Cain v. United States

• Decision Date: 06 May 1927
• Docket Number: No. 7625.,7625.
• Parties: CAIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

19 F.2d 472 (1927)

CAIN v. UNITED STATES.^*

No. 7625.

Circuit Court of Appeals, Eighth Circuit.

May 6, 1927.

Donald G. Hughes, of Minneapolis, Minn. (Neil Hughes, of Minneapolis, Minn., on the brief), for plaintiff in error.

James A. Wharton, Asst. U. S. Atty., of St. Paul, Minn. (Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Before BOOTH, Circuit Judge, and FARIS and DAVIS, District Judges.

FARIS, District Judge.

Plaintiff in error, convicted upon each of two counts of an indictment for violating the Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-6287q), for that (1) "he did then and there knowingly deal in, dispense, sell, and distribute" to one Draper, and (2) "unlawfully and feloniously did then and there knowingly send to said Draper certain morphine by mailing same to said Draper," brings error to reverse such convictions and consecutive sentences thereunder of 5 years and a fine of $2,000 on each count.

Defendant, a resident of Minneapolis, Minn., had on several prior occasions, it was discovered, sold morphine to Draper, a resident of California, by sending same through the mail. Certain officers of the state of California, being advised of the former sales by defendant to Draper, induced the latter to write a letter to defendant requesting him to send to Draper an ounce of morphine. In this letter these officers put a post office money order for the sum of $35, and sent the same to defendant at his street address in Minneapolis. In due course, a package came from Minneapolis by registered mail to Draper at Madera, Cal. This package was receipted for by Draper, turned over by him to the officers and when opened found to contain an ounce of morphine hydrochloride. The money order so sent by letter to defendant at Minneapolis was afterwards cashed by defendant; but the evidence shows that the package containing the morphine was not mailed by defendant, but by some woman whose identity was not disclosed upon the trial.

Forty-five errors are assigned as grounds for reversal. Pretermitting the seemingly legal and physical impossibility of any court being able to commit so many errors in a single trial, it may be said that for the major part these assignments are frivolous, and served below merely to waste time and hamper orderly procedure, and serve here only to needlessly increase the bulk of the record.

Some of these alleged errors are strenuously urged, both in the brief and in oral argument, and some of them are, in the view we take of the case, serious. Those so urged, and seemingly especially relied on and meriting discussion are: (a) That the Harrison Anti-Narcotic Act invades the local police powers of the several states, particularly the state of Minnesota, and there exists in the federal Constitution no grant of power to justify such invasion; (b) that the indictment is, as alleged, "double," that is, the second count is a repetition of the first and charges the identical acts as constituting a crime as are charged in the first count; (c) that the jury was improperly constituted, for that it was made up of only a part of the regular panel, the remainder of such panel being engaged in the trial of another case in another court; (d) that the facts shown by the evidence disclose a case of entrapment, for that defendant was induced to commit a crime solely by the machinations and inducements of the officers, which crime he was not in the habit of committing, and which he would not have committed but for such acts and inducements; (e) that the charge of the court, is erroneous, for that the court in his charge, among other things said, "if you find him guilty in one charge, you must find him guilty in both"; and (f) that there is a variance between the charge and the proof, in that the indictment charged simply that morphine was sold and sent, and the proof showed that the specific article dealt with in both counts was morphine hydrochloride.

The question of the constitutionality of the Harrison Anti-Narcotic Act has been raised in quite a number of cases and quite a respectable part of bench and bar has doubted its validity. But it was held valid by this court in the case of Hughes v. United States, 253 F. 543, and by the Supreme Court of the United States, in the cases of Webb v. United States, 249 U. S. 96, 39 S. Ct. 217, 63 L. Ed. 497, United States v. Doremus, 249 U. S. 86, 39 S. Ct. 214, 63 L. Ed. 493, United States v. Jin Fuey Moy, 241 U. S. 394, 36 S. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854, and United States v. Wong Sing, 260 U. S. 18, 43 S. Ct. 7, 67 L. Ed. 105, as also, on particular phases, in many other cases. While the Supreme Court in the case of United States v. Daugherty, 269 U. S. 360, 46 S. Ct. 156, 70 L. Ed. 309, seems by some language therein to voice a doubt as to the constitutional validity of the act and to invite another attack thereon, this fact does not so far amount to a declaration of invalidity as to authorize a court of inferior jurisdiction to fly in the face of the express holdings in the Doremus Case, and Jin Fuey Moy Case, and others cited above. Teter v. United States (C. C. A.) 12 F.(2d) 224; Sofge v. Snook (C. C. A.) 15 F.(2d) 561. Till the Supreme Court of the United States shall see fit to change its ruling, both the law and decent comity forbid this court's attempting to do so for it, whatever upon the point may be the personal views of any or of all of its constituent members.

The question whether the first count does not embrace the identical facts and acts charged in the second count is a serious and difficult one. That the two statutes are so far dissimilar as that both may be violated, and that both are capable of violation by wholly dissimilar acts, is too plain for dispute. The trouble is not with the law but with the facts. This possibility of a violation of either statute by wholly different acts is readily demonstrable. Many of the cases seem to make the latter possibility the test which saves the situation from double jeopardy. We think, however, it is a question of what was actually done rather than a question of what might have been done. Defendant concededly might have made a sale of morphine without sending such morphine through the mail, or he might have sent morphine through the mail, or shipped it by express or by freight, and thus have been guilty on the second count, without making a sale. The matter is one about which in principle there is some seeming diversity of opinion. Cf. Gray v. United States (C. C. A.) 14 F.(2d) 366, and Roark v. United States (C. C. A.) 17 F.(2d) 570. This is obviously so, if the law has not been settled by the opinion of the Supreme Court of the United States in the late case of Albrecht v. United States, 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. ___. Again, whether the Albrecht Case is in conflict with the Gray Case and thus the paramount law is not wholly clear, because of a fact in the former (which we italicize in the below excerpt), which was not present in the Gray Case. This possibly distinguishing fact is embodied in the below excerpt thus: "One may obviously possess liquor without selling, and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case." In other words, defendant in the Albrecht Case had already consummated or committed the offense of unlawfully possessing liquor before he began the act or series of acts which made him guilty of the unlawful sale of liquor.

In the case at bar defendant had, it is true, already begun to commit the offense of unlawfully selling morphine before he began doing the act which made him guilty of sending morphine by mail to Draper. He had already received payment of the purchase price and had impliedly agreed to sell. The single fact of delivery was the only element remaining to be done in order to consummate the unlawful sale. This act of delivery was had by sending the morphine by mail, and not by the act of a manual transfer from buyer to seller. Thus the delivery which was necessary to consummate the sale was had in a manner and form and by an act which has itself been by statute denounced as an offense. The act of delivery through the use of the mail was in this case an element necessary to both offenses, and without which neither could have been consummated. And defendant, having both offenses in course of final commission, completed them both by the doing of one identical act. If he had repented, but the instant before he made the delivery, he would not have been guilty, and could not have been convicted of either offense.

The cases of Morgan v. Devine, 237 U. S. 632, 35 S. Ct. 712, 59 L. Ed. 1153, Burton v. United States, 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362, Gavieres v. United States, 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489, Ebeling v. Morgan, 237 U. S. 625, 35 S. Ct. 710, 59 L. Ed. 1151, and Colbeck v. United States (C. C. A.) 14...