Gee Woe v. United States

• Decision Date: 10 April 1918
• Docket Number: 3206.
• Citation: 250 F. 428
• Parties: GEE WOE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

250 F. 428

GEE WOE v. UNITED STATES.

No. 3206.

United States Court of Appeals, Fifth Circuit.

April 10, 1918

Rehearing Denied May 24, 1918.

Nicholas G. Carbajal and Theodore E. Roehl, both of New Orleans, La for plaintiff in error.

Joseph W. Montgomery, U.S. Atty., and Nicholas Callan, Asst. U.S Atty., both of New Orleans, La.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

Plaintiff in error was tried on an indictment, which contained three counts. He was acquitted on the second count, and it requires no further consideration. The first count charged him with receiving and concealing three tins of smoking opium, after importation, knowing the same to have been imported in violation of the act of February 9, 1909, as amended by the act of January 17, 1914. The third count charged him with being a dealer in opium, and with not having registered and paid the special tax as required by the act of December 17 1914.

The plaintiff in error insists the evidence in the record does not warrant a conviction under either count of the indictment. The first count charged defendant with having received and concealed three tins of smoking opium, after importation, knowing it to have been imported contrary to law. The evidence relied upon by the government to convict upon this count was that tending to show that defendant had in his possession, just before his arrest, three tins of smoking opium. Section 1 of the amending act of January 17, 1914 (38 Statutes at Large, 275), prohibits the importation of smoking opium without exceptions after April 1, 1909. Section 2 makes it unlawful to receive or conceal imported opium, after importation, knowing it to have been imported contrary to law, and provides that possession of imported opium shall be deemed sufficient evidence to warrant conviction, unless the defendant explains the possession to the satisfaction of the jury. Section 3 (Comp. St. 1916, Sec. 8801a) provides that after July 1, 1913, all smoking opium within the United States is presumed to have been imported after April 1, 1909, and hence contrary to law, and the burden is on the accused to rebut the presumption. If these provisions of the act of January 17, 1914, are valid and unrepealed, the government made a prima facie case, if it introduced evidence tending to show that defendant had possession of the three tins of smoking opium. That presumptions of this and like kind, rebuttable and explainable by the accused persons, are within the competency of Congress to create, is well settled. Luria v. U.S., 231 U.S. 9-25, 34 Sup.Ct. 10, 58 L.Ed. 101; United States v. Yee Fing (D.C.) 222 F. 154. That nothing contained in the act of December 17, 1914 (Harrison Act; 38 Statutes at Large, 786), has the effect of repealing the provisions cited of the act of January 17, 1914 (chapter 9, 38 Stat. 275), appears from the express disclaimer of any such intent on the part of Congress in section 12 of the Harrison Act. Nor is there any inconsistency between the provisions of that act, the act of January 17, 1914 (chapter 10, 38 Stat. 277), regulating the manufacture of smoking opium, and the act in question. There is nothing in either of these acts which makes lawful the importation of smoking opium into this country.

Nor is there any language in the opinion of the Supreme Court in the case of United States v. Jin Fuey Moy, 241 U.S. 394 36 Sup.Ct. 658, 60 L.Ed. 1061, Ann. Cas. 1917D, 854, that casts doubt on the power of Congress, as a regulation of foreign commerce, to prohibit the importation of smoking opium and to make possession of smoking opium after a fixed date evidence tending to show that it was imported contrary to law, and known to be so by the possessor. The...