Hale v. United States, 4160.

• Decision Date: 12 April 1937
• Docket Number: No. 4160.,4160.
• Citation: 89 F.2d 578
• Parties: HALE v. UNITED STATES
• Court: U.S. Court of Appeals — Fourth Circuit

89 F.2d 578 (1937)

HALE v. UNITED STATES

No. 4160.

Circuit Court of Appeals, Fourth Circuit.

April 12, 1937.

George Richardson, Jr., of Bluefield, W. Va. (J. H. Gadd and Walter G. Burton, both of Princeton, W. Va., on the brief), for appellant.

L. R. Via, Asst. U. S. Atty., of Huntington, W. Va. (George I. Neal, U. S. Atty., of Huntington, W. Va., and Charles M. Love, Jr., Asst. U. S. Atty., of Charleston, W. Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal in a criminal case wherein the defendant was convicted on one count of an indictment charging violation of the Harrison Act. The sufficiency of the count under which the conviction was had was challenged both by demurrer and by motion in arrest of judgment; and, as we are of opinion that it is defective, we need not consider any of the other questions raised by the appeal. The count in question is the sixth count and is as follows:

"That heretofore, to-wit, on or about the 10th day of September, A. D. 1934, at Princeton, County of Mercer, State of West Virginia, District aforesaid and within the jurisdiction of this Court, Luther F. Hale did knowingly, wilfully, unlawfully and feloniously sell, dispense and distribute to E. W. Cruise, alias R. E. Baker, derivatives of opium, to-wit: two (2) grains of morphine sulphate which were not then and there sold, dispensed and distributed in the original stamped package, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States."

This count of the indictment was drawn under 26 U.S.C.A. § 1043, which provides that "it shall be unlawful for any person to purchase, sell, dispense, or distribute any of the drugs mentioned in section 1040 (a) except in the original stamped package or from the original stamped package." Wholesalers sell in the original stamped package, within the meaning of this section; retailers from the original stamped package. 26 U.S.C.A. § 1391 (c) (d). The initial language of section 1043 is in the form of an absolute prohibition of purchase or sale, but this is followed by an exception which permits those who have registered and paid the tax required of them to purchase or sell, provided they do so "in" the original stamped package or "from" the original stamped package. The exception is in the disjunctive, which means that one who is registered need not sell both "in" and "from" an original stamped package. Flowers v. United States (C.C.A. 8th) 83 F.(2d) 78. A sale of drugs does not constitute a crime under this particular section, therefore, even though it be made in an unstamped package, unless it be made also "from" an unstamped package. The count of the indictment was defective because, in addition to charging that the sale was not made in the original stamped package, it did not charge that such sale, which was a retail sale, was not made from an "original stamped package."

It is elementary that every ingredient of the crime must be charged in the bill, a general reference to the provisions of the statute being insufficient. The Schooner Hoppet & Cargo v. United States, 7 Cranch, 389, 3 L.Ed. 380; Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; United States v. Standard Brewery, 251 U. S. 210, 40 S.Ct. 139, 64 L.Ed. 229. And "if the negation of an exception in the enacting clause of a statute is essential to accurately describe the offense, then the accusations of the indictment must show that the accused is not within the exception." Weare v. United States (C.C.A.8th) 1 F. (2d) 617, 620; United States v. Cook, 17 Wall. 168, 174, 21 L.Ed. 538; Ledbetter v. United States, 170 U.S. 606, 611, 18 S.Ct. 774, 42 L.Ed. 1162; 31 C.J. 720.

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