Dean v. United States

• Decision Date: 06 July 1920
• Docket Number: 3459.
• Citation: 266 F. 694
• Parties: DEAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

266 F. 694

DEAN v. UNITED STATES.

No. 3459.

United States Court of Appeals, Ninth Circuit.

July 6, 1920

Warren L. Williams and Seymour S. Silverton, both of Los Angeles Cal., for plaintiff in error.

Robert O'Connor, U.S. Atty., and Gordon Lawson, Asst. U.S Atty., both of Los Angeles, Cal.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff in error was convicted on two counts of an indictment, which charged him with violation of the Harrison Narcotic Act, as amended by Act Feb. 24, 1919, 40 Stat. 1057 and sentences of imprisonment for terms to run consecutively were imposed by the court. No demurrer or other objection was interposed to the indictment in the court below, but it is now contended that the first count is fatally defective for failure to state facts sufficient to constitute an offense. Act Feb. 24, 1919, provides in part as follows:

'It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs except in the original stamped package or from the original stamped package; and the absence of appropriate tax paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section by the person in whose possession same may be found. ' Comp. St. Ann. Supp. 1919, Sec. 6287g.

The first count charged:

That the plaintiff in error did knowingly, etc., 'purchase, sell, dispense, and distribute cocaine in and from a certain tin box, which said tin box was not then and there the original stamped package containing said cocaine.' The count goes on:

'That is to say, the said defendant' did have in his possession the said tin box containing cocaine, consisting of about one-half an ounce, and that the 'said tin box then and there containing said cocaine did not then and there bear and have affixed thereon appropriate tax paid stamps as required by the act of Congress approved December 17, 1914, known as the Harrison Narcotic Law.'

The plaintiff in error contends that no offense against the act as amended is involved in the charge that the plaintiff in error had cocaine in his possession, and that a violation of the statute can only be committed by purchasing, dispensing and distributing narcotics from packages which have not affixed thereon appropriate tax paid stamps. It may be conceded that the purpose of the statute is to prohibit the purchase, sale, and distribution of...