Anderson v. United States, 11280.

• Citation: 189 F.2d 202
• Decision Date: 21 May 1951
• Docket Number: No. 11280.,11280.
• Parties: ANDERSON v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

189 F.2d 202 (1951)

ANDERSON v. UNITED STATES.

No. 11280.

United States Court of Appeals Sixth Circuit.

May 21, 1951.

John J. Chester, Columbus, Ohio, John J. Chester, Columbus, Ohio, on brief for appellant.

Loren G. Windom, Columbus, Ohio, R. J. O'Donnell, Loren G. Windom, Columbus, Ohio, on brief for appellee.

Before HICKS, Chief Judge, and SIMONS and ALLEN, Circuit Judges.

ALLEN, Circuit Judge.

Appellant was convicted by a jury of having violated § 2553(a), 26 U.S.C., which reads as follows: "It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the drugs mentioned in section 2550(a) except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession same may be found; and the possession of any original stamped package containing any of the aforesaid drugs by any person who has not registered and paid special taxes as required by sections 3221 and 3220 shall be prima facie evidence of liability to such special tax."

The indictment contained four counts.¹ The District Court sentenced appellant to the maximum term of five years on each count, the sentences to run concurrently.

Substantial evidence to the following effect was presented: On November 28, 1949, a drugstore in the city of Columbus, Southern District of Ohio, Eastern Division, was burglarized. Among other things a large quantity of narcotics, including a bottle of Dover's powder, was stolen. On December 11, 1949, at about 2:45 A.M., appellant was traveling from Columbus to Cincinnati in an automobile which belonged to James Long and was driven by Burley Tennihill, a friend of appellant. An automobile ran into the car in the city of Wilmington, Ohio. Tennihill stated to the police that he was James Long, but upon being asked for his driver's license, he produced one issued in the name of Burley Tennihill, and thereupon he and appellant were arrested and incarcerated in jail. The next morning the chief of police, acting upon information, found three unbroken bottles of narcotics and one broken bottle containing a white powder behind a billboard some 25 feet from the scene of the accident. The next day the automobile was searched and a bottle of Dover's powder was found under the front seat. Analysis of the contents of the various bottles revealed that they were narcotics of the same type as some of those stolen from the Columbus drugstore. The number of grains in the bottle of Dover's powder tallied almost exactly with the contents of the bottle of Dover's powder taken from the drugstore. Three witnesses testified that later appellant made an oral statement admitting that he had obtained the narcotics from one Fred Grambo, who was suspected of having robbed the drugstore, and that on the occasion of the accident in Wilmington appellant was taking the narcotics to Cincinnati to dispose of them. At the trial appellant denied making any such statement and denied having possession of the narcotics. He said he was going to Cincinnati in order to secure a job.

Appellant contends that a transaction in which four bottles of narcotics are obtained in the same place and at the same time can not be the basis for a valid indictment in four counts charging the purchase of narcotics in violation of the statute. He urges that an indictment which separates the charge into four counts is clearly invalid because only one offense is shown. The possession, he claims, was all part of one transaction Cf. Parmagini v. United States, 9 Cir., 42 F.2d 721 identical proof being required to establish all four counts of the indictment. Cf. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.

We are impressed with the similarity between the instant case and that presented in Braden v. United States, 8 Cir., 270 F. 441, 444, in which the court held that it was improper to base a separate count upon each drug found at the same time and place in the possession of the defendant. As the court aptly said, if twelve articles of merchandise were taken from a store "at the same time and place, we do not think it would be competent to charge the thief with twelve different larcenies."

The gist of the offense here is the unlawful purchase or disposition of narcotics. There is no claim that separate provisions of the statute have been violated nor is it the intent of the statute to make it an offense to purchase each single container as in the similar case where the statute prohibits abstraction of mail from a depository with the clear intent to make each separate abstraction a crime. Cf. Tesciona v. Hunter, 10 Cir., 151 F.2d 589. Whether appellant purchased the drugs of Grambo or received them as Grambo's agent, the jury found upon substantial evidence that all of the narcotics were received at the same time and in the same place, and were handled by appellant in exactly the same way. With the exception of the variation as to the particular type of drug contained in the various bottles the facts are identical. It is not possible to separate the treatment of the different bottles into transactions, each of which constitutes a completed offense. Cf. Robinson v. United States, 10 Cir., 143 F.2d 276. In making four out of one offense the indictment is unduly split and multiplied, Alabama Packing Co. v. United States, 5 Cir., 167 F.2d 179; Johnston v. Lagomarsino, 9 Cir., 88 F.2d 86, and if timely objection to the indictment had been made, it should have been quashed. However, no objection to the indictment was raised until the hearing in this court. The objection now made does not attack the court's jurisdiction nor assert that the indictment does not charge an offense. It should have been made by motion before trial. Rule 12(b) (2), Federal Rules of Criminal Procedure, 18 U.S.C.A. Because of failure to...