Casey v. United States

• Decision Date: 01 August 1927
• Docket Number: No. 5104.,5104.
• Citation: 20 F.2d 752
• Parties: CASEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

20 F.2d 752 (1927)

CASEY v. UNITED STATES.

No. 5104.

Circuit Court of Appeals, Ninth Circuit.

June 27, 1927.

Rehearing Denied August 1, 1927.

John T. Casey, of Seattle, Wash., and William F. Herron, of San Francisco, Cal., for plaintiff in error.

Thos. P. Revelle, U. S. Atty., and Paul D. Coles and Anthony Savage, Asst. U. S. Attys., all of Seattle, Wash.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

Defendant (plaintiff in error) was adjudged guilty upon both counts of an indictment charging him (1) with the purchase of 3.4 grains morphine not in the original stamped package; and (2) with having dispensed morphine without having registered or paid the special tax as required by law, venue of both charges, Seattle, Wash., and time of both, December 31, 1925. The sentences were the same on both counts, the terms of imprisonment to run concurrently.

The sufficiency of the first count is not seriously challenged. One of the clauses is grammatically misplaced, but the meaning is so obvious that to quash upon that ground would be a pure legalism. The question of the constitutionality of the Harrison Narcotic Act is raised only for procedural purposes, and properly counsel refrain from urging reconsideration of it here.

Count II is assailed as "purely a blanket charge." It sets forth that on December 31, 1925, at the city of Seattle, defendant, without having registered or paid the special tax as required and imposed by law, did knowingly and feloniously "manufacture, produce, compound, sell, deal in, dispense, distribute, administer, and give away morphine." There is no averment of the amount of the drug or of the persons to whom it was dispensed.

While we are unable to approve the practice of including in a charge all the acts denounced by the statute, where it is known the evidence will have no tendency to support some of them, it is well settled that such a form of pleading is not fatally defective. Here there probably never was any thought of attempting to prove that defendant manufactured or produced or compounded, but we are unable to see how the inclusion of these terms was prejudicial. In one aspect, the failure to allege the amount of the drug or the identity of the persons to whom dispensed would seem to be more serious. But, as bearing upon both the charge and certain evidence, to which defendant objected, adduced in support thereof, it is to be borne in mind that the offense denounced by the statute may be and often is evidenced, not by a single act, but by a series of acts of the same character. To prove that a defendant is dealing in, dispensing, or distributing morphine, the government may show few or many transactions in which he has sold or furnished the drug. In such a case it might be impracticable, and certainly not necessary, to plead the details of such transactions, for after all they are but evidence of the ultimate fact to be found.

In no way did the defendant here challenge the indictment until after verdict, and as against a motion in arrest of judgment it is plainly invulnerable. Had he complained before trial that, in view of the generality of the charge he could not intelligently or safely prepare his defense, it is to be presumed that upon seasonable application the court would have ordered a reasonably certain bill of particulars. See Stubbs v. United States (C. C. A.) 1 F.(2d) 837, where we affirmed a judgment upon a similar charge, a bill of particulars having been sought and secured.

Defendant relies mainly upon Miller v. United States (C. C. A.) 288 F. 816, and Johnson v. United States (C. C. A.) 294 F. 753, the latter decided by this court. In both cases the indictment was assailed by demurrer, for uncertainty as well as insufficiency. In the former the first ground was sustained, but the second apparently overruled. In the Johnson Case the charge was not the same as here and presented somewhat different considerations.

As to the point that there is no express averment that defendant was a person of whom registration and payment of tax is required, the necessary implication of the allegations is that he was within such class. We so held in Bacigalupi v. United States (C. C. A.) 274 F. 367. Upon the second count the evidence, though conflicting, is ample to support the verdict.

As to the first count, to establish the charge of purchase the government relied upon evidence of possession by the defendant of the drug not in the original stamped package, together with the declaration of the statute (Comp. St. Supp. 1925, § 6287g) that "the absence of appropriate tax-paid stamps * * * shall be prima facie evidence of a violation of this section by the person in whose possession same may be found." There was no other evidence of the place of purchase, and arguing that the statutory presumption does not extend to venue, defendant contends the proof was vitally defective. Considering a similar charge in the case of Ng Sing et al. v. United...