Bruce v. United States

• Citation: 202 F. 98
• Decision Date: 28 December 1912
• Docket Number: 3,805.
• Parties: BRUCE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

202 F. 98

BRUCE et al. v. UNITED STATES.

No. 3,805.

United States Court of Appeals, Eighth Circuit.

December 28, 1912

[Copyrighted Material Omitted]

Chester H. Krum and P. H. Cullen, both of St. Louis, Mo. (Barclay Fauntleroy & Cullen, of St. Louis, Mo., on the brief), for plaintiffs in error.

Homer Hall, Asst. U.S. Atty., of Trenton, Mo. (Charles A. Houts U.S. Atty., and Charles H. Daues, Asst. U.S. Atty., both of St. Louis, Mo., on the brief).

Before SANBORN and CARLAND, Circuit Judges, and W. H. MUNGER, District judge.

CARLAND Circuit Judge.

Plaintiffs in error were tried, convicted, and sentenced upon an indictment, the first count of which reads as follows:

'The grand jurors of the United States, impaneled, sworn, and charged at the term aforesaid of the court aforesaid, on their oath present: That Ryland C. Bruce and R. C. Prewitt, whose Christian name is to the grand jurors aforesaid unknown, heretofore, to wit, on or about the 12th day of June, 1911, within the division and district aforesaid, and within the jurisdiction of the court aforesaid, under the name of the Delta Chemical Company, did then and there unlawfully, knowingly, and feloniously deposit, and cause to be deposited, for mailing and delivery, in the mails of the United States, to wit, in the post office of the United States at St. Louis, in the state of Missouri, certain nonmailable matter, to wit, an article and composition containing poison-- that it so say, containing large quantities of a drug known as morphine-- which poisonous compound is known as 'Habitina,' which said article and composition so containing said morphine was contained in a package then and there addressed to H. W. Duckworth, Bloomfield, Iowa, and which said package was postmarked St. Louis, Mo., bearing return card as follows, to wit: 'Suite 1105-8 Holland Bldg., St. Louis, Mo., U.S.A.'-- and which said matter then and there mailed as aforesaid was not then and there addressed to and intended for a licensed physician, surgeon, pharmacist, or dentist, as prescribed and permitted under the rules and regulations promulgated by authority of law by the Postmaster General of the United States, all of which they, the said Ryland C. Bruce and R. C. Prewitt, whose Christian name is to the grand jurors aforesaid unknown, then and there well knew: Contrary to the form of the rules and regulations prescribed by the Postmaster General of the United States, and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.'

The second count, in substance, charged Ryland C. Bruce and R. C. Prewitt with having unlawfully, knowingly, and feloniously devised a scheme and artifice to defraud for the purpose of obtaining from divers persons money and property by false and fraudulent representations and pretenses sent through the post office establishment of the United States. The scheme as set forth in the indictment was that the above-named persons, in the name of the Delta Chemical Company, would, by advertisements, pamphlets, and letters sent through the mails of the United States, claim to have a drug and preparation called, 'Habitina' which would effect a cure of the morphine habit; that by taking said medicine as directed, and without further assistance, such person would become free of the habit of using morphine, whereas, in truth, said 'Habitina' was in fact and almost entirely the drug called morphine and that the use of said drug would not cure said drug habit, and contained no curative properties for said habit; that in furtherance of said scheme and artifice to defraud, and as a part thereof, said Ryland C. Bruce and R. C. prewitt, under the name above mentioned, unlawfully, willfully, knowingly, and feloniously on or about the 8th day of January, 1910, did deposit and cause to be deposited in the mails of the United States, to wit, in the post office of the United States at St. Louis, in the state of Missouri, for mailing and delivery, a certain letter and envelope, which letter is set forth in the indictment.

The indictment contained a third count, but, as there was no evidence offered in support of it, it may be dismissed from consideration.

Counts 1 and 2 of the indictment are attacked in the briefs of counsel for plaintiffs in error as insufficient in respect to some of the allegations therein, but, as no objection was made to the indictment in the trial court, no assignments of error are before us which would allow us to consider the sufficiency of the indictment as a pleading. The first count of the indictment, however, as appears from its language, charges a violation simply of a regulation of the Postmaster General. It was claimed in the trial court that the regulation upon which the first count of the indictment is based was promulgated without authority of law, and the point is again urged in this court.

A certified copy of the regulation in question was offered at the trial, and its admission as evidence was objected to by counsel for plaintiffs in error, for the reason that it was unauthorized. It is true that the court would have had the right to take judicial notice of the regulation when called to its attention, without its being offered in evidence. Caha v. United States, 152 U.S. 211, 14 Sup.Ct. 513, 38 L.Ed. 415. We simply state the fact of its offer to show that the point regarding the validity of the regulation was properly saved. Indeed, as we must take judicial notice of the laws of Congress which would confer upon the Postmaster General the authority to promulgate the regulation, the point would be open at any time upon the record without a bill of exceptions, as the indictment would not support the judgment rendered on the first count if the regulation claimed to have been violated was unauthorized. We therefore proceed to discuss the validity of this regulation.

The authority of the Postmaster General to make the regulation, if it exists at all, must be found in the following part of section 217 of 'An act to codify, revise and amend the penal laws of the United States' (35 Stat. 1131):

'All kinds of poison, and all articles and compositions containing poison, and all poisonous animals, insects, and reptiles, and explosives of all kinds, and inflammable materials, and infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, and all disease germs or scabs, and all other natural or artificial articles, compositions, or materials of whatever kind which may kill, or in any wise hurt, harm, or injure another, or damage, deface, or otherwise injure the mails or other property, whether sealed as first-class matter or not, are hereby declared to be nonmailable matter, and shall not be conveyed in the mails or delivered from any post office or station thereof, nor by any letter carrier; but the Postmaster General may permit the transmission in the mails, under such rules and regulations as he shall prescribe as to preparation and packing, of any articles hereinbefore described which are not outwardly or of their own force dangerous or injurious to life, health, or property. * * * Whoever shall knowingly deposit or cause to be deposited for mailing or delivery, or shall knowingly cause to be delivered by mail according to the direction thereon, or at any place at which it is directed to be delivered by the person to whom it is addressed, anything declared by this section to be nonmailable, unless in accordance with the rules and regulations hereby authorized to be prescribed by the Postmaster General, shall be fined not more than one

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