Clarence J. Daniels v. United States

This is an appeal from a judgment of conviction on two counts of an indictment. Each count charged a violation on different days of 26 U.S.C. § 4742 (a) in that appellant did knowingly and wilfully transfer marihuana to a San Francisco police officer, “not pursuant to a written order from the officer on a form issued in blank for that purpose by the Secretary of Treasury or his delegate, as required by the laws of the United States.”

The appellant raises two contentions on appeal,

(1) that we consider as plain error the giving of erroneous instructions on the “possession — presumption” problem which were not objected to in the trial court; and

(2) that there was a failure of proof as to count II, in that there was no proof that the police officer did not produce and hand to appellant the order form for the marihuana sold, referred to in the statute.

The court correctly instructed the jury as to the charge in each count, and the statute alleged to have been violated.

Probably because of the press of business, the court inadvertently then gave two instructions presented by'the United States attorney, which were not applicable to the charge in the indictment, but rather to a…