276 U.S. 413 (1928), 500, Casey v. United States

Docket NºNo. 500
Citation276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632
Party NameCasey v. United States
Case DateApril 09, 1928
CourtUnited States Supreme Court

Page 413

276 U.S. 413 (1928)

48 S.Ct. 373, 72 L.Ed. 632



United States

No. 500

United States Supreme Court

April 9, 1928

Argued January 11, 1928




1. Where evidence in a criminal trial tends to prove inferentially that the offence was within the venue, and supplementary evidence on that point might be produced if attention were called to it, objection that the venue has not been established should be made specifically, and not rested upon a general request to direct a verdict for want of sufficient evidence. P. 417.

2. Section 1 of the Anti-Narcotic Act, in providing that absence of the required stamps from any of the drugs shall be prima facie evidence of a violation of the section by the person in whose possession such drugs are found, is merely a regulation of the burden of proof. P. 418.

3. This provision is constitutional as applied to a person charged with unlawful purchase of morphine who possessed the drug under circumstances warranting suspicion. P. 418.

4. Upon the evidence in this case, the court, acting on its own motion, would not be justified in deciding that the government induced the crime. P. 418.

5. The amended Anti-Narcotic Act, as applied to this case, is within the power of Congress. P. 420.

20 F.2d 752 affirmed in part.

Certiorari, 275 U.S. 517, to a judgment of the circuit court of appeals affirming a conviction under the Anti-Narcotic Act. The affirmance here is on the first count of the indictment, charging unlawful purchase. The second count, charging sales, was also upheld below, but in this Court was conceded to be bad by the government.

Page 416

HOLMES, J., lead opinion

MR. JUSTICE HOLMES delivered the opinion of the Court.

The petitioner, Casey, was convicted upon two counts of an indictment, the first of which charged him with the purchase of three and four-tenths grains of morphine not in or from the original stamped package at Seattle, within the jurisdiction of the Court. The conviction was sustained by the circuit court of appeals. 20 F.2d 752. A writ of certiorari was granted by this Court.

Here, the second count was admitted by the government to be bad, so that the only matter to be considered is whether the conviction can be sustained upon the first. It is argued that the evidence is not enough. Casey had practiced law in Seattle for many years, had been in the habit of visiting King County jail, and had defended prisoners addicted to the use of narcotics. There was evidence tending to show that, on different occasions, he had promised to furnish them with opiates, and that, in pursuance

Page 417

of such promises and for pay received by him, he had given or sent to them preparations of morphine, concealed, it was said, by soaking towels or the like in a solution of the drug. If this evidence was believed, it showed that Casey was in possession or control of what he sent, and it safely may be inferred that he did not proclaim his illegal purpose by putting stamps upon the towels. But the charge is a purchase, not a sale. There was no testimony directly concerning the purchase, and the government relies, in part, at least, upon the presumption of a violation of § 1 of the Act of December 17, 1914, c. 1, as amended by the Act of February 24, 1919, c. 18, § 1006; 40 Stat. 1057, 1130, 1131, that that section purports to create. U.S.C. Title 26, § 692.

[48 S.Ct. 374] The amended section makes the purchase, sale, etc., of opium and derivatives unlawful except in or from the original stamped package, and the absence of the required stamps from any of the said drugs "shall be prima facie evidence of a violation of this section by the person in whose possession same may be found." For the petitioner, it was argued that the presumption thus created does not, and, consistently, with the Sixth Amendment to the Constitution, cannot extend so far as to show a purchase within the district, and thus to bring the case within the jurisdiction of the trial court. The circuit court of appeals answered that the objection to the venue was not raised specifically below. The court was asked to direct a verdict for the defendant on the ground that the evidence was not sufficient, and elsewhere it has been held that such a request is enough to save the question, and that a presumption extended to the place of purchase could not be upheld. Brightman v. United States, 7 F.2d 532; Cain v. United States, 12 F.2d 580; Hood v. United States, 14 F.2d 925; De Moss v. United States, 14 F.2d 1021. But we are of opinion that, upon

Page 418

the facts of this case, the court was right. If the jury believed that the defendant, long established in Seattle, said that he has not the drug, but would, and shortly thereafter did, furnish it, the inference that he bought it in Seattle is strong, and it is reasonable to suppose that, if attention had been called to the point, the inference could have been made stronger still. But the effort of the defense did not stop at this detail, but was to show that Casey had nothing to do with the business, and was wholly innocent of the offense charged.

With regard to the presumption of the purchase of a thing manifestly not produced by the possessor, there is a "rational connection between the fact proved and the ultimate fact presumed." Luria v. United States, 231 U.S. 9, 25; Yee Hem v. United States, 268 U.S. 178, 183. Furthermore, there are presumptions that are not evidence in a proper sense, but simply regulations of the burden of proof. Greer v. United States, 245 U.S. 559. The statute here talks of prima facie evidence, but it means only that the burden shall be upon the party found in possession to explain and justify it when accused of the crime that the statute creates. 4 Wigmore, Evidence, § 2494. It is consistent with all the constitutional protections of accused men to throw on them the burden of proving facts peculiarly within their knowledge and hidden from discovery by the government. 4 Wigmore, Evidence, § 2486. In dealing with a poison not commonly used except upon a doctor's prescription easily proved, or for a debauch only possible by a breach of law, it seems reasonable to call on a person possessing it in a form that warrants suspicion to show that he obtained it in a mode permitted by the law. The petitioner cannot complain of the statute except as it affects him.

We do not feel at liberty to accept the suggestion that the government induced the crime. A court rarely can

Page 419

act with advantage of its own motion, and very rarely can be justified in giving judgment upon grounds that the record was not intended to present. Upon this record, it was testified, and might have been found for the government, that, after Casey's visits, addicts were noticed by the jailers to be under the influence of narcotics, and that, on a previous occasion, Casey, for money, had got morphine at the request of Cicero, the supposed stool pigeon. It does not appear expressly that this last was told to the jailer before the supposed plot to entrap Casey, but, in view of the relation between the parties, it was very likely, and, had the matter been in issue, very probably would have been proved. We do not think that we are entitled to assume the contrary. If known to the jailers, there was very probable cause to believe Casey an habitual practitioner. His own language when he was on guard, admitting that he frequently had promised the drug to prisoners, the testimony as to what was said in his presence (to the effect that he was the man who supplied the boys with narcotics when they wanted it) and his language importing habit (as that he hadn't a thing with him today) all tend to the same conclusion. We hardly can assume that the jailers did not know the facts in order to convict them of a gross wrong when we keep in mind that the case was tried and the record made up without this in mind. Furthermore Casey, according to the story, was in no way induced to commit the crime beyond the simple request of Cicero, to which he seems to have acceded without hesitation and as a matter of course. According to the evidence, he seems to have promised morphine to Nelson, who does not appear to have been in the supposed plot. We are not persuaded that the conduct of the officials was different from or worse than ordering a drink of a suspected bootlegger. Whatever doubts we may feel as to the truth of the testimony, we are not at liberty to consider them on the only question

Page 420

before the Court. The grounds for uneasiness can be considered only by another power.

The statute is much more obviously a revenue measure now than when United States v. Doremus, 249 U.S. 86, was decided, and is said to produce a considerable return. Alston v. United States, 274 U.S. 289, 294. It is too late to attempt to overthrow the whole act on Child Labor Tax Case, 259 U.S. 20. It is said also that no opium is produced in the United [48 S.Ct. 375] States, and at all events the statute has been so modified that now, at least, United States v. Jin Fuey Moy, 241 U.S. 394, does not apply to this case. United States v. Wong Sing, 260 U.S. 18, 21. We pass, as not needing discussion, some minor points.

Judgment upon the first count affirmed.

MCREYNOLDS, J., dissenting


I accept the views stated by MR. JUSTICE BUTLER. With clarity, he points out the unreasonableness of the construction of the statute advocated by counsel for the United States. But I go further.

The provision under which we are told that one may be presumed unlawfully to have purchased an unstamped package of morphine within the district where he is found in possession of it conflicts with those constitutional guaranties heretofore supposed to protect all against arbitrary conviction and punishment. The suggested rational connection between the fact...

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