Wong Lung Sing v. United States
| Decision Date | 02 February 1925 |
| Docket Number | No. 4363.,4363. |
| Parties | WONG LUNG SING v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
M. H. Hernan and R. B. McMillan, both of San Francisco, Cal., for plaintiff in error.
Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
Wong Lung Sing and another man were charged with violation of the statutes relating to narcotic drugs. Wong Lung Sing was the only one tried, and after conviction he sued out writ of error.
The first count charges that Wong Lung Sing and the other man unlawfully, feloniously, and fraudulently did receive, conceal, buy, sell, and facilitate the transportation and concealment of, after importation, certain opium, to wit, 55 cans of prepared smoking opium, containing 324 ounces, 15 grains, and one bindle of yen shee, containing 10 grains, which said prepared opium and yen shee defendant then and there well knew had been imported into the United States contrary to law. Act Feb. 9, 1909. The second count, after formal allegations charging both defendants with violating a requirement of the act of February 24, 1919, alleged that "said defendant did then and there knowingly, willfully, unlawfully, and feloniously purchase, sell, dispose, and distribute a certain quantity of opium, to wit, 55 cans of prepared smoking opium, containing 324 ounces, 15 grains, and a certain derivative of opium, to wit, one bindle of yen shee, containing 10 grains, which said smoking opium and yen shee was not then and there in nor from the original stamped packages."
The first point urged is that the indictment fails to charge a crime, and that no facts are alleged which show that the opium was imported into the United States contrary to law. The act of Congress of February 9, 1909 (35 Stat. 614), as amended January 17, 1914 (38 Stat. 275), amended May 26, 1922 (42 Stat. 596), known as the Narcotic Drugs Import and Export Act, in subdivision (c), section 2 (Comp. St. Ann. Supp. 1923, § 8801), provides that, "if any person fraudulently or knowingly * * * imports * * * any narcotic drug into the United States * * * contrary to law, or assists in so doing, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, such person shall upon conviction be fined not more than $5,000 and imprisoned for not more than ten years." Following the allegations of feloniously receiving after importation is the description of the drugs. Then comes the averment that the defendants received the described prepared smoking opium, then and there well knowing that it had been imported contrary to law.
We are of opinion that the charge is sufficient, both as to illegal importation and knowledge of illegal importation. Kech v. United States, 172 U. S. 434, 19 S. Ct. 254, 43 L. Ed. 505, is to be distinguished. In that case the indictment used the generic expression, "import or bring into the United States" diamonds, contrary to law. It was held that the expression "import and bring into the United States" was vague, and did not convey the necessary information to defendant, because importing merchandise is not per se contrary to law, and could only become so when done in violation of specific statutory requirements, whereas the present statutes absolutely prohibit the importation of opium for smoking purposes. 38 Stat. 275, Act January 17, 1914.
It is said that there is uncertainty in the second count, in that it charges that "defendant" did the things alleged, whereas two defendants were indicted; also that that count fails to allege that defendant was one of the persons required to register under the provisions of the Harrison Narcotic Act (42 Stat. 298). The second count is drawn under the provisions of a clause in section 1 of the act of December 17, 1914, as amended February...
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