Blockburger v. United States

• Decision Date: 04 January 1932
• Docket Number: No. 374,374
• Parties: BLOCKBURGER v. UNITED STATES
• Court: U.S. Supreme Court

284 U.S. 299

52 S.Ct. 180

76 L.Ed. 306

BLOCKBURGER

v UNITED STATES.

No. 374.

Argued and Submitted Nov. 24, 1931.

Decided Jan. 4, 1932.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Seventh Circuit.

Harry Blockburger was convicted of violating certain provisions of the Harrison Anti-Narcotic Act. To review a judgment of the Circuit Court of Appeals , affirming the judgment of conviction, the defendant brings certiorari.

Judgment affirmed.

Mr. Harold J. Bandy, of Granite City, Ill., for petitioner.

The Attorney General and Mr. Claude R. Branch, of Providence, R. I., for the United States.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

The petitioner was charged with violating provisions of the Harrison Narcotic Act, c. 1, § 1, 38 Stat. 785, as amended by c. 18, § 1006, 40 Stat. 1057, 1131 (U. S. C. Title 26, § 692 [26 USCA § 692]);¹ and c. 1, § 2, 38 Stat. 785, 786 (U. S. C., Title 26, § 696 [26 USCA § 696]).² The indictment contained five counts. The jury returned a verdict against petitioner upon the second, third, and fifth counts only. Each of these counts charged a sale of morphine hydrochloride to the same purchaser. The second count charged a sale on a specified day of ten grains of the drug not in or from the original stamped package; the third count charged a sale on the following day of eight grains of the drug not in or from the original stamped package; the fifth count charged the latter sale also as having been made not in pursuance of a written order of the purchaser as required by the statute. The court sentenced petitioner to five years' imprisonment and a fine of $2,000 upon each count, the terms of imprisonment to run consecutively; and this judgment was affirmed on appeal. (C. C. A.) 50 F.(2d) 795.

The principal contentions here made by petitioner are as follows: (1) That, upon the facts, the two sales charged in the second and third counts as having been made to the same person constitute a single offense; and (2) that the sale charged in the third count as having been made not from the original stamped package, and the same sale charged in the fifth count as having been made not in pursuance of a written order of the purchaser, constitute but one offense, for which only a single penalty lawfully may be imposed.

One. The sales charged in the second and third counts, although made to the same person, were distinct and separate sales made at different times. It appears from the evidence that, shortly after delivery of the drug which was the subject of the first sale, the purchaser paid for an additional quantity, which was delivered the next day. But the first sale had been consummated, and the payment for the additional drug, however closely following, was the initiation of a separate and distinct sale completed by its delivery.

The contention on behalf of petitioner is that these two sales, having been made to the same purchaser and following each other, with no substantial interval of time between the delivery of the drug in the first transaction and the payment for the second quantity sold, constitute a single continuing offense. The contention is unsound. The distinction between the transactions here involved and an offense continuous in its character is well settled, as was pointed out by this court in the case of In re Snow, 120 U. S. 274, 7 S. Ct. 556, 30 L. Ed. 658. There it was held that the offense of cohabiting with more than one woman, created by the Act of March 22, 1882, c. 47, 22 Stat. 31 (now 18 USCA § 514) was a continuous offense, and was committed, in the sense of the statute, where there was a living or dwelling together as husband and wife. The court said (pages 281, 286 of 120 U. S., 7 S. Ct. 556, 559):

'It is, inherently, a continuous offense, having duration; and not an offense consisting of an isolated act. * * *

'A distinction is laid down in adjudged cases and in text-writers between an offense continuous in its character, like the one at bar, and a case where the statute is aimed at an offense that can be committed uno ictu.'

The Narcotic Act does not create the offense of engaging in the business of selling the forbidden drugs, but penalizes any sale made in the absence of either of the qualifying requirements set forth. Each of several successive sales constitutes a distinct offense, however closely they may follow each other. The distinction stated by Mr. Wharton is that, 'when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.' Wharton's Criminal Law (11th Ed.) § 34. Or, as stated in note 3 to that section, 'The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. * * * If the latter, there can be but one penalty.'

In the present case, the first transaction, resulting in a sale, had come to an end. The next sale was not the result of the original impulse, but of a fresh one—that is to say, of a new bargain. The question is controlled, not by the Snow Case, but by such cases as that of Ebeling v. Morgan, 237 U. S. 625, 35 S. Ct. 710, 59 L. Ed. 1151. There the accused was convicted under several counts of a willful tearing, etc., of mail bags with intent to rob. The court (page 628 of 237 U. S., 35 S. Ct. 710, 711) stated the question to be 'whether one who, in the same transaction, tears or cuts successively mail bags of the United States used in conveyance of the mails, with intent to rob or steal any such mail, is guilty of a single offense, or of additional offenses because of each successive cutting with the criminal intent charged.' Answerint this question, the court, after quoting the statute, section 189, Criminal Code, (U. S. C. title 18, § 312 [18 USCA § 312]) said (page 629 of 237 U. S., 35 S. Ct. 710, 711):

'These words plainly indicate that it was the intention of the lawmakers to protect each and every mail bag from felonious injury and mutilation. Whenever any one mail bag is thus torn, cut, or injured, the offense is complete. Although the transaction of cutting the mail bags was in a sense continuous, the complete statutory offense was committed every time a mail bag was cut in the manner described, with the intent charged. The offense as to each separate bag was complete when that bag was cut, irrespective of any attack upon, or mutilation of, any other bag.'

See, also, Ex parte Henry, 123 U. S. 372, 374, 8 S. Ct. 142, 31 L. Ed. 174; Ex parte De...