King v. United States
| Decision Date | 25 March 1929 |
| Docket Number | No. 5650.,5650. |
| Citation | 31 F.2d 17 |
| Parties | KING v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Soren X. Christensen and Leon J. Dugan, both of San Francisco, Cal., for appellant.
Geo. J. Hatfield, U. S. Atty., and George M. Naus and Joseph L. Sweeney, Asst. U. S. Attys., all of San Francisco, Cal.
Before RUDKIN and DIETRICH, Circuit Judges, and BEAN, District Judge.
This is an appeal to review a judgment of conviction for sending, shipping, and delivering a quantity of morphine from the state of California to a person in the state of Nevada without having registered and paid the special tax required by law. At the July term, 1928, of the District Court of the United States for the Northern District of California, Southern Division, an indictment was returned, charging the appellant with selling and distributing a quantity of morphine not in or from the original stamped package. To this indictment the appellant interposed a plea of guilty, and sentence was passed and executed. Later during the same term the grand jury returned a second indictment, charging the appellant with sending, shipping, and delivering a quantity of morphine from the state of California to a person in the state of Nevada without having registered and paid the special tax required by law. The first indictment was returned under a provision of the Narcotic Act declaring that it shall be unlawful for any person to purchase, sell, dispense or distribute certain drugs, except in the original stamped package or from the original stamped package. 26 USCA § 692. The second indictment was returned under another provision of the Narcotic Act declaring that it shall be unlawful for any person, who shall not have registered and paid the special tax required by law, to send, ship, carry, or deliver certain drugs from any state to any person in any other state. Id. § 699. Upon arraignment under the second indictment, the appellant interposed a plea of former conviction, and the sufficiency of the plea is the only question presented for consideration.
The facts upon which the plea of former conviction was based are as follows: A narcotic agent in the employ of the government, together with an informant, went to Reno, Nev., where the informant, at the instance of the narcotic agent, wrote a letter to the appellant, in San Francisco, requesting him to send to the informant, at Reno, one ounce of morphine. The appellant replied that he would procure the morphine, and advised the informant that the price would be $55. Thereupon the informant sent to the appellant a postal money order for $55, which was received and cashed by the appellant. Thereafter the appellant caused to be shipped by way of American Express from San Francisco to Reno, addressed to the informant, a package containing one ounce of morphine. The appellant had not registered or paid the special tax required by law, and the package of morphine thus shipped was the package referred to and described in the first indictment, to which the appellant had pleaded guilty and was sentenced by another judge.
It will be observed at a glance that the offenses charged in the two indictments are not the same in law, and that the evidence required to support the first indictment would not support the second, inasmuch as there may be a sale of narcotics without a shipment in interstate commerce and there may be a shipment in interstate commerce without a sale. For these reasons we think a reference to recent decisions of the Supreme Court will clearly demonstrate that the plea of former conviction was insufficient in law. That court has repeatedly approved the views expressed by Judge Gray in Morey v. Commonwealth, 108 Mass. 433:
Carter v. McClaughry, 183 U. S. 367, 22 S. Ct. 181, 46 L. Ed. 236; Burton v. United States, 202 U. S. 344, 26 S. Ct....
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Ross v. United States, 8856.
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