Baender v. United States

• Decision Date: 06 October 1919
• Docket Number: 3285.
• Parties: BAENDER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

260 F. 832

BAENDER v. UNITED STATES.

No. 3285.

United States Court of Appeals, Ninth Circuit.

October 6, 1919

Rehearing Denied December 1, 1919.

Charles L. Baender, of Oakland, Cal., and Nathan C. Coghlan, of San Francisco, Cal., for plaintiff in error.

Annette Abbott Adams, U.S. Atty., of San Francisco, Cal.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff in error pleaded guilty and was sentenced upon an indictment which charged that at a date and place named he did then and there unlawfully, willfully, knowingly, and feloniously and without lawful authority have in his possession six complete steel dies, each of which was then and there in the likeness and similitude as to the design and the inscription thereon of a die designated for the coining and making of the genuine Indian head design gold coins of the United States, that had theretofore and are now coined at the mints of the United States, and known as and called $5 pieces or half eagles. The plaintiff in error by writ of error seeks to review the judgment, and he contends that the judgment is void for the reason that the indictment fails to allege an offense against the United States, in that it contains no averment that the plaintiff in error had possession of the dies with the intent to defraud, or to use the same in making counterfeit coins. The statute under which the indictment is brought is Act March 4, 1909, c. 321, Sec 169, 35 Stat. 1120 (Comp. St. Sec. 10339), which provides that:

'Whoever without lawful authority, shall have in his possession any such die, hub or mold, or any part thereof, or shall permit the same to be used for or in aid of the counterfeiting of any of the coins of the United States hereinbefore mentioned shall be fined,' etc.

Act Feb. 10, 1891, c. 127, Sec. 1, 26 Stat. 742, which was in force prior to the enactment of the act of 1909, had denounced as unlawful the possession of the prohibited dies, etc., with intent to fraudulently or unlawfully use the same. In amending the law by the later act, the report of the committee on revision shows that the words 'with intent to fraudulently use the same' were 'intentionally dropped from the statute'; the committee believing that a person who has in his possession dies which may be used for counterfeiting any coin shall be required to show that his possession is lawful, and that the government should not be required to prove that he has them in his possession with the intent to use them fraudulently and unlawfully for counterfeiting. Congress evidently intended that the unlawful possession of such dies should be sufficient evidence to warrant a conviction, unless the accused could explain the possession to the satisfaction of the jury.

The statute here involved has analogy to Act Jan. 17, 1914, c. 9 38 Stat. 275, amending Act Feb. 9, 1909, c. 100, 35 Stat. 614 (Comp. St. 1918, Secs. 8800-8801f), and providing that possession of imported opium shall be deemed sufficient evidence to warrant conviction, unless the defendant shall explain the possession to the satisfaction of the jury. Under that statute convictions have been sustained on proof of possession; the courts ruling that the statute provides for a presumption of prima facie proof of the offense which, while sufficient to sustain a verdict of guilt, may or may not be sufficient to satisfy the jury of the guilt of the accused, applying the doctrine of Luria v. United States, 231 U.S. 9, 34 Sup.Ct. 10, 58 L.Ed. 101, where it was held that the establishment of a presumption from certain facts prescribes a rule of evidence, and not one of substantive right, and that if the inference is reasonable, and opportunity is given to controvert the presumption, it is not a denial of due process of law. United States v. Yee Fing (D.C.) 222 F. 154; United...