the defendant was sentenced to imprisonment for five years in the federal penitentiary at Leavenworth, Kansas, and adjudged to pay a fine of $100. The sentence upon the third count was for a like imprisonment, to run concurrently with that imposed upon count 4. At the hearing counsel for the government properly conceded error as to the third count, under the authority of Smith v. United States (C. C. A. 8) 17 F.2d 723. It is necessary, therefore, to consider only the fourth count and the proceedings thereunder resulting in conviction. That count reads as follows:
"And the grand jurors aforesaid, upon their oaths aforesaid, in the name and by the authority of the United States of America, do further find, present, and charge that Ben Bowdry, whose more true, full, and correct name is to the grand jurors unknown, then and there being a dealer in morphine, which said morphine was then and there a salt, derivative, and preparation of opium, and then and there being a person who, under the law and rules and regulations prescribed and promulgated by the Commissioner of Internal Revenue, was required to register with the internal revenue collector of their district, as such dealer, and to pay the special tax provided therefor, did, on or about the 19th day of January, A. D. 1926, at a certain point located near Utica street and the Frisco Railroad tracks, Tulsa, Tulsa county, state of Oklahoma, in the Northern district of Oklahoma, and within the jurisdiction of this court, unlawfully, willfully, and feloniously, and with intent to defraud the United States of America, and in violation of section 2 of that Act of Congress of December 17, 1914, as amended by Act of Congress of 1918 and approved February, 1919, commonly known and designated as the Harrison Anti-Narcotic Act, illegally barter, exchange, dispense, and give away to Lillie Welborn and Bernice Caton 42 cubes of morphine, a more exact amount and better description of which is to the grand jurors unknown, which said 42 cubes of morphine was unstamped, and which barter or exchange of said morphine was not in pursuance of a written order of the said Lillie Welborn and Bernice Caton, and not within any of the exceptions or exemptions provided for in the sale, barter, and exchange of narcotics in the aforementioned act of Congress, and which sale, barter, and exchange of said morphine was prohibited and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America."
To this count plaintiff in error filed demurrer; also, demurrer to the evidence, motion for directed verdict at the close of the case, and motion in arrest of judgment.
The count is assailed as duplicitous. There is in it language describing the defendant therein named as a dealer in morphine, a derivative and preparation of opium, that the 42 cubes of morphine dispensed to the women named were unstamped, and that the barter and exchange of the drug were not in pursuance of a written order, nor within any of the exceptions or exemptions provided for in the act of Congress under which the indictment was brought.
It is alleged that Bowdry was a dealer and a person required by law to register and pay the special tax provided. Nowhere is it alleged that he did not register and did not pay the tax. While this is a matter of defense from the standpoint of proof, nevertheless the pleading must contain this necessary allegation. Furthermore, in the record there is no evidence that plaintiff in error was a dealer, as defined in the Anti-Narcotic Act (26 USCA §§ 211, 691-707; Comp. St. §§ 6287g-6287q). O'Neill v. United States (C. C. A. 8) 19 F.2d 322; Maupin et al.
"Since to constitute duplicity two or more offenses must be sufficiently described, additional allegations which merely tend to show the commission of distinct offenses, but are not sufficient in themselves to constitute a charge thereof, will not invalidate the indictment or information, the generally accepted rule being that they may be rejected as surplusage." Smith v. United States (C. C. A. 8) 17 F.2d 723; Davey v. United States (C. C. A. 7) 208 F. 237; United States v. Patty (D. C.) 2 F.2d 664-667; United States v. Sugar et al. (D. C.) 243 F. 423-426; Sugar v. United States (C. C. A. 6) 252 F. 79.
This leaves as the charge in the fourth count of the indictment the dispensing of the drug without the written order required by section 2 of the act. This charge was abundantly supported by the evidence. The demurrer to the indictment, to the evidence at the close of the case, and the motions for directed verdict and in arrest of judgment were properly overruled.
The other errors assigned merit but brief consideration. The constitutionality of the act generally, and specifically upon the provision prohibiting the sale, barter, exchange, or giving away of such drugs by any person whomsoever, except in pursuance of written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue, has now been finally settled. Frank Nigro v. United States, supra.
Error is assigned to the admission of the testimony of Lillie Welborn and Bernice Caton with reference to their coming from Oklahoma City to Tulsa with the defendant Ben Bowdry and one John Hood on the 4th of January, 1926, and to the opening statement and later argument of the United States attorney concerning that phase of the evidence. The only defense was an alibi; the testimony of the witnesses in support thereof tending to place Bowdry in Oklahoma City throughout the period within which the offense was charged to have been committed. The defendant himself did not take the stand. This testimony, to which error is assigned, was, therefore, competent and material in establishing the relationship between him and these witnesses to whom the drugs were dispensed, and to rebut the defense interposed. Government counsel, therefore, were justified in commenting upon that phase of the testimony.
The court in its charge called especial attention to the 19th day of January as the date on which the drug was dispensed, as charged in the fourth count of the indictment. He also said that any time between the 9th day of January and the time of the filing and returning of the indictment, which was on the 5th day of February, 1926, would be sufficient as to dates. Counsel urge that this operated to the prejudice of the defendant, in that his counsel, relying upon a previous ruling of the court, which, however, concerned transactions prior to January 19th, forbore to introduce testimony of defendant's whereabouts later than January 19th. The record discloses, however, that the defense was permitted to and did introduce testimony tending to show that Bowdry was in Oklahoma City, and not in Tulsa, as late as January 27th. The testimony definitely confined the commission of the offenses to January 19th, the specific date laid in the indictment. There was no evidence of the dispensation of the drugs at any later date. The jury, therefore, could not have been misled, and no possible prejudice resulted to the defendant in this respect.
Error is assigned to the refusal of the court to give certain requested instructions. The substance of the matter contained in these instructions was either given in the original charge or supplied upon exception taken. All errors assigned have been carefully considered, and we find in the record nothing to justify a reversal of this case.
The judgment upon the third count will be set aside in accordance with the concession of government counsel; that upon the fourth count should be and is affirmed.