McIntosh v. United States

• Decision Date: 18 September 1924
• Docket Number: No. 3324.,3324.
• Citation: 1 F.2d 427
• Parties: McINTOSH v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

1 F.2d 427 (1924)

McINTOSH v. UNITED STATES.

No. 3324.

Circuit Court of Appeals, Seventh Circuit.

July 17, 1924.

Petition for Rehearing Overruled September 18, 1924.

Frans E. Lindquist, of Kansas City, Mo., L. E. Stone, of Springfield, Ill., and J. B. Boddie, of Chicago, Ill., for plaintiff in error.

Thos. Williamson, U. S. Atty., of Springfield, Ill., Wm. B. Schroder, Asst. U. S. Atty., of Rock Island, Ill., and Thomas F. Smith, Asst. U. S. Atty., of Springfield, Ill.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

Plaintiff in error, here called defendant, asks reversal of a judgment of conviction under an indictment containing 12 counts, of which count 5 and counts 7 to 12 were nollied upon the trial. Upon counts 3 and 4 defendant was found not guilty, and was convicted on counts 1, 2, and 6.

1. Count 6 charged defendant to be a person "dealing in a certain derivative of opium, to wit, morphine sulphate, and dealing in a certain derivative of coca leaves, to wit, cocaine hydrochloride," and that he did "unlawfully, willfully, and feloniously carry from one state, to wit, from the city of Bloomington, in the state of Illinois, to Robert D. Brown, in another state, to wit, the city of South Bend, in the state of Indiana, certain quantities of certain drugs, to wit, derivatives and preparations of opium, that is to say, one ounce of morphine sulphate, and a derivative and preparation of coca leaves, that is to say, one-half ounce of cocaine hydrochloride." The violation, it is charged, was committed on March 7, 1922. The indictment charged defendant, under a videlicet, with dealing in morphine sulphate; the proof showed a dealing in morphine hydrochloride. The statutory provision (Comp. St. § 6287g) is: "It shall be unlawful for any person required to register under the terms of this act to * * * deal in, * * * sell, * * * any of the aforesaid drugs without having registered and paid the special tax provided for in this section." The "aforesaid drugs" described in the act are "opium or coca leaves or any compound, manufacture, salt, derivative, or preparation thereof."

The gist of the offense charged in the sixth count is dealing in and transporting a derivative of opium. Morphine is a derivative of opium and morphine hydrochloride and morphine sulphate are subdivisions of morphine. In their physical properties there is only a slight difference in the crystal construction between morphine hydrochloride and morphine sulphate, and there is no difference in their therapeutical or medicinal properties. While by making averment of a material fact under a videlicet one may not escape the necessity of proving the charge, yet it is notice that the pleader does not undertake to prove the charge so alleged as laid.

In Guilbeau v. United States, 288 Fed. 731 (5th C. C. A.), where the charge was of an unlawful sale of certain derivatives and salts of opium, to wit, four grains of morphine sulphate, the evidence showed the sale of morphine hydrochloride. There, as here, the allegation of the specific kind was under a videlicet. A majority of the court held that the variance was fatal. Mr. Justice Walker, in a dissenting opinion, held that the variance was immaterial, citing numerous cases, including Westmoreland v. United States, 155 U. S. 545, 15 Sup. Ct. 243, 39 L. Ed. 255. There the charge was that the defendant administered to deceased strychnine and other poisons with the unlawful and felonious intent to take his life. The court said: "It was murder if he unlawfully and feloniously administered any poison with the design of taking life, and that which he so administered did produce death. At the common law, though it was necessary to allege the kind of poison administered, nevertheless proof of the use of a different kind of poison was regarded as an immaterial variance. `If A. be indicted for poisoning of B., it must allege the kind of poison; but if he poisoned B. with another kind of poisoning, yet it maintains the indictment, for the kind of death is the same.' 2 Hale, P. C. 185; 2 Bishop, Crim. Pro. §§ 514 and 555."

In Hoke v. United States, 227 U. S. 308, 324, 33 Sup. Ct. 281, 284 (57 L. Ed. 523, 43 L. R. A. N. S. 906, Ann. Cas. 1913E, 905), the court said: "The indictment charges that women were transported over the Texas & New Orleans Railroad Company's road and that the government failed to prove that such road was a line extending from New Orleans to Beaumont, Tex., these places marking the beginning and end of the transportation of the women. Further, the proof showed that their tickets were purchased over the Southern Pacific Road. The indictment alleges that the Texas & New Orleans Railroad was a part of the Southern Pacific System, and was commonly known as the `Sunset Route,' and there was through transportation. The variance is not much more than verbal, and that it prejudiced their defense in any way is not shown. If it is error at all, it does not appear to have caused even embarrassment to the defense. But was it error? See Westmoreland v. United States, 155 U. S. 545, 549; also section 1025, R. S. * * * Judgment affirmed."

In Bennett v. United States, 227 U. S. 333, 338, 33 Sup. Ct. 288, 289 (57 L. Ed. 531) where the charge was transportation of Opal Clarke, the testimony showed that her correct name was Jeanette, but she had gone by the name of Opal and Nellie; her real name, however, being Jeanette Laplante. The court said: "The essential thing in the requirement of correspondence between the allegation of the name of the woman transported and the proof is that the record be in such shape as to inform the defendant of the charge against her and to protect her against another prosecution for the same offense. The record is sufficient for both purposes."

There is no suggestion that the defendant was embarrassed in any way by the alleged variance. The offense under the law was the same, whether defendant sold morphine sulphate or morphine hydrochloride.

2. To alleged errors in the admission of evidence of witness Penn there were no objections when the evidence was offered, and it is too late to raise them here.

There is also assigned error on the ruling on objections to testimony given by the witness Sandusky. To that part of the testimony to which our attention is called there were two objections, each made after the answer had been given. Counsel for the government stated...