1 F.2d 427 (7th Cir. 1924), 3324, McIntosh v. United States

Docket Nº:3324.
Citation:1 F.2d 427
Case Date:July 17, 1924
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 427

1 F.2d 427 (7th Cir. 1924)




No. 3324.

United States 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.

         Those. 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

Page 428

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. Sec. 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 subdivision 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 F. 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...

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