Casey v. United States, 500

Citation48 S.Ct. 373,72 L.Ed. 632,276 U.S. 413
Decision Date09 April 1928
Docket NumberNo. 500,500
CourtU.S. Supreme Court

Mr. John T. Casey, of Seattle, Wash., for petitioner.

[Argument of Counsel from page 414 intentionally omitted] The Attorney General and Mr. W. D. Mitchell, Sol. Gen., of Washington, D. C., for the United States.

[Argument of Counsel from page 415 intentionally omitted] Mr. Justice HOLMES delivered the opinion of the Court.

The petitioner, Casey, was convicted upon two counts of an indictment, the first of which charged him with the purchase of three and four-tenths grains of morphine not in or from the original stamped package, at Seattle, within the jurisdiction of the Court. The conviction was sustained by the Circuit Court of Appeals. 20 F.(2d) 752. A writ of certiorari was granted by this Court.

Here the second count was admitted by the Government to be bad, so that the only matter to be considered is whether the conviction can be sustained upon the first. It is argued that the evidence is not enough.—Casey had practiced law in Seattle for many years, had been in the habit of visiting King County jail and had defended prisoners addicted to the use of narcotics. There was evidence tending to show that on different occasions he had promised to furnish them with opiates, and that in pur- suance of such promises and for pay received by him he had given or sent to them preparations of morphine, concealed, it was said, by soaking towels or the like in a solution of the drug. If this evidence was believed it showed that Casey was in possession or control of what he sent and it safely may be inferred that he did not proclaim his illegal purpose by putting stamps upon the towels. But the charge is a purchase, not a sale. There was no testimony directly concerning the purchase and the Government relies in part at least upon the presumption of a violation of section 1 of the Act of December 17, 1914, c. 1, as amended by the Act of February 24, 1919, c. 18, § 1006; 40 Stat. 1057, 1130, 1131, that that section purports to create. C. title 26, § 692 (26 USCA § 692; Comp. St. § 6287g).

The amended section makes the purchase, sale, etc., of opium and derivatives unlawful except in or from the original stamped package, and the absence of the required stamps from any of the said drugs 'shall be prima facie evidence of a violation of this section by the person in whose possession same may be found.' For the petitioner it was argued that the presumption thus created does not and, consistently, with the Sixth Amendment to the Constitution, cannot extend so far as to show a purchase within the district and thus to bring the case within the jurisdiction of the trial Court. The Circuit Court of appeals answered that the objection to the venue was not raised specifically below. The Court was asked to direct a verdict for the defendant on the ground that the evidence was not sufficient and elsewhere it has been held that such a request is enough to save the question, and that a presumption extended to the place of purchase could not be upheld. Brightman v. United States (C. C. A.) 7 F.(2d) 532; Cain v. United States (C. C. A.) 12 F.(2d) 580; Hood v. United States (C. C. A.) 14 F.(2d) 925; De Moss v. United States (C. C. A.) 14 F.(2d) 1021. But we are of opinion that upon the facts of this case the Court was right. If the jury believed that the defendant, long established in Seattle, said that he has not the drug, but would, and shortly thereafter did, furnish it, the inference that he bought it in Seattle is strong, and it is reasonable to suppose that if attention had been called to the point the inference could have been made stronger still. But the effort of the defense did not stop at this detail but was to show that Casey had nothing to do with the business and was wholly innocent of the offense charged.

With regard to the presumption of the purchase of a thing manifestly not produced by the possessor, there is a 'rational connection between the fact proved and the ultimate fact presumed' (Luria v. United States, 231 U. S. 9, 25, 34 S. Ct. 10, 58 L. Ed. 101; Yee Hem v. United States, 268 U. S. 178, 183, 45 S. Ct. 470, 69 L. Ed. 904). Furthermore there are presumptions that are not evidence in a proper sense but simply regulations of the burden of proof. Greer v. United States, 245 U. S. 559, 38 S. Ct. 209, 62 L. Ed. 469. The statute here talks of prima facie evidence, but it means only that the burden shall be upon the party found in possession to explain and justify it when accused of the crime that the statute creates. 4 Wigmore, Evidence, § 2494. It is consistent with all the constitutional protections of accused men to throw on them the burden of proving facts peculiarly within their knowledge and hidden from discovery by the Government. 4 Wigmore, Evidence, § 2486. In dealing with a poison not commonly used except upon a doctor's prescription easily proved, or for a debauch only possible by a breach of law, it seems reasonable to call on a person possessing it in a form that warrants suspicion to show that he obtained it in a mode permitted by the law.-The petitioner cannot complain of the statute except as it affects him.

We do not feel at liberty to accept the suggestion that the Government induced the crime. A Court rarely can act with advantage of its own motion, and very rarely can be justified in giving judgment upon grounds that the record was not intended to present. Upon this record, it was testified and might have been found for the Government that after Casey's visits addicts were noticed by the jailers to be under the influence of narcotics and that on a previous occasion Casey for money had got morphine at the request of Cicero, the supposed stool pigeon. It does not appear expressly that this last was told to the jailer before the supposed plot to entrap Casey, but in view of the relation between the parties it was very likely-and had the matter been in issue very probably would have been proved. We do not think that we are entitled to assume the contrary. If known to the jailers there was very probable cause to believe Casey an habitual practitioner. His own language when he was on guard, admitting that he frequently had promised the drug to prisoners, the testimony as to what was said in his presence (to the effect that he was the man who supplied the boys with narcotics when they wanted it) and his language importing habit (as, that he hadn't a thing with him today) all tend to the same conclusion. We hardly can assume that the jailers did not know the facts in order to convict them of a gross wrong, when we keep in mind that the case was tried and the record made up without this in mind. Furthermore Casey according to the story, was in no way induced to commit the crime beyond the simple request of Cicero to which he seems to have acceded without hesitation and as a matter of course. According to the evidence, he seems to have promised morphine to Nelson, who does not appear to have been in the supposed plot. We are not persuaded that the conduct of the officials was different from or worse than ordering a drink of a suspected bootlegger. Whatever doubts we may feel as to the truth of the testimony we are not at liberty to consider them on the only question before the Court. The grounds for uneasiness can be considered only by another power.

The statute is much more obviously a revenue measure now then when United States v. Doremus, 249 U. S. 86, 39 S. Ct. 214, 63 L. Ed. 493, was decided, and is said to produce a considerable return. Alston v. United States, 274 U. S. 289, 294, 47 S. Ct. 634, 71 L. Ed. 1052. It is too late to attempt to overthrow the whole act on Child Labor Tax Case, 259 U. S. 20, 42 S. Ct. 449, 66 L. Ed. 817. It is said also that no opium is produced in the United States, and at all events the statute has been so modified that now at least United States v. Jin Fuey Moy, 241 U. S. 394, 36 S. Ct. 658, 60 L. Ed. 1061, does not apply to this case. United States v. Wong Sing, 260 U. S. 18, 21, 43 S. Ct. 7, 67 L. Ed. 105. We pass as not needing discussion some minor points.

Judgment upon the first count affirmed.

Mr. Justice McREYNOLDS.

I accept the views stated by Mr. Justice BUTLER. With clarity he points out the unreasonableness of the construction of the statute advocated by counsel for the United States. But I go further.

The provision under which we are told that one may be presumed unlawfully to have purchased an unstamped package of morphine within the district where he is found in possession of it conflicts with those constitutional guaranties heretofore supposed to protect all against arbitrary conviction and punishment. The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.

Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.

Probably most of those accelerated to prison under the present act will be unfortunate addicts and their abettors; but even they live under the Constitution. And where will the next step take us?

When the Harrison Anti-Narcotic Law (26 USCA §§ 211, 691-707; Comp. St. §§ 6287g-6287q) became effective, probably some drug containing opium could have been found in a million or more households within the Union. Paregoric, laudanum, Dover's Powders, were common remedies. Did every man and woman who possessed one of these instantly become a presumptive criminal and liable to imprisonment unless he could explain to the satisfaction of a jury when and where he got the stuff? Certainly, I cannot assent to any such notion, and it seems worthwhile to say so.

Mr. Justice BUTLER concurs in...

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