164 F.2d 601 (9th Cir. 1947), 11619, Pitta v. United States

Docket Nº:11619.
Citation:164 F.2d 601
Party Name:PITTA v. UNITED States.
Case Date:December 03, 1947
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 601

164 F.2d 601 (9th Cir. 1947)



UNITED States.

No. 11619.

United States Court of Appeals, Ninth Circuit.

December 3, 1947

Page 602

James B. O'Connor, of San Francisco, Cal., for appellant.

Frank J. Hennessy, U.S. Atty., and James T. Davis, Asst. U.S. Atty., both of San Francisco, Cal., for appellee.

Before GARRECHT, HEALY, and BONE, Circuit Judges.

HEALY, Circuit Judge.

Appellant was convicted of a violation of the Jones-Miller Act, Sec. 2, 21 U.S.C.A. § 174. The indictment charged that he and one Bruno fraudulently and knowingly concealed and facilitated the concealment of a quantity of a morphine derivative, namely one bindle containing a dram of heroin, which had been imported into the United States contrary to law, as the accused well knew.

The evidence for the government was that on a certain evening a federal narcotics agent entered the storeroom at the rear of a saloon and removed from between some beer cases a paper containing the heroin in question. After taking a sample of the contents the agent refolded the paper and returned it to its place of concealment. Later that evening the agents observed appellant and Bruno enter the storeroom. Bruno locked the door and proceeded to remove the paper of heroin from between the beer cases. After opening it and sniffing some of the contents he passed the paper to appellant who took some of the substance and inhaled it. Appellant then refolded the paper and returned it to Bruno, who restored it to its hiding place.

The argument for reversal involves the familiar provision of the Jones-Miller Act to the effect that 'whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.' Appellant does not question the validity of this provision. His argument is merely that the evidence does not support the view that he had possession of the heroin, hence the statutory presumption did not come into play in his case. Accordingly, he says, there was no showing that he concealed or facilitated the concealment of the narcotic as charged in the indictment.

Appellant was shown, certainly, to have had possession of the narcotic for an illegal purpose, namely, for use. We think that possession for use does not differ, in legal effect, from...

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